From Moral Issues that Divide Us
Special Cases of Censorship
What People Think
Three Arguments for Free Speech: Democratic Government, Search for Truth, Autonomy
Plato First Argument for Censorship: Protecting Children
Plato Second Argument for Censorship: Protecting Society
Feinberg’s Argument for Censorship: Offense to Others
Public Policy Issues
Legally Protected Free Speech
Legal Limitations of Free Speech
Arguments Pro and Contra
The Conservative Position
The Liberal Position
A Middle Ground
Reading 1: Against Student Speech Codes (by Greg Lukianoff)
Some years ago, a group called the Young British Artists put together a compilation of their works for a traveling exhibit called “Sensation”. The collection of conceptual art quickly drew large crowds at the European museums where they were displayed. Some pieces were odd, such as one titled The Physical Impossibility of Death in the Mind of Someone Living, that had a 14 foot shark suspended in a glass case of formaldehyde. Another piece, titled Everyone I Have Ever Slept With 1963–1995, consisted of a small tent with the names of 102 people pasted on the inside. Other pieces were not just strange but outright shocking, and a sign posted outside London’s Royal Academy of Arts gave fair warning to visitors that “There will be works of art on display in the Sensation exhibition which some people may find distasteful.”
When the exhibition was put on display at the Brooklyn Museum of Art in New York City, public controversy erupted, especially over a painting by black British artist Chris Ofili titled The Holy Virgin Mary. The work was an abstract depiction of Mary as a black African, which, in and of itself was an attractive painting that could have been appropriate for display in some churches. It was the added artistic touches, though, that ignited outrage. Ofili placed two pieces of elephant dung on the painting, along with butterfly-looking cherubs floating around Mary that were actually photographs of naked black female buttocks and genitalia clipped from pornographic magazines. The point of the painting was to challenge black stereotypes, both within the sacred realm of religion where Mary is always portrayed as white, and in the secular world where the black female image has been ill-used in pornography and blaxploitation films.
Outcry against Ofili’s painting and the entire exhibit was swift. Catholic leaders denounced it, and New York’s mayor Rudolph Giuliani stopped public funding to the Brooklyn Museum, commenting that "You don't have a right to government subsidy for desecrating someone else's religion." He also proclaimed “There’s nothing in the First Amendment that supports horrible and disgusting projects!” The U.S. House of Representatives passed a resolution that “the Brooklyn Museum of Art should not receive Federal funds unless it closes its exhibit featuring works of a sacrilegious nature.” In spite of public opposition, the Brooklyn Museum continued displaying the exhibit for three months, protecting Ofili’s painting from vandalism with armed guards and a sheet of Plexiglas. In a subsequent law suit brought by the Museum, public funding was restored.
The controversy surrounding Ofili’s painting illustrates an ongoing tension between free speech and censorship, that is, a tension between the interest of people to openly express their views and the interest of others to suppress ideas that they find harmful or deeply offensive. Free speech is particularly valuable when it applies to the expression of unpopular ideas. British writer Oscar Wilde stated that “An idea that is not dangerous is unworthy of being called an idea at all.” Yet it also seems that there should be limits to how far free speech extends, and societies are entitled to protect their value systems from attack. In this chapter we will look at the conflict between free speech and censorship.
Free speech is a value that is universally held throughout the developed world today, and democratic societies see it as the hallmark of a free and open political system. With support as strong as it is for free speech, the burden of proof seems to rest on advocates of censorship to show why a particular idea should be suppressed. We will begin with a survey of the basic concepts used in this debate, and the main situations in which censorship has been imposed.
The issue of censorship rests on several interrelated concepts, foremost of which is free speech, a term that is used interchangeably with free expression. Central to the concept of free speech is that people have a legitimate expectation to articulate their ideas freely, without limitation or interference. While the form of expression can literally be verbally speaking what is on one’s mind, the terms “speech” and “expression” apply broadly to most any form of communication, including writing, bodily gestures, artistic creations, and photographic images. We usually think of free expression as pertaining to what we do during our non-working hours particularly in a public environment. Within private businesses or clubs and religious institutions, members agree to behavioral codes as a condition of participation. The organizations are within their rights to restrict expression, and members can pack up and leave if they don’t like it. During our own free time, though, we have a greater expectation of free speech in public arenas.
Censorship is the suppression of free speech, often on the grounds that an act of expression harms or offends the public. Expressions are sometimes restricted because they are judged to be obscene, blasphemous, unpatriotic, seditious, or immoral. The term “censorship” usually applies to governmental restrictions in free speech in public places, such as a law that restricts displaying a Nazi flag, or a government official who shuts down a public art display. However, efforts to restrict free speech can also come from private groups, and these are best termed non-governmental challenges, rather than “censorship” in its governmental sense. For example, a publisher might cancel a book contract because the project has generated too much controversy. Opponents of a theatrical production might conduct media campaigns and boycotts against the financial backers of the production. These types of non-governmental challenges are legally permissible, but others break the law, such as if one political group steals campaign signs or vandalizes billboard advertisements by its rival political group. From the standpoint of free speech advocates, both governmental censorship and non-governmental challenges are unjustly intrusive and should not be practiced in a free society.
The line between governmental censorship and non-governmental challenges is sometimes blurry, particularly when a private organization acts with implied governmental authority. This is the case with self-regulated censorship: a private organization sets rules that regulate free expression within an industry, in exchange for which the government agrees to not get involved. With any kind of self-regulation there is always a governmental threat lurking in the background. If industries cannot successfully regulate themselves, then the government will step in and address the problem with laws, monitoring, and penalties. In the words of one Senator during a hearing, “unless the industry ‘cleans up their act’ . . . there is likely to be legislation” (Commerce Committee, Record Labeling, 1985). The best-known example of this is the movie rating system that is uniformly adopted in the film industry, as we will see in more detail below.
One consequence of censorship and other challenges to free speech is that it creates an environment that intimidates people into constraining themselves, sometimes more than is even necessary. This is self-censorship: people consciously restricting their own expression out of fear of possible punishment. If I see that someone else has been taken to court or publicly ostracized because of a freely expressed view, I will be more inclined to play it safe and keep my mouth closed. The term chilling effect is used to describe the repressed atmosphere that censorship creates: it discourages the exercise of free expression in a way that makes us shiver with numbness.
