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Freedom of expression as liberal fantasy: the debate over The People vs. Larry Flynt
Jennifer Petersen Media Culture Society 2007 29: 377 DOI: 10.1177/0163443707076181 The online version of this article can be found at: http://mcs.sagepub.com/content/29/3/377

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Freedom of expression as liberal fantasy: the debate over The People vs. Larry Flynt
Jennifer Petersen
SOUTHWESTERN UNIVERSITY

In late 1996, Czech-born director Milos Forman released a movie he described as a love letter to the US Constitution. The movie was The People vs. Larry Flynt; it focused on the rags-to-riches story of Hustler magazine publisher Larry Flynt and the various court battles he fought over the content of the magazine. From the pre-opening publicity and through to the credits of the film, the movie was draped in the American flag. It was publicized as a celebration of America, free speech and the US judicial system. From the moment it hit the screens, it was also the subject of controversy and a very interesting public discussion of freedom of expression as an American liberty. The positioning of the film as a testament to the Constitution and freedom (and the positioning of Flynt as a hero), and its critical success and eventual Oscar nominations ignited a debate among movie critics, various critics of pornography, civil libertarians and a smattering of legal scholars. Much of this debate turned upon the accuracy or inaccuracy of the films portrayal of Flynt and Hustler magazine, and the moral, political and legal appropriateness of casting Flynt as a hero of American speech rights. Critics suggested that the film had whitewashed Flynt the man and Hustler the magazine, and questioned the movies ethics and convictions for giving no indication of the magazines content.1 These exchanges furthered the movies claim to be serious political discourse, extending discussion of the movie into a public debate on freedom of expression and the American political system. The way in which the actual law of the First Amendment and the rather looser concept of freedom of expression2 were articulated in the media discourse on The People vs. Larry Flynt provides a lucid illustration of popular constructions of political freedom. The discussion, I argue, illustrates the way freedom of expression works to form and limit essentially ideological understandings of
Media, Culture & Society 2007 SAGE Publications (Los Angeles, London, New Delhi and Singapore), Vol. 29(3): 377394 [ISSN: 0163-4437 DOI: 10.1177/0163443707076181]

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Americans as political agents. The reviewers reception of and discourse on The People vs. Larry Flynt treats freedom of expression as emblematic of freedom in general. I suggest, further, that the reviewers over-interpretation of their own legal speech rights and expressive agency works to elide material conditions that limit action, and to symbolize cultural and political freedoms and equality. The discussion highlighted the terms of a particular liberal fantasy-construction of the American political community, in which a fetishistic over-investment in speech and expressive freedom helps create the feeling of a more perfect (egalitarian and pluralistic) democracy. The discussion surrounding The People vs. Larry Flynt is particularly telling, as it exists at the conjunction of discourses about the nation, liberal freedoms, personal expression, gender and sexuality. The presence of so many highly charged issues heightens the connections between the films discourse and actual political debates in the US. The ways in which cultural commentators negotiated the fictive world of the movie with the real political discourse it commented on provides a rich site for analyzing how they desire to see the political. In addition, while the discussion surrounding the movie did not have any particular policy outcomes, it provided an important backdrop for understanding contemporaneous policy debates on media regulation and privatization. Freedom of speech is central to these debates. To recast freedom of speech as deeply embedded within fetishized individualistic ideas of expression expands our engagement with these debates. The discussion of free speech in and around The People vs. Larry Flynt took place at a historical moment of pronounced economic disparities, when the rhetoric of privatization underwrote popular (and major) policy reversals such as welfare reform and the deregulatory Telecommunications Act of 1996, famously granting more leeway, or freedom, to media owners. I argue that the ways in which individualized freedom of expression is articulated in the discourse surrounding The People vs. Larry Flynt illustrates a key part of the ideological and cultural backdrop for these debates and others.

Freedom, fantasy and ideology The idea of freedom of speech is a particularly fundamental principle in the construction of the United States as a nation and of Americans sense of political agency. Our (Americans) freedom of expression is one of the facts that proves our liberty as citizens and, relatedly, the felt superiority of our political community (Downing, 1999; Schauer, 1995). Freedom of expression is often understood in the US as our most basic, and long-lasting freedom and one that defines our liberalism. Though the First Amendment prohibits the government from making any laws that interfere with speech, what this means in practical terms is not immediately clear.

