Speaking Freely: Marjorie Heins

This interview has been edited for length and clarity.*

Marjorie Heins is a writer, former civil rights/civil liberties attorney, and past director of the Free Expression Policy Project (FEPP) and the American Civil Liberties Union’s Arts Censorship Project. She is the author of “Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge,” which won the Hugh M. Hefner First Amendment Award in Book Publishing in 2013, and “Not in Front of the Children: Indecency, Censorship, and the Innocence of Youth,” which won the American Library Association’s Eli Oboler Award for Best Published Work in the Field of Intellectual Freedom in 2002. 

Her most recent book is “Ironies and Complications of Free Speech: News and Commentary From the Free Expression Policy Project.” She has written three other books and scores of popular and scholarly articles on free speech, censorship, constitutional law, copyright, and the arts. She has taught at New York University, the University of California – San Diego, Boston College Law School, and the American University of Paris. Since 2015, she has been a volunteer tour guide at the Metropolitan Museum of Art in New York City.

Greene: Can you introduce yourself and the work you’ve done on free speech and how you got there?

Heins: I’m Marjorie Heins, I’m a retired lawyer. I spent most of my career at the ACLU. I started in Boston, where we had a very small office, and we sort of did everything—some sex discrimination cases, a lot of police misconduct cases, occasionally First Amendment. Then, after doing some teaching and a stint at the Massachusetts Attorney General’s office, I found myself in the national office of the ACLU in New York, starting a project on art censorship. This was in response to the political brouhaha over the National Endowment for the Arts starting around 1989/ 1990.

Culture wars, attacks on some of the grants made by the NEA, became a big hot button issue. The ACLU was able to raise a little foundation money to hire a lawyer to work on some of these cases. And one case that was already filed when I got there was National Endowment for the Arts vs Finley. It was basically a challenge by four theater performance artists whose grants had been recommended by the peer panel but then ultimately vetoed by the director after a lot of political pressure because their work was very much “on the edge.” So I joined the legal team in that case, the Finley case, and it had a long and complicated history. Then, by the mid-1990s we were faced with the internet. And there were all these scares over pornography on the internet poisoning the minds of our children. So the ACLU got very involved in challenging censorship legislation that had been passed by Congress, and I worked on those cases.

I left the ACLU in 1998 to write a book about what I had learned about censorship. I was curious to find out more about the history primarily of obscenity legislation—the censorship of sexual communications. So it’s a scholarly book called “Not in front of the Children.” Among the things I discovered is that the origins of censorship of sexual content, sexual communications, come out of this notion that we need to protect children and other “vulnerable beings.” And initially that included women and uneducated people, but eventually it really boiled down to children—we need censorship basically of everybody in order to protect children. So that’s what Not in front of the Children was all about. 

And then I took my foundation contacts—because at the ACLU if you have a project you have to raise money—and started a little project, a little think tank which became affiliated with the National Coalition Against Censorship called the Free Expression Policy Project. And at that point we weren’t really doing litigation anymore, we were doing a lot of friend of the court briefs, a lot of policy reports and advocacy articles about some of the values and competing interests in the whole area of free expression. And one premise of this project, from the start, was that we are not absolutists. So we didn’t accept the notion that because the First Amendment says “Congress shall make no law abridging the freedom of speech,” then there’s some kind of absolute protection for something called free speech and there can’t be any exceptions. And, of course, there are many exceptions. 

So the basic premise of the Free Expression Policy Project was that some exceptions to the First Amendment, like obscenity laws, are not really justified because they are driven by different ideas about morality and a notion of moral or emotional harm rather than some tangible harm that you can identify like, for example, in the area of libel and slander or invasion of privacy or harassment. Yes, there are exceptions. The default, the presumption, is free speech, but there could be many reasons why free speech is curtailed in certain circumstances. 

The Free Expression Policy Project continued for about seven years. It moved to the Brennan Center for Justice at NYU Law School for a while, and, finally, I ran out of ideas and funding. I kept up the website for a little while longer, then ultimately ended the website. Then I thought, “okay, there’s a lot of good information on this website and it’s all going to disappear, so I’m going to put it into a book.” Oh, I left out the other book I worked on in the early 2000s – about academic freedom, the history of academic freedom, called “Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge.” This book goes back in history even before the 1940s and 1950s Red Scare and the effect that it had on teachers and universities. And then this last book is called “Ironies and Complications of Free Speech: News and Commentary From the Free Expression Policy Project,” which is basically an anthology of the best writings from the Free Expression Policy Project. 

And that’s me. That’s what I did.