Special Cases of Censorship
Today free speech is a liberty right that we take for granted until a special issue of censorship arises, which then gains widespread media coverage and sparks public debate. There are a few areas where censorship is a recurring issue, and we will highlight some of these. Perhaps the most prominent one is book censorship. More than any other type of media, books have become symbols of free expression. This is partly because books have the capacity of recording our thoughts on every possible subject, from the most innocent idea to the most scandalous. Book publication holds open the possibility of reaching a wider audience than we could in most other ways, such as through public speaking engagements or local television appearances. Historically controversial books have been rounded up by governments and enraged citizens, and even ceremonially burned in town squares. Here are just a sample of famous quotations denouncing book burning and what it represents:
· “Every burned book enlightens the world.”—Ralph Waldo Emerson
· “What progress we are making. In the Middle Ages they would have burned me. Now they are content with burning my books.”—Sigmund Freud
· "We all know that books burn, yet we have the greater knowledge that books cannot be killed by fire. People die, but books never die.”—Franklin D. Roosevelt
· “Wherever they burn books they will also, in the end, burn human beings.” —Heinrich Hein
· “The paper burns, but the words fly away.”—Akiba ben Joseph
· Books won't stay banned. They won't burn. Ideas won't go to jail. In the long run of history, the censor and the inquisitor have always lost. The only weapon against bad ideas is better ideas.—Alfred Whitney Griswold
While the days of government-conducted book burning are long gone in the developed world, it is still an activity performed by private political and religious groups in protest of publications that they believe are harmful. Harry Potter and The Lord of the Ring books have been victims of this by churches in South Carolina and New Mexico.
One area where book censorship continually draws attention today is with libraries in public schools. Under pressure from parents and community groups, many school boards have mandated the removal of certain books from their libraries, and among these in recent decades are classics such as William Golding's The Lord of the Flies, Aldous Huxley's Brave New World, Harper Lee's To Kill a Mockingbird, George Orwell’s 1984, John Steinbeck's The Grapes of Wrath, Kurt Vonnegut's Slaughterhouse Five, and Alice Walker's The Color Purple. Part of the motivation for school library censorship is to keep material from students that is not appropriate for their maturity level. Sometimes, though, the motivation is to prevent children from being exposed to material that challenges the value system of some parents or local community groups. Critics of library censorship argue that school libraries create opportunities for students to explore new ideas and, considering how diverse student bodies are, libraries need to include a wide range of books. It should be left to a student’s parents or teachers to direct them towards some books or away from others, but the options should still be there for patrons to make that choice.
A second special area of censorship focuses on hate speech, which is a type of public expression that attacks, insults and intimidates people based on some distinguishing feature, such as their race, gender, religion, sexual orientation, or physical appearance. Common examples are asserting the inferiority of a race, displaying a Nazi flag, shouting an anti-gay slogan, or desecrating a religious symbol. Expressions like these risk promoting discrimination towards the affected groups, and sometimes even result in violence towards them. Because of the harm that hate speech can inflict on the targeted groups, the question arises whether it should be restricted, and, in fact, most developed countries have enacted laws to that effect, including Britain, Canada, Australia, France, Germany, the Netherlands, Switzerland, and India. The United States almost uniquely stands alone in allowing such expressions as a matter of free speech.
A third area of censorship concerns limitations on creative expression in film and music. For almost 40 years the U.S. film industry was governed by the Motion Picture Production Code, which banned nudity, drug use, religious ridicule, disrespect for the law, and other depictions in films that would have the effect of lowering society’s moral standards. Romantic scenes were heavily scrutinized to uphold “the sanctity of the institution of marriage” and “excessive and lustful kissing, lustful embraces, suggestive postures and gestures, are not to be shown.” The Production Code was an effort at self-regulation by the motion picture industry, and technically speaking was not the instrument of any governmental agency. However, virtually all film distribution companies complied with the code and, consequently, filmmakers who wanted their movies released were compelled to follow it. In 1966 the standards of the production code were relaxed, and two years later it was replaced with the Motion Picture Association of America (MPAA) film rating system, which, in modified form, we follow today. The rating system is also self-regulated without direct government involvement. Participation in the rating scheme is voluntary, and, in theory, filmmakers can opt out by not submitting their films for rating and accept an NR (not rated) designation. But by taking NR rating, a film will have less theatrical distribution and will attract fewer viewers to movie houses. Thus, for mainstream films, participation in the rating system is a practical necessity.
In 1985, the wives of several U.S. Senators formed an organization called the Parent’s Music Resource Center (PMRC) and lobbied Congress to help impose a rating system on music lyrics that paralleled that in the film industry. The group recommended the ratings of D/A for drugs and alcohol, V for violence, O for occult, and X for explicit lyrics. Under pressure from the PMRC and Congress, the Recording Industry Association of America (RIAA) eventually instituted a system of placing parental advisory labels on albums that contain explicit lyrics. According to the RIAA, “In most decisions, the decision that a particular sound recording should receive a PAL Notice [i.e., Parental Advisory Label Notice] is made by each record company in conjunction with the artist.” As with movie ratings, parental advisory labels impact sales. For example, Walmart, the leading album outlet in the U.S., will not carry albums that have the Parental Advisory Labels.
A fourth area where free expression has routinely been restricted is with the visual arts, which includes drawing, painting, sculpture. By its very nature, visual art is a creative outlet of individual expression through which artists often offer critiques of contemporary society. Censorship of art occurs when a work is attacked or suppressed because of its controversial message, independently of its artistic merits. There is nothing wrong with people criticizing, disliking or taking offense at a work of art, and, with controversial pieces, that is expected. The problem occurs when a government or group of people go a step further and challenge the artist’s right to exhibit his work and try to prevent it from being displayed. The most dramatic example of this in recent years involved the Sensation exhibition at the Brooklyn Museum of Art, as discussed above.
A fifth recurring issue of censorship is flag desecration. No other object or image symbolizes a country more than its flag. While a country’s governments may come and go – good ones and bad ones – the flag usually stays the same, indicating that it represents a bond within a country’s culture and values that rises above the policies of a given government. While flag burners are often protesting against a particular governmental policy, such as an unpopular war or a violation of civil rights, the act of flag burning represents a broader contempt for the country itself. For that reason it is especially attention-getting and shocking. There are many non-traditional uses of national flags, such as using their designs for underwear, bed sheets, jewelry, but none of these uses display the overt contempt that flag burning does. Part of it is the violent nature of fire itself, and how it has been used over the centuries to intentionally torture and kill people, and destroy cities. Even countries with lenient policies about expressions of political protest may sometimes draw the line at flag burning.
A sixth area of censorship involves speech codes, particularly in school settings. Educational institutions have historically seen the free exchange of ideas as an integral part of the learning process, whereby students can vigorously debate even the most sensitive topics. Many school administrations, both at the K-12 and university levels, have enacted speech codes that restrict certain kinds of expression, particularly hate speech. An example would be a policy that explicitly prohibits insulting, teasing, or making inappropriate jokes about groups based on race, gender, or religion. The intent of these codes is to foster an atmosphere of tolerance and respect towards others, and to protect members of these groups from harassment and a hostile learning environment. While these aims are noble, a main problem is that the codes are often vague and potentially lump together acts of overt harassment with those that may be only mildly inappropriate. An organization called the Foundation for Individual Rights in Education (FIRE) monitors speech codes at universities throughout the U.S., and publishes lists of the worst offenders.