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While freedom of expression reigns as a supreme, timeless and untouchable right in American political discourse, what the First Amendment means in terms of the actual legal speech rights individuals enjoy has varied greatly over the years. Until the early 20th century, the right of citizens to speak in public places was not widely recognized (Kairys, 1982). Nor has freedom of expression historically been understood to cover all speech. Obscenity, libel and incitement to harm are not protected by the First Amendment and therefore can be regulated. Indecent and commercial expression are considered less protected forms of speech and may be subject to limited regulation. And, in practice, legal protections of speech are weighed against other interests, such as property rights and government regulation of conduct.3 In other words, speech rights do not apply with regard to private property, and the government may make conduct such as burning a draft card illegal, due to its status as conduct (in particular, conduct that creates a bureaucratic headache) as well as expression. While governmental regulations on conduct that abuts speech are fairly frequently commented upon in public discourse, the ways in which the conflict between private property and speech curtails dialogue are less common subjects of public discourse. The fact that a set of historically contingent and malleable rights regarding expression have been reified in popular discourse into the essence of individual freedom, and reinscribed in history as an inalienable and constant right dating from the time of the founding fathers, suggests the ideological nature of this popular discourse (Kairys, 1982; Schauer, 1995; Streeter, 1995). This reification of speech rights effectively erases the contingent and contested liberal foundations of First Amendment law and interpretation. Interpretations of speech rights based on liberal individualism focus on the rights of the speaker, as a set of negative rights articulated as freedom from state interference. This approach equates the individual benefits of speech with the public good. This is not the only way of interpreting the First Amendment: some suggest it should be seen as a positive commitment to fostering citizen speech (Jensen and Arriola, 1995; Stein, 2004; Sunstein, 1993). In a public sphere increasingly mediated by corporate media, the traditional liberal interpretations of speech rights may in practice offer more protection to corporate speakers than to individual citizens (Garnham, 1992; Kairys, 1982; Stein, 2004; Streeter, 1995). However, the popular conception of speech rights focuses on the narrowly liberal individualist model. The persistence of this model in the face of diminishing opportunities for actual individuals to speak to one another is, I argue, in part due to the functioning of ideological fantasy. The concept of ideological fantasy, or the imaginary vision of the social system in which subjects are deeply affectively invested, suggests not so much that people are unable to see the world as it is due to false consciousness as the idea that people are invested in the imaginary, ideological character of the world. This investment helps maintain a sense of identity, even iz political agency. Slavoj Z ek (1994, 1997) has argued that we need to revise the classic Marxist notion of ideology as a distorted representation of the real,

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to consider ideology as a more deeply structuring phenomenon, on the level of fantasy. This conception of ideological fantasy sees our attachments to ideology as deeply and affectively driven. Ideological fantasy is not just a question of how we know (and represent) the world. Rather, it is what structures and upholds our social relationships, self-identity and social actions: The illusion is not on the side of knowledge, it is already on the side of real iz ity itself, of what people are doing (Z ek, 1994: 316). Given this, it is possible to see ideology (understood as ideological fantasy) not as a fantastic escape from social and economic reality, but as a fantastic iz construction of social reality. This hinges on Z eks re-working of the concept of the fetish, re-reading Marxs discussion of the commodity fetish through the Lacanian understanding of the fetish. According to Marx, the commodity fetish is the quasi-mystical misrecognition of the social characteristics of mens own labour as objective characteristics of the products of labour themselves (1976: 163). This concept of the fetish proposes an inversion in the real relations between people and the material world, hiding (or iz repressing) the structure of social relations. Z ek re-reads this through Lacan, to suggest that the fetish becomes in contemporary (post-ideological) society the thing that covers up the empty center around which we organize our social networks. A fetishistic relationship to an object is characterized by an orientation toward it as self-evidently true and material, which covers up iz antagonisms (if not in theory, at least in practice [Z ek, 1994]). The concept of ideological fantasy helps explain how contemporary individuals who know better that is, are not ideological dupes continue to invest in structures of domination, often even in the name of freedom. Ideological fantasy, rather than being a distortion of social reality, is a key component of that reality: it is the (fantastic) basis on which we act and interact with one another. As such, it grants constructive powers to discourse. Yet, the concept of ideological fantasy also retains a Marxist concern regarding political and economic systems of domination. The task of ideology critique in this case becomes to point out fetishistic relationships and actions, and to illuminate iz elements of antagonism in social structures (Z ek, 1994). Looking at liberal discourse in terms of ideological fantasy can help refocus attention on the antagonisms at the heart of this fantasy, which are often overlooked. I argue here that the concepts of ideological fantasy and the fetish help to explain the role of freedom of expression in the public discussion of The People vs. Larry Flynt. I wish to suggest that this debate offers a window into more far-reaching conceptions of liberty in the United States, and into the role of expression in these conceptions. The idea that US citizens enjoy equal and far-reaching freedoms is key to national identity (on a macro and individual level). This idea is an ideological fantasy to the extent that it is used to shape institutions, social relations and individual actions in a way that supports the existing relations of power. It helps to understand liberal investments in the idea of absolute freedom of expression, despite evidence to the contrary.

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In order to trace what ideological fantasy(ies) freedom of expression supports in this discussion, I examine the discourse surrounding The People vs. Larry Flynt in the popular press. My analysis derives from a sampling of public discourse in major US papers surrounding the movies release and critical acceptance, up through the conflicts over the movies Oscar nomination. A search of LexisNexis major American papers, magazines and entertainment news databases yielded 52 relevant articles.4 While I engage one text and a limited review of its reception here, the representation and interpretation of speech rights are significant in that they are popular representations that were received (as discussed below) as meaningful, or serious, discourse on free speech. The movie representation relied on certain common understandings in constructing the narrative, and the reviews offer institutionalized interpretations (as public interpretations that are geared toward a wide audience) that voice normative interpretations of the representation, and (as reviews) offer dominant interpretations to anchor movie-goers own interpretations, as comparison or as contrast to the reviewers opinion. In this analysis, I focus on how the popular construction of free speech discursively places expression in relation to social antagonisms and relations of power. As ideological fantasies are spun around fetishized objects, which function to fix a coherent set of symbols, categories or forms of social organization, I look for nodal points that posit equivalencies among disparate objects or symbols. In particular, I focus on what antagonisms are brushed over and compensated for in this discourse, and how. I suggest that the discourse reveals a fetishistic attachment to an individualist notion of freedom of expression, as support of an idealized image of liberal democracy as free of inequality (and coercion). Via an over-identification with Flynt and a construction of freedom as residing solely in symbolic exchange, the public discourse covers over economic antagonisms as well as antagonisms between property rights and speech rights.