Greene: So we have a ton to talk about because a lot of the things you’ve written about are either back in the news and regulatory cycle or never left it. So I want to start with your book “Not in Front of the Children” first. I have at least one copy and I’ve been referring to it a lot and suggesting it because we’ve just seen a ton of efforts to try and pass new child protection laws to protect kids from online harms. And so I’m curious, first there was a raft of efforts around Tik Tok being bad for kids, now we’re seeing a lot of efforts aimed at shielding kids from harmful material online. Do you think this a throughline from concerns back from mid-19th Century England. Is it still the same debate or is there something different about these online harms? 

Both are true I think. It’s the same and it’s different. What’s the same is that using the children as an argument for basically trying to suppress information, ideas, or expression that somebody disapproves of goes back to the beginning of censorship laws around sexuality. And the subject matters have changed, the targets have changed. I’m not too aware of new proposals for internet censorship of kids, but I’m certainly aware of what states—of course, Florida being the most prominent example—have done in terms of school books, school library books, public library books, and education from not only k-12 but also higher education in terms of limiting the subject matters that can be discussed. And the primary target seems to be anything to do with gay or lesbian sexuality and anything having to do with a frank acknowledgement of American slavery or Jim Crow racism. Because the argument in Florida, and this is explicit in the law, is because it would make white kids feel bad, so let’s not talk about it. So in that sense the two targets that I see now—we’ve got to protect the kids against information about gay and lesbian people and information about the true racial history of this country—are a little different from the 19th century and even much of the 20th century. 

Greene: One of the things I see is that the harms motivating the book bans and school restrictions are the same harms that are motivating at least some of the legislators who are trying to pass these laws. And notably a lot of the laws only address online harmful material without being specific about subject matter. We’re still seeing some that are specifically about sexual material, but a lot of them, including the Kids Online Safety Act really just focus on online harms more broadly. 

I haven’t followed that one, but it sounds like it might have a vagueness problem!

Greene: One of the things I get concerned about with the focus on design is that, like, a state Attorney General is not going to be upset if the design has kids reading a lot of bible verses or tomes about being respectful to your parents. But they will get upset and prosecute people if the design feature is recommending to kids gender-affirming care or whatever. I just don’t know if there’s a way of protecting against that in a law. 

Well, as we all know, when we’re dealing with commercial speech there’s a lot more leeway in terms of regulation, and especially if ads are directed at kids. So I don’t have a problem with government legislation in the area of restricting the kinds of advertising that can be directed at kids. But if you get out of the area of commercial speech and to something that’s kind of medical, could you have constitutional legislation that prohibited websites from directing kids to medically dangerous procedures? You’re sort of getting close to the borderline. If it’s just information then I think the legislation is probably going to be unconstitutional even if it’s related to kids. 

Greene: Let’s shift to academic freedom. Which is another fraught issue. What do you think of the current debates now over both restrictions on faculty and universities restricting student speech? 

Academic freedom is under the gun from both sides of the political spectrum. For example, Diversity, Equity, and Inclusion (DEI) initiatives, although they seem well-intentioned, have led to some pretty troubling outcomes. So that when those college presidents were being interrogated by the members of Congress (in December 2023), they were in a difficult position, among other reasons, because at least at Harvard and Penn it was pretty clear there were instances of really appalling applications of this idea of Diversity, Equity, and Inclusion – both to require a certain kind of ideological approach and to censor or punish people who didn’t go along with the party line, so to speak. 

The other example I’m thinking of, and I don’t know if Harvard and Penn do this – I know that the University of California system does it or at least it used to – everybody who applies for a faculty position has to sign a diversity statement, like a loyalty oath, saying that these are the principles they agree with and they will promise to promote. 

And you know you have examples, I mean I may sound very retrograde on this one, but I will not use the pronoun “they” for a singular person. And I know that would mean I couldn’t get a faculty job! And I’m not sure if my volunteer gig at the Met museum is going to be in trouble because they, very much like universities, have given us instructions, pages and pages of instructions, on proper terminology – what terminology is favored or disfavored or should never be used, and “they” is in there. You can have circumlocutions so you can identify a single individual without using he or she if that individual – I mean you can’t even know what the individual’s preference is. So that’s another example of academic freedom threats from I guess you could call the left or the DEI establishment. 

The right in American politics has a lot of material, a lot of ammunition to use when they criticize universities for being too politically correct and too “woke.” On the other hand, you have the anti-woke law in Florida which is really, as I said before, directed against education about the horrible racial history of this country. And some of those laws are just – whatever you may think about the ability of state government and state education departments to dictate curriculum and to dictate what viewpoints are going to be promoted in the curriculum – the Florida anti-woke law and don’t say gay law really go beyond I think any kind of discretion that the courts have said state and local governments have to determine curriculum. 