A seventh recently emerging area of censorship concerns the internet and what is commonly called internet neutrality. The central idea is that individual users should be in control of the content and applications that they use on the internet. Their use should not be restricted by local internet suppliers, such as cable television companies that might want to restrict access and content for their own financial gain. For example, one internet provider might try to restrict users from accessing the website of a rival internet provider. An internet provider might also allow faster internet access to some web sites, such as those of television networks who pay them fees; this will create a disadvantage for smaller websites that cannot afford those costs. The type of censorship involved here is motivated more by economic considerations, rather than by any harm or offense that the web pages themselves might produce. Still, what is at stake is the ability of all internet users to both create their own internet content and receive content from others in an open playing field. Interest in internet neutrality derives from the unique nature of the internet itself: since its inception it has allowed equal access and participation, without a regulatory body restricting its content. Traditional media outlets—newspapers, book publishers and television stations—all have stringent editorial policies that restrict their content based on space limitations, potential interest, controversy, ideology, and countless other factors. The internet is virtually the only major media outlet that doesn’t require going through such editorial scrutiny. Regardless of your viewpoint, you can create your own website to express your ideas. Free speech is not about your ability to say what you want in the privacy of your own home: it’s about your right to have an audience. And, perhaps for the first time in the history of the world, the internet has given everyone a potential audience for any expressed idea whatsoever. The American Civil Liberties Union (ACLU) states it best: “The Internet has become the 21st century’s marketplace of ideas. . . . Net Neutrality has made the Internet the most democratic forum for free speech in the world” (www.aclu.org). Defenders of internet neutrality, like the ACLU, want to preserve this freedom from restriction, regardless of whether these restrictions are motivated by money, rather than by a dislike for the ideas themselves. Censorship is still censorship.
What People Think
The surveys below indicate public opinion on several free speech and censorship issues, and the results are mixed, with no clear pattern of how people view government censorship as a whole. The responses depend on the particular issue in question, such as national security or offensive material in the entertainment industry.
"Which is more important to you—that the government be able to censor news stories it feels threaten national security OR that the news media be able to report stories they feel are in the national interest?"
Gov't Able To Censor: 23% 58%
News Media Able to Report: 62% 32%
Both Equal (vol.): 5% 5%
Unsure: 9% 5%
"In presenting material that some view as objectionable or offensive, do you think the entertainment industry is within its constitutional rights of free speech or do you think the industry has gone beyond constitutional guarantees of free speech?" (3/17-21/05)
Within Its Rights: 46%
Beyond Guarantees of Free Speech: 48%
The tension between free expression and censorship has probably existed since the very first original thinkers came in conflict with the very first governments. The issue has been of special interest to philosophers over the centuries, in part because these writers themselves often put forward controversial ideas that governments or church officials find harmful. Some philosophers have had their works censored, and many others have adopted practices of self-censorship out of fear of being arrested for their views. Philosophical discussions about free expression and censorship come down to an assessment of the values that society finds most important. Some of our most cherished values support the idea of free speech, such as those of democracy, truth, and personal autonomy. Other equally important values incline towards censorship, particularly the values of protecting one’s children, protecting society, and protecting oneself from offensive material. We will look at the main arguments regarding free speech and censorship that draw on these various values.
Three Arguments for Free Speech: Democratic Government, Search for Truth, Autonomy
The first philosophical justification of free speech is that free speech is essential for the proper functioning of a democratic government. An environment of open debate and dialogue will give lawmakers the opportunity to critically examine possible public policies of every variety. Democracy involves a wide spectrum of opinions about what is best for society, and it is impossible for law makers to act on them all. Some ideas are so bad that we would not want them to become public policies. Free speech allows people to sift through this overabundance of ideas and find the gems. The concept of free speech was at the heart of civilizations first democracy, that in the ancient Greek city-state of Athens. For around 200 years, Athenians developed a sophisticated system of democratic rule where around 50,000 male citizens participated directly in the city’s governing Assembly when the so chose. During the Assembly meetings, citizens were entitled to speak freely and frankly as part of the democratic process. The Greek playwright Euripides (480-406 BCE) describes the connection between democracy and speaking frankly:
This is true liberty, when free-born men,
Having to advise the public, may speak free,
Which he who can, and will, deserves high praise;
Who neither can, nor will, may hold his peace:
What can be juster in a state than this? [Suppliants, 438-442]
The Greek tolerance for free speech was largely confined to the political process and did not extend to ordinary public discourse, and the philosopher Socrates (469–399 BCE) is a case in point. Over the years, he routinely pushed the boundaries of free speech, and ultimately paid for it with his life. He was arrested and charged with teaching ideas that were atheistic and corrupting to the youth, and at his trial Socrates had to explain why he did not simply mind his own business. His answer was that "I am that gadfly which God has attached to the state, and all day long and in all places am always fastening upon you, arousing and persuading and reproaching you.” That is, Socrates felt that his persistent inquiries were important for the moral development of the city, and that was his higher calling that he could not resist.
When the Greek experiment with democracy ended, it would be nearly 2,000 years before democracy took hold in the modern world, and with it came the same conviction that free speech was essential to the democratic political process. British philosopher John Locke (1632-1704) wrote that anyone “who takes away the freedom [of legislative debate], or hinders the acting of the legislative in its due seasons, in effect takes away the legislative, and puts an end to the government” (Second Treatise, 215). While Locke too was talking about the freedom of open legislative debate, particularly in the British Parliament, his point is now appreciated more broadly: free speech within society is essential for preserving a democracy. Even outside of political assemblies, a vigorous exchange of views is necessary for evaluating ideas that could become law through the democratic process.
The second justification for free speech is that it is essential in society’s search for truth, completely apart from its role in democracy. Imagine a primitive village that for centuries has gotten its water by hauling it in buckets from a stream a mile away. Someone then comes up with the idea of diverting the stream to bring it closer to the village, but the community elders silence him since the implementation of his idea would disrupt the village’s longstanding tradition. The elders might even see the practical benefit of diverting the stream, but feel that doing so would change the daily rituals of the community, and possibly create discord among the villagers. We could imagine similar scenarios where leaders suppress new ideas about agricultural production, medicine, or building construction, all of which would hinder any advance in scientific knowledge. Imagine further a scenario where village leaders suppress new ideas about property ownership, redistribution of wealth, compulsory education, religious beliefs, gender roles, punishment for lawbreakers. Not all of these new ideas will be necessarily good ones, but by blocking the very discussion of new concepts the society will remain as repressed socially as it would be scientifically. In this sense, free speech is a requirement in the search for truth—both scientifically and socially.
