On censorship

A few years ago, while writing a paper defending freedom of speech on the Internet, I came across these items. They are no less applicable today than they were then, and will probably be relevant as long as Pat "Purple" Robertson and his ilk continue to waste oxygen.

I don't usually care much for any cause that has its own ribbon. However, I make an exception for the Electronic Frontier Foundation's blue ribbon campaign.

"Printers in colonial America faced official licensing and taxation schemes... that made any criticism of authorities risky." (Sableman 2)

"The independent-minded founders of the nation saw that the British authorities’ suppression of dissenting beliefs and expressions had suppressed the strength of colonial society. Officially imposed orthodoxy promoted governmental arbitrariness and public dispirit and ultimately led to the American Revolution." (Sableman 2)

"The declaration of rights is, like all other human blessings, alloyed with some inconviences.... But the good in this instance vastly outweighs the evil."
Thomas Jefferson writing to James Madison, 1789

"I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it." Jefferson, 1791

"There is a larger injury to be considered, the damage done to every American when a book is pulled from a shelf, as in this case, or when an idea is not circulated." --The Eighth Circuit Court of Appeals, Price v. Viking Penguin, Inc.

"Justice William J. Brennan Jr. noted in the decision [in Texas v. Johnson] that protection of speech that most citizens would find offensive was not an aberration but a core purpose of the Bill of Rights. ‛If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,’ he wrote." (Sableman 5)

"If 200 years of the First Amendment have taught anything, it is that free speech is not quiet, serene, or comfortable, but tumultuous, disturbing, and inconvenient." (Sableman 5)

As for pornography, Justice Brennan also noted that sex is "a great and mysterious motive force in human life [and] has indisputably been a subject of absorbing interest to mankind through the ages."

Companies operating on the Internet are subject to laws as are other traditional, "store-front" businesses. Sableman cites four examples in which courts can establish jurisdiction over cases. In three of the four cases, the business’s or individual’s home state was given warrant to hear the case; in the fourth, the State of New York against an Italian publisher, New York was found to have legal grounds to prosecute the case. (Sableman 242)

"Essentially, the plaintiffs [the ACLU] presented at the trial, through knowledgeable, credible, and mainstream witnesses, the wealth and promise of materials available on the Internet, the futility and overbreadth of the Communications Decency Act censorship tool, the private-sector parental control and choice alternatives to government censorship, and the human face of Communications Decency Act censorship." (Sableman 244)

"This is censorship, plain and simple. It is no less so because the legislation is designed to protect children. As the Supreme Court Justice Felix Frankfurter put it in a 1957 opinion, we may not 'reduce the adult population' to material 'fit for children. Legislation in this area cannot be passed [as Senator Conrad Burns says] 'that would stay within the Constitution." (Abrams 622-23)

"The powerful technology of the Information Superhighway can help us find a job, research a medical condition, participate in government, connect a student or a scholar to information they need around the nation and around the world." (O’Reilly 168)

"Net enthusiasts and systems operators argue that the Exon bill and proposals like it are unconstitutional as well as unworkable: if a literary magazine put its contents online, for example, and included a short story with a four-letter word, the law could leave the editor liable for a $50,000 fine and six months in jail." (Diamond)

References

Abrams, Floyd. "Save Free Speech." Current Issues and Enduring Questions, Fifth Edition. Ed. Sylvan Barnet and Hugo Bedau. Boston: Bedford Books of St. Martin's Press, 1999. 622-23.

Diamond, Edwin and Stephen Bates. "Law and Order Comes to Cyberspace." Technology Review (Oct. 1995).

O’Reilly and Associates, Inc., ed. The Harvard Conference on the Internet and Society. Cambridge: Harvard University Press, 1997.

Sableman, Mark. More Speech, Not Less: Communication Law in the Information Age. Carbondale, Ill.: Southern Illinois University Press, 1997.

Here is a quite brief paper I wrote on the subject some years ago.

Let’s Hear It for Free Speech!