Speech rights, freedom and Larry Flynt In numerous interviews and press releases, director Milos Forman positioned The People vs. Larry Flynt as a tribute to the freedoms and Constitution of the United States. In the film itself, this focus is clear from the moment of the credits where the films title appears not in the usual static font, but in the form of an animated American flag, the words taking on the shape of a flag and waving in animation. The narrative form of this tribute is the story of Larry Flynts rise from poor Kentucky boy to multi-millionaire publisher and symbol of the porn industry, fighting with the Supreme Court and various politicians. As Flynt rises in the adult business world, he attracts attention and the string of lawsuits that punctuate the films narrative: from obscenity charges in Ohio to refusal to reveal sources in California to libel in the Supreme Court. The final legal battle, in the

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Supreme Court, provides the films narrative and emotional climax. The case pits Flynt (at this point battered) against right-wing Christian conservative and Moral Majority leader Jerry Falwell. At issue is whether or not Flynt is liable for emotional damages for an insulting satire of Falwell centering on incest in an outhouse.5 Along the way, Flynt is shot and paralyzed from the waist down, has a tragic love affair with one of his strippers (who becomes his business partner) and is imprisoned in a mental institution for contempt of court.

Our Flynt, our selves: the corporation as everyman The film is highly open to being read as a rags-to-riches story, the rise, fall and ultimate triumph of Flynt the businessman. Yet few reviewers or commentators note the business aspect of Flynt. The majority focus solely on the movie as debate about speech, taste and expression, embodied in the character of Larry Flynt. In fact, the critics reading of Flynt can be understood as a highly ideological (and perhaps moralistic) discourse on nation, liberal freedoms and formal equality. The movie portrays Flynt quashing the speech of his employees, summarily upbraiding or firing dissenters as he builds his publishing empire. Yet the reviewers uphold multi-millionaire Flynt as the little guy that the audience is (or should be) rooting for.6 It is notable, yet not noted in the public discourse, that Flynt has banked his first million before his first foray into the courtroom. The question of whether freedom of the press is limited to those who own one, to paraphrase an aphorism, is conspicuously not addressed in the majority of the media discourse. The discursive construction of free speech concerns as essentially a fight between individuals and the government is commonplace in US popular discourse. Yet the extent to which reviewers completely overlooked the tension between individual expression and business interests in the text, and were able to view the head of a successful corporation as emblematic of the little guy is remarkable. The reviewers overwhelmingly equate Flynt and his predicament with theirs and even the viewers associating the ability of ordinary citizens to make their speech heard with Flynts, or at least willfully overlooking any difference between the two positions. This is underscored when Flynt is arrested for the second time and, amid questioning, turns to a journalist and demands, Why do I have to fight for your rights? This identification of the audiences rights with those of Flynt is echoed by reviewers: in both the Boston Globe (Carr, 1997: C-1) and the San Francisco Chronicle (LaSalle, 1997: D-14) reviewers cite a line from the film alleging that if the First Amendment protects a scumbag like Flynt, it protects us all. The language of martyrdom is echoed in many reviews, which suggest that Flynt sacrificed his time, money and emotional comfort (in his court battles) for the rights of all Americans or fought the good fight to protect the rights of artists (Guthmann, 1996: 41). Jeff Millar of the Houston Chronicle expressed this idea most literally:

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In the infantry, there is the man who walks point, at the head of a platoon. It is this man who is most likely to catch the first bullet in an ambush, walk on the land mine and trip the booby trap. When he does this, he makes the route safer for all who walk behind him. Publisher Larry Flynt has walked point here at home. He has trod on legal land mines, sought out trip wires and, in fact, caught an actual bullet. Any other member of the platoon who makes his or her living off the First Amendment owes Flynt a medal. (1997: Weekend-1)

While Millar is more explicit (and hyperbolic) than most reviewers, he expresses a common theme, of identification with or gratitude to Flynt for paving the way. In imagining an equivalence between themselves and Flynt, the journalists may be expressing their gratitude for the leeway they have in their work, but they are also over-interpreting their agency and influence. Flynt, as the owner of his press, was able to print (some of) what he wanted: he is limited by libel, obscenity and fighting words laws.7 Journalists face many more limits on what they can say, from publisher to editor. In practice, the rules of ownership trump rights of expression. Everything must be approved before it is written and vetted once it is. It is reasonable to assume the journalists know this, yet they overwhelmingly speak as if they did not (and perhaps fantasize that they act as if they did not). Similarly, the final court case (in which Flynt appears before the Supreme Court) is often taken by the reviewers to be the moral statement of the film if not its namesake and to be proof that Flynts actions paved the way for their own. This is expressed in reviewers endorsement of a quote attributed to Flynt that noted that defending Flynts right to satirize Falwell was equal to defending the freedoms of every American citizen (Grenier, 1997: 11A; Mauro, 1996: 1-D). The equation of Flynt with everyman serves to equate our freedoms with those of the corporation. While the reviews (and the legal discourse in the film) focus on individual speech rights, those championed in the film appear to be the corporations: the case before the Supreme Court was actually titled Hustler Magazine vs. Falwell, and turned on whether or not there could be a lower standard for finding emotional damages against media outlets than for proving libel. In essence, the case found that the First Amendment protects media outlets against civil damages suits brought by public figures.8 It is true that this is an important practical factor in allowing the press to print political satire and opinion. But it is also telling that a decision concerned with protecting media businesses from the economic costs of civil (private) lawsuits came to represent political and personal freedom of expression for so many reviewers: in one critics words, the case represented a crucial defense of American liberties (Ebert, 1996: 33). For others, a loss in this case would have meant quite simply, the end of freedom as we know it (Alter, 1996: 64; Mauro, 1996: 1-D). The American liberties at stake are technically those of the corporation; the speech or freedom protected, celebrated, and equated with that of the viewers, is in