One of the first proponents of this argument in recent centuries was British writer John Milton (1608–1674) who said “Where there is much desire to learn, there of necessity will be much arguing, much writing, many opinions; for opinion in good men is but knowledge in the making” (Areopagitica). According to Milton, when new ideas are expressed, we can count on there being argumentation and debate, but this is exactly what is needed for pushing the boundaries of knowledge and discovering new truths. New ideas must be put forward, scrutinized from all angles, tested against competing ideas, and in all likelihood the winner brings us closer to truth than we had been before. British philosopher John Stuart Mill (1806-1873) argued further that even if everyone in the world agreed on a specific issue with only a single lonely voice of dissent, we should not silence that person. To do so would cripple any effort to test the majority opinion, thereby robbing us of the chance to further truth. Mill writes,
If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. [On Liberty, 2]
Thus, according to Mill, even a wrong idea will benefit us in the quest for truth since by proving it wrong we will better confirm the truths that we already hold.
In more recent times the link between free speech and the pursuit of truth has been called the free marketplace of ideas, drawing on the notion of “free market” in economic theory. Imagine that you and I own competing companies that manufacture lawnmowers, and each of us hopes to win out over the other in the market place. I’ll continually improve my lawnmower features in an effort to make them better than yours and thereby get more consumer sales. You’ll, of course, do the same thing. Through this healthy competition, each of our products will improve, and eventually one of us may emerge as the winner, while the other goes out of business. Something similar happens with the development of ideas in a marketplace of free expression. I put forward my ideas of politics, religion, or morality, and you put forward your competing ideas. We debate and refine our ideas until one emerges as the victor that society accepts. In the words of one Supreme Court justice, “the best test of truth is the power of the thought to get itself accepted in the competition of the market” (Abrams v. United States, 1919). This doesn’t guarantee that the view accepted by society is the final truth of the matter, but in a free marketplace of ideas the dialogue will always continue and we may get progressively closer to the truth with new rounds of debate.
The third justification for free speech is that it is an essential element of our personal autonomy. We are by nature both creative thinkers and active communicators, and the line is thin that separates what we think from what we say. Both are essential to our human identity. Imagine that government scientists invented a chemical that, when put into the nation’s water supply, would affect people’s brains and prevent them from creative and critical thinking. We would certainly see this as an intrusion upon our personal identities and even our fundamental humanness. We’d be more like docile drones than full-fledged human beings. To be fully human, we need freedom of thought. This same reasoning applies not only to freedom of thought, but freedom of speech as well. Part of what it means to be a fully developed human is to have the liberty to express our thoughts through words and actions. By suppressing our opportunities for self-expression, we are forced to behave like docile drones, while at the same time our inner thoughts struggle to be unchained. Dutch philosopher Baruch Spinoza (1632-1677) makes this point here:
since every man is by indefeasible natural right the master of his own thoughts, it follows that men thinking in diverse and contradictory fashions, cannot, without disastrous results, be compelled to speak only according to the dictates of the supreme [governmental] power. Not even the most experienced, to say nothing of the multitude, know how to keep silence. [A Theologico-Political Treatise (1670), 4.20]
According to Spinoza, the government’s role “is not to change men from rational beings into beasts or puppets” (ibid), but instead to allow us to develop our identities and use our reason unshackled.
Plato First Argument for Censorship: Protecting Children
Censorship by its very nature is repressive since it tells people that they cannot express their opinions. Consequently, there are not many thinkers who stand out as proud advocates of censorship. The Greek philosopher Plato (428-348 BCE) is an exception, and an unusual one at that. As a student of Socrates, Plato embraced his teacher’s method of confrontational dialogue, and, in fact, most of what we know about Socrates’ life and teachings is sympathetically conveyed to us through Plato’s writings. It seems odd, then, that a loyal devotee of Socrates would defend censorship of any kind. However, what Plato has in mind is a narrow set of circumstances in which society might benefit from certain types of restrictions, namely, censorship that would enhance the education of privileged youth who will grow up to be leaders and protectors of society. Also, Plato has in mind the censorship of ideas that are uncritically imposed on the youth, through a type of media brainwashing. It is different if ideas are examined through critical dialogue as Socrates did, and, in fact, Plato believes that this is the only way to achieve true knowledge. But critical dialogue is not the norm in society, and, for Plato, we must censor harmful media that amounts to mere brainwashing. Even though Plato’s actual view of censorship is rather narrow, we still can apply his position more broadly to society at large, and, so, we will look at two of his arguments.
His first argument is that censorship is justified because it prevents the harmful influence of ideas that might morally corrupt our children. We have a special obligation to educate our young with ideas that will instill within them the best moral qualities. If we expose them to stories, songs, images and other media that are morally uplifting, then their moral characters will be positively shaped. But, if the ideas they receive are morally corrupting, then their moral characters will be damaged. As the modern saying goes, “garbage in, garbage out”. When we think of media today that might morally harm children, what usually comes to mind are television shows, video games, and song lyrics that promote violence, sexual promiscuity, drug use, or disrespect for authority. Plato might agree with these, but he goes much further and suggests that there are morally corrupt messages even within religious scriptures that need to be censored to protect children. He specifically targets religious stories by the Greek classic writers Homer and Hesiod, who depict the Gods as ruthlessly quarreling and warring with each other. Maybe these have some higher symbolic meaning, but a child will never see it that way and assume instead that bitter fighting is acceptable behavior. Plato writes,
These tales must not be admitted into our State, whether they are supposed to have an allegorical meaning or not. For a young person cannot judge what is allegorical and what is literal; anything that he receives into his mind at that age is likely to become indelible and unalterable; and therefore it is most important that the tales which the young first hear should be models of virtuous thoughts. [The Republic, Book 3]
In Plato’s day, the writings of Homer and Hesiod were sacred scriptures, and an equivalent in our own day might be the suggestion that we need to censor Old Testament stories that depict God as angry and vengeful. For Plato, it does not matter whether the source of ideas is secular or religious: if the ideas are morally harmful, they should be suppressed.
Plato Second Argument for Censorship: Protecting Society
Plato’s second argument for censorship is that it is needed for the protection of our society. He argues that there is a specific reason that we need to censor potentially corrupting material from the youth, and that is because when they grow up the survival of the country will depend upon them. This is especially so for our leaders who are responsible for setting the country’s direction and mediating the competing desires of the citizens. Think of what the worst political leaders are like: they are dishonest, power hungry, greedy, and driven by personal interests more than by what is good for the nation. They become embroiled in sex, bribery, and corruption scandals, and refuse to voluntarily step down from office even when public opposition to them is overwhelming. Something went wrong with these leaders long before they took office, and, for Plato, it is that they were corrupted in their youth, perhaps by reading stories in Homer which romanticize the self-serving battles that the gods waged against each other, as each tried to subdue his or her rival. Our leaders need to have their characters shaped by a search for what is good, just and true, and not by messages in the media that glorify selfish desire.