Greene: Are you surprised at all that we’re seeing that book bans are as big of a thing now as they were twenty years ago? 

Well, nothing surprises me. But yes, I would not have predicted that there were going to be the current incarnations of what you can remember from the old days, groups like the American Family Association, the Christian Coalition, the Eagle Forum, the groups that were “culture warriors” who were making a lot of headlines with their arguments forty years ago against even just having art that was done by gay people. We’ve come a long way from that, but now we have Moms for Liberty and present-day incarnations of the same groups. The homophobia agenda is a little more nuanced, it’s a little different from what we were seeing in the days of Jesse Helms in Congress. But the attacks on drag performances, this whole argument that children are going to be groomed to become drag queens or become gay—that’s a little bit of a different twist, but it’s basically the same kind of homophobia. So it’s not surprising that it’s being churned up again if this is something that politicians think they can get behind in order to get elected. Or, let me put it another way, if the Moms for Liberty type groups make enough noise and seem to have enough political potency, then politicians are going to cater to them. 

And so the answer has to be groups on the other side that are making the free expression argument or the intellectual freedom argument or the argument that teachers and professors and librarians are the ones who should decide what books are appropriate. Those groups have to be as vocal and as powerful in order to persuade politicians that they don’t have to start passing censorship legislation in order to get votes.

Greene: Going back to the college presidents and being grilled on the hill, you wrote that maybe there was, in response to the genocide question, which I think they were most sharply criticized there, that there was a better answer that they could have given. Could you talk about that? 

I think in that context, both for political reasons and for reasons of policy and free speech doctrine, the answer had to be that if students on campus are calling for genocide of Jews or any other ethnic or religious group that should not be permitted on campus and that amounts to racial harassment. Of course, I suppose you could imagine scenarios where two antisemitic kids in the privacy of their dorm room said this and nobody else heard it—okay, maybe it doesn’t amount to racial harassment. But private colleges are not bound by the First Amendment. They all have codes of civility. Public colleges are bound by the First Amendment, but not the same standards as the public square. So I took the position that in that circumstance the presidents had to answer, “Yes, that would violate our policies and subject a student to discipline.” But that’s not the same as calling for the intifada or calling for even the elimination of the state of Israel as having been a mistake 75 years ago. So I got a little pushback on that little blog post that I wrote. And somebody said, “I’m surprised a former ACLU lawyer is saying that calling for genocide could be punished on a college campus.” But you know, the ACLU has many different political opinions within both the staff and Board. There were often debates on different kinds of free speech issues and where certain lines are drawn. And certainly on issues of harassment and when hate speech becomes harassment—under what circumstances it becomes harassment. So, yes, I think that’s what they should have said. A lot of legal scholars, including David Cole of the ACLU, said they gave exactly the right answer, the legalistic answer, that it depends on the context. In that political situation that was not the right answer. 

Greene: It was awkward. They did answer as if they were having an academic discussion and not as if they were talking to members of Congress. 

Well they also answered as if they were programmed. I mean Claudine Gay repeated the exact same words that probably somebody had told her to say at least twice if not more. And that did not look very good. It didn’t look like she was even thinking for herself. 

Greene: I do think they were anticipating the followup question of, “Well isn’t saying ‘From the River to the Sea’ a call for genocide and how come you haven’t punished students for that?” But as you said, that would then lead into a discussion of how we determine what is or is not a call for genocide. 

Well they didn’t need a followup question because to Elise Stefanik, “Intifada” or “from the river to the sea” was equivalent to a call for genocide, period, end of discussion. Let me say one more thing about these college hearings. What these presidents needed to say is that it’s very scary when politicians start interrogating college faculty or college presidents about curriculum, governance, and certainly faculty hires. One of the things that was going on there was they didn’t think there were enough conservatives on college faculties, and that was their definition of diversity. You have to push back on that, and say it is a real threat to academic freedom and all of the values that we talk about that are important at a university education when politicians start getting their hands on this and using funding as a threat and so forth. They needed to say that. 

 Greene: Let’s pull back and talk about free speech principles more broadly. Why is, after many years of work in this area, why do you think free expression is important? 

What is the value of free expression more globally? [laughs] A lot of people have opined on that. 

Greene: Why is it important to you personally? 