To err is human; the right to err is divine. Because exploration, by its very nature, involves travels into terra incognita, some wrong paths will inevitably be taken on any voyage to discovery. However, some today would, under the guise of "political correctness" or "sensitivity," forestall any discussion or discovery--and its concomitant detours--by sanitizing language and, by extension, thought. Although some confuse the terms "expression" and "action" and errantly proclaim themselves against the former rather than, as should be the case, the latter, it is clear that legislative attempts to censor media [auth.note: not "the media"] cannot succeed without grave danger to society writ large.

The failure of the Miller test demonstrates the futility of adequately (let alone precisely) defining what material is fit for the censor's guillotine. Susan Brownmiller notes this failure (36), but then proceeds to ignore it by constructing an arbitrary definition of pornography. Her nonchalant definition fails to address the issue properly, as the task of determining what can be said to have value to scientific, artistic, or literary fields can only be described as Sisyphean. While one individual may find no redeeming value in a particular opus, another may find it rich in artistry. To preempt, for example, Nabokov's Lolita at the whim of a few who will not ignore it would leave students of English, literature, psychology, and many other fields bereft of its wealth.

At the same time, one must concede that actions differ from words. The late Justice Hugo L. Black observed that while the Federal Government has no constitutional authority to suppress free speech, conduct does not receive this same blanket protection (Jacoby 36). The oft-cited example of shouting "Fire!" in a crowded theater is justly exempted from protection, as is "kiddie porn." Susan Jacoby points out that

...kiddie porn is not a First Amendment issue. It is an issue of the abuse of power--the power parents have over children--and not an issue of obscenity. Parents and promoters have no more right to use their children to make porn movies than they do to send them to work in coal mines. The responsible adults should be prosecuted.... (30)

The protection of these or similar actions would not provide a benefit to society. Indeed, the perpetuation or, at least, sanction of such actions would result in a negative net gain for society.

Attempts to reclassify words as actions ignore the above point or distort it. In the theater example, there is a deliberate misrepresentation of fact that can be expected to cause panic--one cannot afford to ignore the threat of a fire. In the same vein, standing in front of a rally and screaming, "Kill the wakalixes!" can be expected to incite violence. However, stating that "I think all wakalixes are stupid" does not contain the same immediate threat, and, although blatantly racist, cannot be legislatively suppressed. Sufficient laws are already in force to protect individuals from the intentional misrepresentation of fact that is slander or libel. Charles R. Lawrence III has observed this, and cites a Supreme Court decision that "words which 'by their very utterance inflict injury or tend to incite an immediate breach of the peace' [and are therefore actions] are not protected by the First Amendment." Opinions, on the other hand, are not actions but instead ideas, and therefore are unrestricted and must remain so.

The appeal, however tempting, to call for government intervention into the realm of ideas must be resisted. The government denied itself this ability at its birth with the First Amendment, and must not reclaim it. No additional laws, no matter how carefully drafted, can avoid serious repercussions on the American culture, one that has based itself and its success on its freedoms. To do otherwise would scuttle a seaworthy ship.

Works Cited

Brownmiller, Susan. "Let's Put Pornography Back in the Closet." Current Issues and Enduring Questions, Fifth Edition. Ed. Sylvan Barnet and Hugo Bedau. Boston: Bedford Books of St. Martin's Press, 1999. 35-38.

Jacoby, Susan. "A First Amendment Junkie." Current Issues and Enduring Questions, Fifth Edition. Ed. Sylvan Barnet and Hugo Bedau. Boston: Bedford Books of St. Martin's Press, 1999. 29-31.

Lawrence, Charles R. III. "On Racist Speech." Current Issues and Enduring Questions, Fifth Edition. Ed. Sylvan Barnet and Hugo Bedau. Boston: Bedford Books of St. Martin's Press, 1999. 39-42.

A few more pages about censorship

GeorgeSuttle.com/censorship - A rich resource on the many aspects and implications of censorship.
www.netfunny.com/rhf/rhfban.html - The story of rec.humor.funny's troubles after sending out a funny joke at an unfortunate time.