When translating Plato’s message into our contemporary democratic environment, he is saying that a successful democracy depends upon citizens choosing to do what is morally right for society, and not succumbing to their worst selfish desires. Society can advance that goal by censoring material that glorifies our basest drives. This is precisely the goal established by the Motion Picture Production Code of 1930, which regulated film censorship for three decades:
If motion pictures present stories that will affect lives for the better, they can become the most powerful force for the improvement of mankind. . . . [Film producers] know that the motion picture within its own field of entertainment may be directly responsible for spiritual or moral progress, for higher types of social life, and for much correct thinking.
This attitude is also reflected in the following three general principles of the Motion Picture Production Code:
1. No picture shall be produced that will lower the moral standards of those who see it. Hence the sympathy of the audience should never be thrown to the side of crime, wrongdoing, evil or sin.
2. Correct standards of life, subject only to the requirements of drama and entertainment, shall be presented.
3. Law, natural or human, shall not be ridiculed, nor shall sympathy be created for its violation.
In short, censorship is there for the survival of society. We are surrounded by hostile countries that would like nothing better than to attack us and destroy our way of life. We need to take seriously the critical role that high moral standards play in holding a nation together and keeping it strong, and sometimes this involves censoring ideas that undermine those standards.
Feinberg’s Argument for Censorship: Offense to Others
A third major argument for censorship is that it protects us from offensive conduct and speech. Flag burning offends, and so too do hate speech, pornography, and desecration of religious symbols, and for that reason these expressions should be suppressed. Even if they do not morally corrupt children or put our society at risk, the fact that they cause offense in and of itself is a justification for their censorship. On the surface, this argument for censorship has an appeal: there are things that offend each one of us and we would prefer that those things never surface to begin with. The problem, though, is that we cannot simply apply a simple formula like “if an idea offends, then its censorship is justifiable”: there are varying degrees of offense, and different people find different things offensive. It is not reasonable to censor an idea merely because it offends a select group of religious leaders, for example. We need some standard by which to distinguish those differences if the notion of offense can play any meaningful role at all in the free speech and censorship debate. American philosopher Joel Feinberg (1926-2004) offered such a test for identifying offensive expressions that might be worthy of censorship, and there are four relevant conditions to that test.
First, Feinberg argues, we must consider the magnitude of the offense: the offense must be a serious one, and not just a trivial nuisance. An offense has a greater magnitude when it is more intense, lasts a longer time, and affects a wider range of people. Flag burning, for example, would have a much greater magnitude of offensiveness than would someone simply wearing a T-shirt with a four letter word on it. Second, for an offense to warrant censorship it must also be one that is difficult to avoid. We can avoid offensive messages on T-shirts, bumper stickers, or protest signs by looking in another direction or walking on the other side of the street. The more difficult it is to avoid the message, the greater the problem. With flag burning, for example, we do not actually need to see someone set the flag on fire. Merely knowing about it from the news media or casual conversation is enough to trigger a negative reaction, and it is not reasonable for society to expect us to shelter ourselves from all interaction with others, merely to filter out a potentially offensive expression. Third, to be worthy of censorship, exposure to the offense cannot have been something that I voluntarily brought on myself. For example, I cannot voluntarily walk into an art museum and then protest that a work like Ofili’s The Holy Virgin Mary should be censored since it offends me. Since I knowingly put myself in that situation, I have no one to blame but myself if I’m offended. Fourth, we must also pay less regard to the reactions of people who are abnormally susceptible to offense. Some people are more inclined to have offensive reactions than others, perhaps because they’re psychologically more sensitive, or they have sheltered lives, or they’re part of a special subculture, or they are used to getting their own way. For whatever reason, people who are unusually predisposed to offensive reactions should not determine the rules for what society at large censors.
According to Feinberg, then, for an expression to be worthy of censorship, it must pass all four of these conditions. But, in a society like ours with a wide variety of cultures and belief systems, it will be difficult to find many offensive expressions that can meet all four. Take Ofili’s The Holy Virgin Mary: yes it probably passed the second and third conditions since many people were unavoidably offended by it, without having to witness it first hand—either voluntarily or involuntarily. However, it probably failed the first and fourth conditions. The magnitude of the offense was likely limited to members of religious groups who especially revere Mary, such as conservative Catholics. Also, the most extreme reactions were voiced by—or influenced by—conservative religious leaders who, by their very job descriptions, are often abnormally susceptible to offense. In a more Catholic-dominated country, such as Ireland or Italy, it is likely that all four criteria of offense would have been met to justify censoring Ofili’s painting. Not so in the U.S.
PUBLIC POLICY ISSUES
Laws defending free speech were virtually nonexistent until modern times, and it is perhaps only within the past century that they have come to resemble the robust system that we know today. We have seen that for a short time ancient Athenians permitted a type of free speech that was restricted to their legislative assembly. But the Hellenistic, Roman and medieval empires that followed routinely censored publications that, on their judgments, undermined the ideological values and cohesiveness of their domains. The writings from the ancient world that have come down to us represent only a fraction of the total literary output of their time, and the survivors are those which, for the most part, passed the censors’ scrutiny. It was only in the seventeenth and eighteenth-centuries that a handful of European countries set the groundwork for legally protected free speech.
Legally Protected Free Speech
The story of legal protection of free speech in the English-speaking world begins in 17th-century Great Britain, with a book censorship law called The Licensing Order of 1643, which formalized a set of publishing restrictions that England had already been under for some time. The aim of the Licensing Order was to suppress “the great late abuses and frequent disorders in printing many, false forged, scandalous, seditious, libelous, and unlicensed papers, pamphlets, and books to the great defamation of religion and government.” But Britain had reached a point in its social development where these restrictions were becoming increasingly unpopular. The invention of the printing press, coupled with a growing middle class of educated readers, created a unique opportunity for circulating new ideas. Milton’s defense of free speech discussed above specifically targeted the Licensing Order. A few decades later Britain’s Parliament enacted the English Bill of Rights (1689), which, among other liberties, granted that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” As with the ancient Athenians, this only extended free speech to legislative debate, not to ordinary public discourse. But a few years later the restrictive Licensing Order of 1643 expired, and was not further renewed. While this still did not legally guarantee free speech, it removed the most oppressive restrictions, and British authors took advantage of the more lax publishing environment.
Until the American Revolution in 1776, free speech in the American colonies was regulated by British law, which was evolving to allow for greater liberty of public expression. Nevertheless, prior to the American Revolution, the only type of speech that had full legal protection was that within the context of legislative debate. Today in the U.S. we see free speech in all of its varieties as something that is guaranteed by the U.S. Constitution. But this broad notion of Constitutionally secured free speech was long in the making, and the result of comparatively recent Supreme Court decisions that clarified the scope of the First Amendment to the Constitution. As part of the Bill of Rights, originally ratified by Congress in 1791, the First Amendment states,
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The original intention here was that the U.S. Congress itself would not restrict the above forms of expression, but that individual states could if they chose to do so. For example, Massachusetts might adopt only a few censorship laws while Georgia might adopt many. The First Amendment was a concession to the rights of states to create their own laws, independently of the federal government. Thus, as originally understood, the First Amendment did not protect citizens against censorship from states. It was the Fourteenth Amendment, ratified in 1868, that limited states’ rights in a variety of areas, as expressed here in a portion of the Amendment known as the “due process” clause:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Fourteenth Amendment does not explicitly use the phrase “free speech”, but only that of “liberty.” Eventually, though, the 1931 Supreme Court case Stromberg v. California established that all the rights listed in the First Amendment are incorporated into the Fourteenth Amendment notion of “liberty,” including that of free speech. It was only then that free speech became a Constitutionally protected right of all U.S. citizens, regardless of the state in which they live.