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fact that of a corporate entity. Of course, this is explicitly what the reviewers ideologically refuse to confront. It is not that the reviewers are blinded to, or unable to see, the differences between themselves and Flynt. Rather, their identification with Flynt the man becomes the center of a fantastic construction in which anyones speech is equal to that of Hustler magazines speech. This willed equation of the speech printed in Hustler magazine with the speech of the average viewer equates the viewers agency to a corporations, overlooking the abyss of technology (Winston, 1988: 283) that separates a publishers access to speech from an average citizens. The desire to see speech rights in terms of the individual and of the speaker (rather than in terms of a public good, for example) is ideological in itself (Allen, 1995; Downing, 1999), a willed fantasy of the political community as one composed of equals in face-to-face dialogue with one another. This is a vision that fails to describe the way politics (and culture) function in large-scale societies. The ideas that large-scale media texts are expressions of an individual, and that media texts answer to individual needs and choices via the market, serve to keep the way we think about (and regulate) communication out of alignment with the way we do politics (Garnham, 1992: 3668) in a way that favors those in power and disables those at the margins. In celebrating unfettered corporate speech as equivalent to American freedom or liberties, the reviewers further an equivalence between consumption and production. A private individuals right to purchase (or not) speech is equated with his or her right to speak. In the first trial of the movie, Flynts lawyer instructs the jury that they do not need to like Flynt, but that they should like the fact that you and I live in a country where we can make that decision for ourselves. I can exercise my opinion and not buy it. I like that I have that right, and you should too. This discursive positioning is echoed by reviewers who equate the speech of producers with a consumer choice to buy or not to buy, in which Larry Flynts right to speak is equated with the individuals right to ignore his speech or refuse to purchase it (Millar, 1997; Royko, 1997). Following this logic, any regulation of the producer is a regulation of the consumers speech (understood as consumption of someone elses speech). While it might seem woefully disempowering to characterize the average citizens speech rights as exhausted by a consumerist choice to buy or not to buy someone elses (generally, a corporate entitys) speech, the reviewers and commentators do not take this position. Rather, they take cheer in Hustler Inc.s ability to speak for them. Through over-identification with Flynt, the viewer is free to enjoy Flynts agency to speak, earned through his status as iz owner of the means of production. In this, Flynt acts as a sort of Z ekian fetish-object. If one of the modern forms of misrecognition is of anothers iz action as ones own (Z ek 1997: 11415), here we see a misrecognition of anothers speaking agency as the subjects own. Flynt the person is misrecognized as acting for individuals, yet Flynt acts not as an individual but as the head of a corporation. This ability of corporate speech rights to stand in for

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individual ones is a key support to liberal traditions of negative speech rights. It is also, I would suggest, a major obstacle in arguing that regulatory reforms may further speech rights and opportunities for individuals.9 Even though some reviewers discussed individual speech in explicitly consumerist terms, most avoided direct mention of the relationship between speech and money. Reviewers who embraced the film cheered it as wholehearted proof of the liberal freedoms of US political discourse. Some more critical commentators bemoaned the seeming contradiction between the films message and its content, complaining that Formans speech was not as courageous as Flynts. These comments focused on the opposition between the way the film-makers and studio positioned the film as celebrating the freedom to print unpalatable speech and the fact that the film shied away from controversial images and topics in a search of more palatable (consumable) content. It was, considering the topic, a very demure film. When asked about this disjuncture, Milos Forman noted that he could not have added actual images from Hustler, or more nudity and sexuality, because it would have caused problems with distribution (Holmstrom, 1997; Seiler, 1996). This contradiction, while noted, was not taken by most commentators as related to the topic of freedom of expression: only two writers remarked on this disjunction in terms of self-censorship or a conflict between money and speech. While discussion about the movie and its representation of Hustler magazine was heating up, a group of women working in the film industry took out an ad protesting the movies Oscar bid. They did so, however, anonymously, through an intermediary organization. The women said that they felt the need to remain anonymous because they feared losing their jobs if they publicly spoke up against the movie (Weinraub, 1997: C-3). This confrontation as well might be taken to illustrate the ways in which money and power curb and enable different speech. Yet this example was largely hailed as proof of the success of the US system of governance as proof that everyone could get their voice heard that everyones expression is (equally) free. This is characteristic of cynical ideology, as the fantastic construction of social reality, as a iz support for individual identity and social relationships (Z ek, 1994). The fact that this ad took the form of a paid ad, and that the women expressed economic considerations as curtailing their ability to speak more openly or in other venues, did not register to challenge the liberal fantasy of equal freedom. The mediating issues of money and power were, by and large, not connected to these incidents. The economic need to clean up Flynt and Hustler in order to make a more palatable movie (ironically, one championing the ability of Americans to engage in unpalatable speech), and the economic and social pressures mediating the protests of the womens speech are vivid examples of the paradoxes and contradictions at the heart of speech rights in liberal capitalism. That the commentators do not see these paradoxes as paradoxes, but as proofs of our near-perfect freedoms, is perhaps the clearest argument for an ideological and fantastic investment in the idea of freedom of expression.

