Speak freely

The enemies of free expression are on the march

Last month an Alabama grand jury indicted Barnes & Noble on 32 counts of child pornography. The bookstore's crime: selling the works of two well-known photographers, Jock Sturges and David Hamilton.

In both cases, the books feature photographs of nude children -- but that hardly makes them pornography. Sturges is particularly famous for the book The Last Days of Summer, which features poignant black-and-white nudes of French families vacationing by the water. His work has hung in New York's Museum of Modern Art and the Metropolitan Museum of Art.

"To find the works obscene," Sturges has said, "you'd have to find Homo sapiens between one and 17 inherently obscene. And I find that obscene."

Randall Terry, the onetime head of the antiabortion group Operation Rescue -- who fancies himself a modern-day messiah -- has been leading this latest crusade. Now Barnes & Noble will have to fight an expensive legal battle to defend a right that should not even be in question. And other, smaller shops with fewer legal resources will no doubt second-guess their own offerings.

The case is a reminder that freedom of expression is not so much a guarantee as it is a constant battle. All over the country, there are people in search of new ways to impose their white-bread vision of the world on the rest of us. And with every battle they win on the margins, the society we share becomes more claustrophobic. Some glimpses of the new world:

Banning music. In part because of pressure from then-senator Al Gore and his wife, Tipper, the music industry agreed in 1985 to place parental advisory stickers on recordings that might be considered offensive. The danger is that this "voluntary" measure may cross the line into de facto censorship. Last fall, Congress staged hearings on how to make the advisory system stricter. And a number of states are considering bills that would limit the sale of "offensive" music, in some cases making it a crime to sell labeled albums to minors. One of these bills, in South Dakota, would allow each of nearly 400 counties and municipalities to draft its own "community standard" -- making the sale of controversial music a practical impossibility.

Some stores -- most notably Wal-Mart -- have already refused to carry records with warning labels. And some albums have reportedly been toned down to pass Wal-Mart's muster. (A recent California case raises additional questions: rapper Shawn Thomas was charged with violating his parole because of lyrics on his new album.)

"Disparagement" laws. An even more bizarre development is the rise of state laws that make "reckless" or "malicious" statements about food safety a crime. This type of measure is what Texas ranchers used to drag Oprah into court. Twelve other states have similar laws, and many other states have proposals pending; state senator Bruce Tarr (R-Gloucester) has sponsored one in Massachusetts. Why should a particular industry have a special legal tool to threaten its critics? Will California now pass a computer-software disparagement law? Will Massachusetts pass a mutual-fund disparagement law?

Censored Web pages. A recent New York Times article detailed a new and disturbing trend: people being fired because of the content of personal Web pages that they built on their own time and maintained on their own computers. One Michigan man lost his job after coworkers were disturbed by his short fiction. (An example: a snowman accidentally knocks his wife's head off while making love.) Operating this site was essentially no different from publishing a newsletter out of his home, yet he apparently has no legal protection. And if your employer didn't like your Web site, neither would you.

Boston University professor Alan Wolfe has captured headlines for pointing out something that should not come as a big surprise: most Americans are quite tolerant, and they draw a sharp line between the public and private spheres. Yet past these headlines come story after story, from Massachusetts and beyond, about a few individuals trying to resurrect questions that most of us thought were settled 20 years ago.

Perhaps Americans are too close to see what's happening in our own country, but commentators in Europe are already warning of an emerging cultural fascism here. We fear they are right. And the historical lesson from the Continent is also clear: the time to resist is now -- not later, when it's too late.

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