Each country has its own history of legally protected free speech, but in 1948 the United Nations forced the issue with the adoption of the Universal Declaration of Human Rights, which includes the following:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. [Article 19]
The Universal Declaration was originally devised as a statement of objectives towards which governments should strive, and, technically speaking, it is not a legally binding international law. However, it is an international statement of standards that is theoretically acknowledged by all members of the United Nations, which today include virtually every country on earth. Whether a given country lives up to this ideal standard of free speech established by the United Nations is another question, and many of the most oppressive regimes today are far from it. But the ideals set forth in the document are often used as a standard by which the United Nations and other human rights organizations can condemn the conduct of offending governments.
Legal Limitations of Free Speech
Even in a country like the U.S. that values free speech, not every expressed idea is legally protected, and since the 1920s the U.S. Supreme Court has clarified the Constitutional limits of free speech. While there is no master list of exceptions to free speech, the critical ones include expressions that (1) pose a clear and present danger of imminent violence or lawlessness, (2) threaten national security, (3) constitute fighting words that inflict injury, (4) maliciously defame someone’s character through false facts, or (5) are obscene as judged by community standards. We will look at each of these.
The cornerstone of many legal restrictions on free speech is the clear and present danger doctrine, which allows governments to prohibit expressions that cause danger to public peace, the classic example of which is someone causing panic by shouting “fire” in a crowded theater. This doctrine was articulated in a Supreme Court case involving a socialist politician named Charles Schenck who during World War I distributed pamphlets urging people to dodge the draft. The Court upheld his conviction and stated that “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent" (Schenck v. United States, 1919). Later court decisions clarified the clear and present danger doctrine to prevent it from applying too broadly. One ruling introduced what is sometimes called the “time to answer” test: an expression cannot be considered a clear and present danger if there is full opportunity to discuss the merits of the idea. “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression” (Whitney v. California, 1927). The point is that it is hard to see an expression as an immediate danger if there is time to sit down with the person and debate with him about his idea. A more recent ruling introduced the imminent lawless action test whereby governments can restrict an expression that produces “imminent lawless action and is likely to incite or produce such action” (Brandenburg v. Ohio, 1969). The criterion here of “imminent lawless action” is a little more precise than that of “clear and present danger,” but the central point is the same: expressions that threaten immediate harm may be censored.
The Supreme Court’s view on free speech and national security was formulated in a case involving Benjamin Gitlow, a prominent communist politician, who was convicted in New York for anarchy because he published a pamphlet that called for violent revolution. Even though the pamphlet was written in Yiddish, not English, the Supreme Court upheld his conviction stating that “Such utterances, by their very nature, involve danger to the public peace and to the security of the State. They threaten breaches of the peace, and ultimate revolution. . . . A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration” (Gitlow v. New York, 1925). According to this ruling, legislative bodies, like that of New York State, are permitted to enact laws that punish offenders for expressions that aim to unlawfully overthrow the government. However, the Court recognized that there are no grounds for restricting the “utterance or publication of abstract doctrine or academic theory having no propensity to incite concrete action.” The speech must urge a course of action that threatens the government, which, the Court believed, Gitlow did.
The fighting words doctrine was established in a Supreme Court case involving a Jehovah’s Witness proselytizer named Walter Chaplinsky. When preaching and passing out pamphlets on a street in Rochester, New Hampshire, the crowd around him began to block traffic, and a police officer attempted to bring him to the police station. Chaplinsky responded by saying to the police officer “You are a god-damned racketeer, and a damned fascist and the whole government of Rochester are Fascists or agents of fascism.” He was subsequently convicted of violating a state law against abusive language in public. The Supreme Court upheld his conviction stating the following:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [Chaplinsky v. New Hampshire (1941)]
While the fighting words doctrine is still Constitutionally valid, the Supreme Court has been reluctant to apply it to specific cases, even on an issue as confrontational as flag burning. In a recent flag burning case, the Court overturned a conviction stating that "if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable" (Texas v. Johnson, 1989). The court has also overturned convictions on cross burning, and a case where a man wore a jacket with the words “F*** the Draft” inside a city courthouse.
Defamation is a type of expression that harms a person’s reputation, typically when uttered with full knowledge of its falsehood. Libel is when the defamation is in published form, and slander is when it is merely spoken. U.S. laws against defamation trace back to British laws during colonial American times, and for much of U.S. history it was assumed that defamation was not Constitutionally protected speech through the First or Fourteenth Amendments. Thus, states enacted various laws against libel and slander. But a 1964 Supreme Court case established what is called the public figure doctrine, according to which the standards against defaming a public person are more lax than those pertaining to an ordinary person. In this case, the New York Times published an attack advertisement against the police commissioner of Montgomery, Alabama for civil rights infringements committed by that city’s police. Some of the statements were inaccurate and Sullivan won a law suit against the Times. Upon appeal, though, the Supreme Court overturned Sullivan’s victory on the grounds that requiring 100% accuracy in debates over public issues would too severely restrict free speech and lead to journalistic self-censorship:
[We recognize that] erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the "breathing space" that they "need . . . to survive" . . . . A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable "self-censorship." [New York Times v. Sullivan]
What matters is whether an attack on a public official is made with reckless disregard for the truth, and the Times did not do that. While this case specifically involved defamation of a public official, the reasoning was later extended to other public figures who have “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved” (Gertz v. Robert Welch, 1974). Political activists, movie stars, editorial writers, and bloggers routinely present their views before the public on controversial issues. In doing so, they voluntarily make themselves targets of attack and are in essence like public figures.
While the public figure doctrine is a testament to the U.S. commitment to free speech, it has also placed many American authors at risk for what is called libel tourism—that is, suing an American author for libel in a foreign country that has weak free speech laws. The United Kingdom is such a country, and London has become the libel tourism capital of the world. A famous example is American author Rachel Ehrenfeld who was sued by a Saudi billionaire banker for exposing his connections with terrorist funding. Ehrenfeld’s book in question, titled Funding Evil (2003), was published in the U.S., but 23 copies were sold in the U.K. through Amazon.com, and a sample chapter was accessible online internationally. That was sufficient for the Saudi banker to bring defamation charges against Ehrenfeld in the U.K. She did not appear in court to defend herself, and a summary judgment against her awarded the banker $225,000 in damages, and ordered her to apologize and destroy remaining copies of her book. Ehrenfeld’s case led Congress to pass the Free Speech Act of 2010, which makes foreign libel judgments unenforceable in the United States unless they conform to U.S. standards of free speech.