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In refusing to see the antagonisms that underlie (and indeed drive the legal engagement with) speech rights, the commentators rhetorically construct a more perfect democracy than evidence would suggest actually exists. By acting on the assumption that there are equal opportunities to speak, the commentators engage in ideological fantasy, refusing to see antagonisms based on differential access to money, power and technology. By identifying with the man and as I will argue in the following section, focusing on speech in terms of personal expression and taste they engage in the ongoing liberal construction of politics as located in the personal rather than the structural or economic.

Express yourself! Speech is what makes you free The reviewers, then, embraced the movie and, centrally, the character of Flynt in the movie. They over-interpret their freedom to speak/write under the law and choose to see the agency of corporate speech as proof of their own agency as individuals. I suggest that the idea of freedom of speech, equally shared by all, is a key support for a political fantasy of freedom. This fantasy works by casting expression (and especially sexual expression) as the realm of agency, allowing individuals to willfully ignore issues of economy and structure (as irrelevant to their expression, the fantastic true area of freedom) as the givens, or reality. By focusing on and over-investing in the idea of self-expression as the true realm or proof of freedom, we can construct a liberal ideal (fantasy) of freedom that offers pleasure in a sense of agency. The over-interpretation of the speech rights of individuals, via an ideological/fantastic view of the law and an equation of individual and corporate speech, allows individuals to invest in only one level of social life as the realm of freedom. Issues of economic constraints, even the actual extent of the law, are evaded by the popular attachment to the fantasy of free expression. The very terms in which this idealized freedom is articulated trace the contours of a liberal political imagination (the citizen as individual unfettered by the state in the expression of his or her pure individuality).10 It is not so much that the idea of free speech hides economic issues or makes it impossible to see inequalities in power and access and effectivity of speech, as that we would rather believe in the fantastic individualist articulation of freedom. It is this that makes the attitude toward free speech displayed in the public discourse on The People vs. Larry Flynt that of the fetishist. Freedom of expression is discussed as emblematic of the freedoms of the US as a liberal political system, and this emblematic freedom is articulated as a matter of taste and psychology. By casting this freedom in terms of taste and expression, the discourse suggests that liberal freedoms are located in what is typically considered the private or intimate realm, rather than the public realm of political economy or social justice. It follows that the evidence and exercise of this freedom is to be found in psychology and personal action. While

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these realms are not necessarily outside the political, by focusing solely on psychology and expression as the realms of freedom, it is easy to overlook material constraints on action (Kairys, 1982). One of the ways in which the movie is argued as proof of liberal freedoms is in the frequent reference to Milos Formans biography in the reviews and debate surrounding the movie. Over and over again, commentators cite the fact that Formans family perished in a Nazi concentration camp and that he grew up under Soviet communism as proof that he knows the true value of American liberties and has a proper appreciation of the nation. The movie is described as a celebration of the greater freedoms enjoyed by Americans than other peoples, and Formans own experience in authoritarian regimes is cited as proof of the veracity of this message. His life and endorsement of American liberalism are proofs not only of the superiority of US liberalism, but even of US liberalism as the only option (other than totalitarianism): again and again he is described as being all too familiar with the alternative to American liberalism. This discursive limitation of the political universe to such unequal options naturalizes US liberalism as effectively the only choice, but still a choice. The political system in place in the US is the one anyone could/should choose. Implicitly, Americans have chosen well. As the political legitimacy of liberalism rests on the idea of individual choice, all politics must be the result of individual choices and personal preferences, even when there are no effective options. In fantastically casting all politics in terms of individual psychology, preference and choice, structural imperative is experienced as individual desire iz (Z ek, 2001). In the process, individual agency is exaggerated. This discursive equation of freedom with taste and expression (I would argue to the exclusion of structure) is not limited to concerns with the directors biography. In discussing the movie itself, and its political message, the reviewers and commentators frequently argued that the idea that Flynt embodies the worst speech is central to the movies message: as Forman told a reporter, he wanted to make the point that the US rises to its best when provoked by the worst (Holmstrom, 1997: 15). Flynts speech is positioned as the worst, an example of the sort of extremity that must be tolerated in a free society (Maslin, 1996: 13). Yet, what type of provocation or extremity does Flynt represent in this discussion? At the same time as commentators term his speech the worst and a prime example of the sort of utterances that test the bounds of free society, they also describe his speech purely in terms of personal expression and taste. At one point in the movie, Flynt protests that all he is guilty of is bad taste. This line is picked up and reiterated by multiple reviewers. Jay Carrs comments expand on the theme: The real offense of Flynt and his Hustler magazine cohorts, the film makes clear, is that they arent content to slink guiltily into a back alley to conduct their business (1997: C-1). The adjectives used to describe Flynts speech (or Hustler) cast the issue in terms of personal preference and hurt feelings: that speech rights have the right to offend (Ebert,

