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