Obscenity is the legal term for what we more commonly call pornography. For a couple decades the Supreme Court debated over whether obscene material was Constitutionally protected under the First Amendment, or whether state and local governments could prosecute distributors of pornography. The issue was settled in the 1973 Supreme Court case involving a man named Marvin Miller who ran a mail order business and was convicted in California for distributing adult material. The Supreme Court upheld his conviction and ruled that obscenity is not Constitutionally protected and thus can be banned by state and local governments. However, the Court argued, state and local governments must apply a strict test to determine whether the erotic material in question counts as “obscene”. The test has three parts:
(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest [i.e., sexual desires],
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. [Miller v. California]
The test aims to identify erotic material whose primary aim or effect is to cause sexual arousal in its audience, with no redeeming social value. Such material then might be judged obscene and thereby prohibited by a local government. A central component of the test is that local communities can determine for themselves, based on their own community standards, whether a particular work has sexual arousal as its primary aim or effect: there does not need to be any national standard. According to the Court’s decision, “our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation” (ibid).
ARGUMENTS PRO AND CONTRA
With some moral issues, the conservative and liberal positions are clearly defined. For example, the conservative view on abortion favors having more restrictions on abortion procedures, and the liberal view favors having fewer. With the issue of free speech and censorship, though, the conservative and liberal positions are sometimes skewed. Both sides agree that free speech is an important right, and that censorship should only be done in very compelling situations. They differ, though, with their assessments of which situations are compelling. For example, conservative groups today tend to prefer the censoring of flag burning, but not censoring hate speech; liberal groups tend towards the opposite of both. Nevertheless, if we consider the free speech and censorship debate as part of a several hundred year contest, apart from popular trends today, a more consistent pattern emerges. Thus, it is in this larger historical context that we need to understand the terms “conservative” and “liberal” as used below.
The Conservative Position
The conservative view on the issue of censorship is that free speech can be abused when it undermines traditional values and social stability, and in some cases censorship is justifiable. The main arguments for the conservative position are these:
1. Protecting children: Censorship shelters children from ideas that may damage their moral development. One of the oldest and most universal human values is that of parents educating their children. We do this as a matter of instinct as well as from a sense of moral obligation. The guiding rule of all parenting is to do what is best for one’s children, and we recognize that parents have great latitude in determining for themselves what is best. Parents shape not only the education, careers and hobbies of their offspring, but, more importantly, their moral, political and religious views. When the free speech of others runs wild, this intrudes on parents’ abilities to morally educate their children. The most intrusive and harmful expressions of others may justifiably be censored. A criticism of this argument is that too often the claim to protect our children is used as an excuse to impose one’s value system on all of society. Yes, we have a right and responsibility to see to the moral development of our children, but this should not hijack something as important as free speech. Parents can effectively protect their children from harmful ideas without censoring the expression of views that are of interest to adults.
2. Governmental stability: Censorship helps stabilize society by preventing the erosion of governmental authority. All the freedoms that we have and the activities that we engage in are only possible because we have a stable government and a stable society. Without this stability we would lapse into a state of nature where our lives would be, as Thomas Hobbes says, “solitary, poor, nasty, brutish, and short” (Leviathan, 13). It is easy for us to take governmental and social stability for granted, and assume that it will always be that way. But even a cursory look at history will show that the risks of social upheaval are much greater than we think. Some threats to governmental stability cannot be anticipated or prevented, such as attacks from hostile countries. But the threats that we bring on ourselves through socially destabilizing speech is another matter. We can foresee and stop these, especially the worst kinds. A criticism of this argument is that censorship in the name of governmental stability can easily lead to governmental tyranny. By censoring free expression, particularly the type that is critical of the government itself, the government puts itself in a position where it can do what it wants without hindrance of public opposition. Free speech is an important check and balance against a government that extends its authority too far.
3. Traditional values and Offense: The most offensive expressions are those that attack traditional values, and censorship protects those values from attack. Every society has a bedrock of values—core beliefs and moral codes that regulate how we behave and interact with each other. We internalize basic values, they become an integral part of our identities, and an attack on one of these values quickly translates into an attack on us personally. While there may always be room for critique of traditional values, the time-honored place that they hold within society demands that such critiques be done diplomatically. The most harmful and offensive ones should be censored. A criticism of this argument is that sometimes it takes harsh and even offensive expressions to make society re-examine their most ingrained traditional values. Traditional values during the Middle Ages included a rigid class distinction between wealthy aristocrats and impoverished peasants. It forced adherence to a single religious institution under penalty of torture and death. Even today, not all traditional ideas are good ones, and sometimes it takes dramatic expressions of ideas to shake people from their entrenched views to even consider alternatives. This will inevitably cause offense, but it is an offense that has justification.
The Liberal Position
The liberal view on the issue of censorship is that free speech should be permitted even when it attacks traditional values, and in few cases is censorship justifiable. The main arguments for the liberal position are these:
1. Democracy: Censorship is damaging to the democratic process since, by silencing some ideas, it thereby favors others. Often the favored ideas are defended by those who have the most money or power to advance their views; their ideas, then are perpetuated at the expense of society’s most underprivileged people. Censorship is then an act of intolerance towards those whose voices need to be heard the most. The result is oligarchy, which is rule by a small elite group, and not democracy. For democracy to function properly, we need an environment in which the broadest range of ideas can be freely expressed and debated. A criticism of this argument is that the expression of some ideas are irrelevant to the democratic process, particularly ideas that are most harmful or offensive. The machinery of democracy will continue running just fine even if pornography and hate speech are censored. Democracy indeed requires a wide spectrum of expressed ideas, but not a 100% open environment of expression.
2. Discovering truth: Censorship undermines the effort to discover new truths and expand society’s knowledge base. The discovery of both moral truths and scientific truths results from trial and error. To push the boundaries of knowledge we need to explore new ideas, and very often these are unpopular. The history of science is largely a history of new ideas that were ridiculed when first proposed, but later proved to be true, such as the germ theory of disease, the theory of relativity, and the theory of continental plates. Social ideas too, such as gender and racial equality, humane treatment of prisoners, and due process of law, originally faced considerable obstacles. Through free and open debate, the best ideas will then be the ones that have adapted to and survived the critical scrutiny of those with competing interests. The pursuit of all knowledge is a painful process since it forces us to re-evaluate old ideas that we have become comfortable with. Censorship surrenders to old ideas without even allowing an opportunity to consider rival ideas that may prove true. A criticism of this argument is that some speech can cause great harm, and these harms outweigh the benefits of the free expression of these ideas. Hate speech harms the targeted minority groups. Gratuitous violence in television, film and music encourages violence in the real world. Pornography has a harmful impact on society’s perception of women. These cater to our basest human inclinations, and it is difficult to see where a higher truth might be discovered through an unrestricted outpouring of these views and images.