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1996: 33) and that Flynt expanded speech rights to include expressions of regrettable taste (Carroll, 1996: E-1). According to this language, the issues at hand are aesthetic and cultural judgments, and the stakes hurt feelings and damaged sensibilities. The discussion of the movie suggests that the bounds that must be tested in a free society are those of decorum and taste (rather than those of the public good or justice). This is far from an exceptional way of articulating freedom of expression: speech rights are often articulated in terms of self-expression, to the point that, in popular discussion (and regulatory decisions) on speech rights, there is no room for considering intersubjectivity, reception or effects (Garnham, 1992; Winston, 1988). Expression is largely treated as a possession of the speaker in both popular political discourse and regulatory action (Winston, 1988).11 Here, the emphasis on self-expression as a hallmark of political freedom is likely amplified by the intersection of sex and speech in The People vs. Larry Flynt. The fact that Flynts speech was pornography meant that ideas about sexual expression as the ultimate seat of individuality and authenticity (Foucault, 1978) played into the debate. The linkage between sex and expressivity, in the discussion of freedom of expression around The People vs. Larry Flynt, doubles the sense of expression as purely and centrally psychological. And, as a result, enhances the linkage between psychological expression and proof of liberal freedoms. This is rather explicitly symbolized in an extended commentary on the movie in USA Today, which again turned to the directors biography to characterize the young Forman growing up in communist Czechoslovakia, dreaming:
of the free world of the West with its gorgeous naked women. The West, he was aware, had many freedoms that didnt exist under communism. But he had a strange feeling that the freest thing of all was the women. (Grenier, 1997: 11-A)

Not only are liberal freedoms associated with heterosexual expressions of sexuality,12 but apparently are writ in the physical attractions of women within liberal systems. The author goes on to discuss the various limitations on sexual expression under communism, and how Larry Flynt came to seem like a symbol of freedom to the young director. The discursive coincidence of sexual expression and freedom of expression underscores the individualism and emphasis on personal preference. This linkage of sexual expression and (US) liberal freedoms is ironic in the way it limits the discussion of what constitutes political freedom. The proof of liberal political freedoms is not celebrated in terms of the ability to criticize powerful economic or political interests but in terms of highly individualized and psychologized self-expression. For many reviewers, the fact that Flynts speech was sexual seemed to make it easier to overlook the economic dimensions (to the point that many interpreted the final court case as being about the right to sexual expression rather than libel). Further, the link between sexuality and expression made it easier to see Flynts speech in terms

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of individual taste (than economic or political speech). As one less impressed reviewer put it:
There are people much more offensive than Flynt. Make a movie about a neo-Nazi printing lies about the Holocaust make us root for that guy and youll have made a movie about the First Amendment. (LaSalle, 1997: D-14)

For this reviewer, as for many, the fact that Flynts speech dealt with sexuality meant that it was pure, harmless expression (and not potentially dangerous hate speech). Ironically, in legal terms, understanding Flynts speech in political terms (having to do with constructions of gender and power) would afford it greater Constitutional protection. However, the reviewers who most celebrate unfettered expression are those who most desire to see Flynts speech in terms of aesthetics and psychology (and not those of power or politics). This is, I would suggest, tied to the desire to see sexuality and especially sexual expression as sites of freedom.13 This desire is deeply invested in what Michel Foucault termed the repressive hypothesis (1978). The repressive hypothesis holds that sexuality is the reverse of power, that it is a pure realm of individuality, outside the confines of state-political power. It holds that subjectivity and desire are sites of individuality that are outside of power and politics, and which the state seeks to control repressively. Foucaults work suggests, to the contrary, that the modern concern with sex is not an escape from power, but a product of a more diffuse (non-state-centered) power. And, more to the point here, that the repressive hypothesis is a support for liberal systems. It offers a fantasy of confrontation and resistance, in which self-expression and speaking of sexuality are practices of freedom and liberation. The linkage of sexuality, speech and freedom is ultimately a support of the fantastic construction of speech rights, in the way it constructs political liberties in terms of highly individualized expression. It creates an equivalence between expression and action, and between personal or psychological expression and relations of power, social structure and economics. Making sex the locus of citizenship, or freedom, moves questions of social security, opportunity and liberation to the level of personal, intimate life, rather than the level of public debate and politics (Berlant, 1997). This is not to say that sexuality and sexual expression are not political concerns. They are in fact closely intertwined. It is to say that the fact that sexuality, politics and economics are discussed as if they were purely separate realms (with sexuality understood in terms of personal expression) rhetorically constructs liberal freedom in personalized terms. It focuses attention solely on symbolic practices, to the exclusion of material and economic ones, and to the exclusion of the links between symbolic and material practices. The reviewers desire to see the speech in terms of sexual expression and to frequently express their freedoms as Americans in terms of sexual expression is indicative of an ideological fantasy of liberal freedom. After all, the

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commentary by and large was not arguing for the inclusion of more speech under full First Amendment protection, but celebrating current freedoms. This discourse helps to support current systems, and their investments in domination, by promoting a self-congratulatory attitude. This self-congratulatory attitude/fantasy is, I argue, amplified in the discussion of The People vs. Larry Flynt due to the intersection of speech rights and individual expression; an intersection that is overdrawn through its implication in ideas about sexual expression (as the obverse of repression). The particularly individualizing rhetoric of sexuality employed argued for an understanding of the single most important thing that makes our nation great (Murray, 1996: 12-P) in terms of abstract, individual expression. As long as the discussion remains at this level, it avoids the most difficult terrain for thinking about speech rights in a liberal system: the conflicts between property rights and speech rights, the relations between speech and action, and the question whether/when some citizens speech impedes others political rights and speech.