Well I define it pretty broadly. So it doesn’t just include political debate and discussion and having all points of view represented in the public square, which used to be the narrower definition of what the First Amendment meant, certainly according to the Supreme Court. But the Court evolved. And so it’s now recognized, as it should be, that free expression includes art. The movies—it doesn’t even have to be verbal—it can be dance, it can be abstract painting. All of the arts, which feed the soul, are part of free expression. And that’s very important to me because I think it enriches us. It enriches our intellects, it enriches our spiritual lives, our emotional lives. And I think it goes without saying that political expression is crucial to having a democracy, however flawed it may be. 

Greene: You mentioned earlier that you don’t consider yourself to be a free speech absolutist. Do you consider yourself to be a maximalist or an enthusiast? What do you see as being sort of legitimate restrictions on any individual’s freedom of expression?

Well, we mentioned this at the beginning. There are a lot of exceptions to the First Amendment that are legitimate and certainly, when I started at the ACLU I thought that defamation laws and libel and slander laws violate the first amendment. Well, I’ve changed my opinion. Because there’s real harm that gets caused by libel and slander. As we know, the Supreme Court has put some First Amendment restrictions around those torts, but they’re important to have. Threats are a well-recognized exception to the freedom of speech, and the kind of harm caused by threats, even if they’re not followed through on, is pretty obvious. Incitement becomes a little trickier because where do you draw the lines? But at some point an incitement to violent action I think can be restricted for obvious reasons of public safety. And then we have restrictions on false advertising but, of course, if we’re not in the commercial context, the Supreme Court has told us that lies are protected by the First Amendment. That’s probably wise just in terms of not trying to get the government and the judicial process involved in deciding what is a lie and what isn’t. But of course that’s done all the time in the context of defamation and commercial speech. Hate speech is something, as we know, that’s prohibited in many parts of Europe but not here. At least not in the public square as opposed to employment contexts or educational contexts. Some people would say, “Well, that’s dictated by the First Amendment and they don’t have the First Amendment over there in Europe, so we’re better.” But having worked in this area for a long time and having read many Supreme Court decisions, it seems to me the First Amendment has been subjected to the same kind of balancing test that they use in Europe when they interpret their European Convention on Human Rights or their individual constitutions. They just have different policy choices. And the policy choice to prohibit hate speech given the history of Europe is understandable. Whether it is effective in terms of reducing racism, Islamophobia, antisemitism… is there more of that in Europe than there is here? Hard to know. It’s probably not that effective. You make martyrs out of people who are prosecuted for hate speech. But on the other hand, some of it is very troubling. In the United States Holocaust denial is protected. 

Greene: Can you talk a little bit about your experience being a woman advocating for first amendment rights for sexual expression during a time when there was at least some form of feminist movement saying that some types of sexualization of women was harmful to women? 

That drove a wedge right through the feminist movement for quite a number of years. There’s still some of that around, but I think less. The battle against pornography has been pretty much a losing battle. 

Greene: Are there lessons from that time? You were clearly on one side of it, are there lessons to be learned from that when we talk about sort of speech harms? 

One of the policy reports we did at the Free Expression Policy Project was on media literacy as an alternative to censorship. Media literacy can be expanded to encompass a lot of different kinds of education. So if you had decent sex education in this country and kids were able to think about the kinds of messages that you see in commercial pornography and amateur pornography, in R-rated movies, in advertising—I mean the kind of sexist messages and demeaning messages that you see throughout the culture—education is the best way of trying to combat some of that stuff. 

Greene: Okay, our final question that we ask everyone. Who is your free speech hero? 

When I started working on “Priests of our Democracy” the most important case, sort of the culmination of the litigation that took place challenging loyalty programs and loyalty oaths, was a case called Keyishian v. Board of Regents. This is a case in which Justice Brennan, writing for a very slim majority of five Justices, said academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” Harry Keyishian was one of the five plaintiffs in this case. He was one of five faculty members at the University of Buffalo who refused to sign what was called the Feinberg Certificate, which was essentially a loyalty oath. The certificate required all faculty to say “I’ve never been a member of the Communist Party and if I was, I told the President and the Dean all about it.” He was not a member of the Communist Party, but as Harry said much later in an interview – because he had gone to college in the 1950s and he saw some of the best professors being summarily fired for refusing to cooperate with some of these Congressional investigating committees – fast forward to the Feinberg Certificate loyalty oath: he said his refusal to sign was his “revenge on the 1950s.” And so he becomes the plaintiff in this case that challenges the whole Feinberg Law, this whole elaborate New York State law that basically required loyalty investigations of every teacher in the public system. So Harry became my hero. I start my book with Harry. The first line in my book is, “Harry Keyishian was a junior at Queen’s College in the Fall of 1952 when the Senate Internal Security Subcommittee came to town.” And he’s still around. I think he just had his 90th birthday!