Conclusion The fetishistic attachment to expressivity as the site of American liberal freedoms traced here is not idiosyncratic. The construction of freedom of expression in personal, psychological terms is not absent in other discussions of speech rights, though it may not always be as glaring. This attachment is important to explore in that it supports a fantasy of the US as more democratic and liberal than it is in actual practice and policy. By over-interpreting legal rights and focusing solely on individual expression at the expense of issues of property and power, the freedom and agency of individual citizens is inflated. The ability to speak freely is an important aspect of democratic society, but it is not the entirety of a healthy democracy. As David Kairys notes, While freedom of speech is essential to any free and democratic society, so is the ability to participate meaningfully in the formulation of social policies and priorities (1982: 164). Over-interpretation of the freedom to speak, in offering a symbolic freedom, serves to legitimate existing power relations and to distract from a lack of freedom or opportunity to participate in high-stakes decision-making, and indeed a dearth of venues for speech. Focusing solely on individual expression also helps to obscure the differences between speakers, and supports a fantasy of equal opportunity. By identifying so strongly with Flynt as an individual (rather than with Hustler as a corporation) without attention to the economics of speech, the reviewers avoid issues of inequality and antagonism. This is a pleasurable exaggeration of agency and voice. In their discussion of the movie and freedom of expression, the reviewers engage in a sort of trickle-down economics of expression, in which the freedoms of everyday citizens are not only measured in terms of self-expression (conflated with a consumerist right to choose among cultural

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products), but also dependent upon a laissez-faire regulatory approach to media.14 All of this is not to say that the ideal of freedom of speech is in itself harmful. The ideal is laudable in many ways, as are the actual protections from censorship and venues for discussion that the law provides. It is, however, to say that the current over-invested way of discoursing on it keeps us from doing the hard work of examining how effective those protections are at encouraging communication, and at furthering democratic goals. Freedom of speech is an important legitimating liberal ideal and symbol. Like any legitimating discourse, it is used to justify the political system for which it stands. And, as with any other legitimating discourse, there is reason for concern when it is in danger of being more symbolic than substantive, or when overinvestment in it precludes examination of contradictions, paradoxes and antagonisms within it. At stake is the ability (or current inability) to have a robust, pragmatic conversation about speech rights, political and economic antagonisms in the public sphere, and the limitations of liberalism as currently practiced. In order to address the hard questions raised by media concentration and privatization, hate speech, pornography, inequalities in access to speech venues, discussions on the relative public interest in security and speech rights, and (political and philosophical) challenges to liberal individualism,15 such hard conversations are required. Notes
1. Hustler magazine had, to many feminists, long been an example of some of the worst sort of pornography, for including graphically violent layouts (such as depictions of dismemberment and rape) and racist cartoons and commentary. 2. Throughout, I use freedom of expression and free speech to refer to the popular idea, or ideological construction, of the First Amendment and speech rights to refer to the actual rules and rights pertaining to speech in US law. 3. All of this describes interpersonal communication and communication in print media. Additional regulations may be placed on other forms of mediated communication. And even fully protected speech can be subject to regulations on the time, place and manner of that speech if there is a compelling reason to do so. In general, the government may place regulations on conduct that is also speech as long as the regulation does not hinge upon the content of the expression. 4. Relevant results included articles in which the movie was the central topic; discussions of nominees for the Golden Globes, Oscars and other film awards were not included, nor were letters to the editor. 5. The case solidified the inapplicability of libel restrictions to speech about public figures. The First Amendment does not cover obscene or libelous speech, or fighting words. In order to be libelous, and therefore not protected, speech must be maliciously untrue. The case featured in the film did not attempt to suppress the speech as libelous but to collect monetary damages. 6. This perhaps comments on an American fantasy of the state as a leviathan far greater than any private entity or corporation could ever hope to be.

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7. In fact, the movie portrays the genesis of Hustler as an accident contingent upon obscenity laws. All Flynt wanted to do, according to the movie, was publish ads for his club with naked women. He had to add the text to get around obscenity laws. 8. US libel law since New York Times v. Sullivan (1964) stipulates that, for a public figure to prove a media outlet has libeled him or her, the figure must prove both that the published material was false and that it was published with actual malice. The case Hustler Magazine v. Falwell (1988) hinged on whether the First Amendment protected media outlets from tort damages from public figures, or civil suits in cases where defamatory remarks could be proved to have caused the public figure emotional suffering or breach of privacy. 9. It is an obstacle, further, to popularizing progressive strains of liberal democratic thinking on what Stein (2004) has called an empowering approach to the First Amendment. 10. Though the extent to which this imagination is articulated in terms of masculinity in the discussion of the movie is striking. Not only are Flynts speech rights the only ones at issue for most reviewers, but their comments indicate an interesting double standard of sexual expression in their descriptions of Flynts character and that of his wife, Althea. 11. In this, self-expression takes precedence over discussion, speaking over listening or understanding. 12. Many of the limitations on sexual expression he cites as evidence of communist repression are commonplace in the many parts of the US for homosexual sexual expression most notably policing of public displays of affection. 13. An extended commentary on Forman and the making of the movie in USA Today focused much attention on expressions of sexuality behind the Iron Curtain. The lack of access to nudity (and attractive women) in the Eastern bloc that Forman experienced as a youth is contrasted to the abundance of strip clubs and other commercial venues for nudity in the US, as proof of the greater freedoms Americans enjoy (Grenier, 1997: 11-A). 14. The particular notion of liberal freedom and personal agency founded in this liberal fantasy is part of the backdrop that provides arguments for de-regulation their potency. Understanding how the discourses on freedom of expression, sexuality and liberalism support a liberal democratic fantasy may be helpful in understanding how the de-regulatory attitude in the US took hold and retains its persuasiveness as well as in understanding the central role indecency debates play in discussions of regulation for the left as well as the right. 15. For elaborations of these challenges facing definitions of speech rights, see Barron (1967), Sunstein (1993), Allen (1995), Jensen and Arriola (1995), Streeter (1995), Husband (1996), Downing (1999), Stein (2004).

References
Allen, David (1995) The Supreme Court and the Creation of an (In)active Public Sphere, pp. 93113 in Dave Allen and Robert Jensen (eds) Freeing the First Amendment. New York: New York University Press. Alter, Jonathan (1996) The Right to be Wrong, Newsweek 23 December: 64. Barron, Jerome (1967) Access to the Press A New First Amendment Right, Harvard Law Review 80(8): 164178. Berlant, Lauren (1997) The Queen of America Goes to Washington City: Essays on Sex and Citizenship. Durham, NC: Duke University Press. Carr, Jay (1997) Sleazefest Delights in Poking America Below the Belt, Boston Globe 10 January: C1.

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Carroll, Jerry (1996) Larry Flynt vs. the People: Porn King Still Fights for Respect, San Francisco Chronicle 17 December: E-1. Downing, John (1999) Hate speech and First Amendment Absolutism Discourses in the US, Discourse & Society 10(2): 17589. Ebert, Robert (1996) Low Road to High Court: Controversial Porn Publisher Takes on Freedom of Speech, Chicago Sun-Times 27 December: 33. Foucault, Michel (1978) The History of Sexuality, vol. 1, trans. Robert Hurley. New York: Vintage Books. Garnham, Nicholas (1992) The Media and the Public Sphere, pp. 35976 in Craig Calhoun (ed.) Habermas and the Public Sphere. Cambridge, MA: MIT Press. Grenier, Robert (1997) Forman, Flynt and Freedom in Prague, USA Today 15 January: 11-A. Guthmann, Edward (1996) Milos Forman for the Defense, San Francisco Chronicle 15 December: 41. Holmstrom, David (1997) Director Defends The People vs. Larry Flynt, Christian Science Monitor 12 February: 15. Husband, Charles (1996) The Right to be Understood: Concerning the Multi-ethnic Public Sphere, Innovation 9(2): 20511. Hustler Magazine v. Falwell, 485 US 46 (1988). Jensen, Robert and Elvia Arriola (1995) Feminism and Free Expression: Silence and Voice, pp. 195223 in Dave Allen and Robert Jensen (eds) Freeing the First Amendment. New York: New York University Press. Kairys, David (1982) Freedom of Speech, pp. 14071 in David Kairys (ed.) The Politics of Law: A Progressive Critique. New York: Pantheon Books. LaSalle, Mick (1997) Mr Flynt Goes to Washington: Peoples Twist on American Myth, San Francisco Chronicle 6 June: D-14. Marx, Karl (1976) Capital: A Critique of Political Economy, vol. 1, trans. Ben Fowkes. London: Penguin Books (in association with New Left Review). Maslin, Janet (1996) Larry Flynt, Taking and Defending Liberties, New York Times (section 1) 27 December: 13. Mauro, Tony (1996) Larry Flynt and Freedom Case was Landmark Defense of Free Speech, USA Today 27 December: 1-D. Millar, Jeff (1997) A Civics Lesson in Funny Flynt, Houston Chronicle 10 January: Weekend-1. Murray, Steve (1996) The People vs. Larry Flynt, The Atlanta Journal-Constitution 27 December: 12P. New York Times v. Sullivan, 376 US 254 (1964). Royko, Mike (1997) ACLU-NOW Debate Puts Flynt Movie in New Light, Denver Post 9 February: D-02. Schauer, Frederick (1995) The First Amendment as Ideology, pp. 1028 in Dave Allen and Robert Jensen (eds) Freeing the First Amendment. New York: New York University Press. Seiler, Andy (1996) Odd Story of Confronting Constitution to Protect It, USA Today 27 December: 1-D. Stein, Laura (2004) Understanding Speech Rights: Defensive and Empowering Approaches to the First Amendment, Media, Culture & Society 26(1): 10320. Streeter, Thomas (1995) Some Thoughts on Free Speech, Language, and the Rule of Law, pp. 3153 in Dave Allen and Robert Jensen (eds) Freeing the First Amendment. New York: New York University Press. Sunstein, Cass (1993) Democracy and the Problems of Free Speech. New York: The Free Press. Weinraub, Bernard (1997) Flynt Receives Thumbs Up by New Reviewer: ACLU, New York Times 20 February: C-3.

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Winston, Brian (1988) The Tradition of the Victim in Griersonian Documentary, pp. 26987 in Alan Rosenthal (ed.) New Challenges for Documentary. Berkeley: University of California Press. iz iz Z ek, Slavoj (1994) How Did Marx Invent the Symptom?, in Slavoj Z ek (ed.) Mapping Ideology. London: Verso. iz Z ek, Slavoj (1997) The Plague of Fantasies. London: Verso. iz iz Z ek, Slavoj (2001) The Leninist Freedom, in Slavoj Z ek, On Belief. URL (consulted February 2005): http://www.marxists.org/reference/subject/philosophy/wor ks/ot/zizek.htm

Jennifer Petersen is Assistant Professor of Communication Studies at Southwestern University. Her research interests include the functions of emotional discourse in the public sphere, popular representations of the law, and the use of therapeutic rhetoric in relation to the law. Address: 2705 Oak Crest Ave, Austin TX 78704, USA. [email: petersej@southwestern.edu]

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