3. Personal autonomy: Censorship restricts our natural inclination towards self-expression, and strikes at the heart of our human identity. One of the defining features of human nature is our capacity to express our opinions, to question the views of others and offer our own unique perspectives. This is an especially important element for one’s sense of individual uniqueness, when society expects everyone to think and behave in fixed and predictable ways. We cannot help but express ourselves, and governments shouldn’t try to stop us. A criticism of this argument is that personal restraint is as important to one’s identity as is self-expression. We have many spontaneous urges and impulses, such as towards eating, procreation, anger, vengeance, jealousy; in each case we learn to restrain ourselves. If we did not, we would be imprisoned or, worse yet, killed by others in conflicts that we have started. Why should self-expression be any different? It is just one more natural inclination that contributes to mature human character when exercised properly, but can distort our true humanity when abused through unrestraint.
A Middle Ground
Finding a half-way point on specific controversies of censorship is especially challenging, since any compromise will mean abandoning one’s conviction on that issue. Where, for example, is there a middle ground on the issue of flag burning without completely capitulating to the opposition? For conservatives, it would mean conceding to liberals the right to burn flags; for liberals it would mean conceding to conservatives the prohibition against flag burning. And it is not an option to suggest burning only half of the flag. The difficulty stems from the fact that censorship is not about a single issue of expression, but rather a potential reaction towards a wide range of issues, such as flag burning, anti-government slogans, hate speech, the desecration of religious symbols, vulgar language, and a host of other controversial forms of expression. A person who feels strongly about flag burning may not necessarily care about other anti-government slogans or the desecration of religious symbols.
While there may be minimum opportunity for common ground on some specific issues of censorship, there are still the commonly shared convictions of conservatives and liberals alike about the value of free speech and the reasonable limitations that we impose on it. When two sides cannot agree on whether a type of speech should be censored, the Supreme Court is a valuable referee for settling the issue. They not only pronounce who the winner is, but offer reasons for their judgment, which both conservatives and liberals can analyze and evaluate. Among the Court’s various rulings, we find some of the most compelling statements on free speech that have ever been written. One of these is Justice Potter Stewart’s dissenting opinion on a pornography case, where he thought the other justices ruled too harshly:
Censorship reflects a society’s lack of confidence in itself. It is a hallmark of an authoritarian regime. Long ago those who wrote our First Amendment charted a different course. They believed a society can be truly strong only when it is truly free. In the realm of expression they put their faith, for better or for worse, in the enlightened choice of the people, free from interference of a policeman’s intrusive thumb or a judge’s heavy hand. So it is that the Constitution protects coarse expression as well as refined, and vulgarity no less than elegance. A book worthless to me may convey some value to my neighbor. In the free society to which our Constitution has committed us, it is for each to choose for himself. [Ginzburg v. United States, 1966]
Stewart here suggests that we should err on the side of caution when deciding whether to censor material. This involves a risk, but taking that risk is much better than the alternative of letting a heavy-handed government official make the call.
READING 1: AGAINST STUDENT SPEECH CODES (Greg Lukianoff)
I am the director of legal and public advocacy for the Foundation for Individual Rights in Education, commonly known as FIRE. For four years now, FIRE has been fighting for free speech and academic freedom on college and university campuses across the nation, following through on the analysis and recommendations contained in a book written by FIRE’s co-founders, Alan Charles Kors and Harvey A. Silverglate–The Shadow University: The Betrayal of Liberty on America’s Campuses. Prior to working for FIRE, I was unaware of how common serious violations of students’ basic free speech rights are on today’s campuses. Since working at FIRE, however, I have witnessed hundreds of cases in which private and public universities have demonstrated a distressing disregard for free speech. FIRE has come to the defense of anti-war protestors, pro-war demonstrators, satirists, political activists from across the political spectrum, student newspapers, and students and faculty who often have done little more than criticize an administration or its policies, or who have tried constructively and peaceably to address pressing social or political concerns.
While violations of basic expressive rights are always troubling, it is especially disturbing when they take place at our colleges and universities–institutions that depend on an open exchange of ideas in order to fulfill their most basic mission. Colleges and universities should be the institutions where individuals enjoy the greatest possible free speech rights. Sadly, students and faculty too often have to fight for the right to express opinions that citizens outside of academia would simply take for granted as enjoying full legal protection.
Despite the protections of the First Amendment at public universities and the powerful statements of commitment to free speech and academic freedom at most private liberal arts colleges and universities, many campuses still promulgate speech codes. You may wonder what we mean by “speech codes.” FIRE defines a speech code as any campus regulation that punishes, forbids, heavily regulates, or restricts a substantial amount of expression that would be protected in the larger society. Our definition is straightforward and applies to all university policies whether they call themselves “speech codes” or not. In contrast to the way that such codes were put into effect during their heyday in the late 80s and early 90s, colleges today are loath to label their policies “speech codes” even when they restrict or forbid clearly protected speech. This may be a result of a series of court cases in which university speech codes were struck down as unconstitutional, or perhaps it is a reaction to public relations disasters that were generated by early attempts to regulate student speech.
But make no mistake, as Harvey Silverglate and I explain in our attached article, speech codes are alive and well on college campuses.1
The current generation of speech codes come in many shapes and sizes, including but not limited to e-mail policies that ban “derogatory comments,” highly restrictive “free speech zone” policies, “diversity statements” with provisions that outlaw “intolerant expression,” and so-called “harassment policies” that extend to speech that may “insult” or “demean.” While they may not call themselves “speech codes” anymore, a speech code by any other name still suppresses speech.
FIRE has been combating speech codes as a part of its general operations for the last four years. We have come to the defense of thousands of individuals who have been the victims of rules and regulations that should have no place on our campuses. Drawing from that experience, we decided to undertake a colossal program that seeks to catalog the restrictive speech policies on every college and university campus across the country. The preliminary results of this massive research undertaking can be found on a public website, speechcodes.org. The website–which, according to our research, is current through this past summer–now features nearly 200 public and private colleges and universities. FIRE has rated each of the non-sectarian universities using a “lighting scheme”: green lights indicate that we found no policy that seriously imperils speech; yellow lights indicate that a university has some policies that could ban or excessively regulate protected speech; and red lights are awarded to universities that have policies that ban a substantial amount of what would be clearly protected speech in the larger society. Of 176 rated universities only 20 have earned green lights, while 80 earned yellows. A distressing 76–forty-three percent of the institutions rated–earned red lights.
Examples of Troubling Speech Codes
Some of these red light polices are truly bizarre. For instance, Hampshire College in Massachusetts bans “psychological intimidation, and harassment of any person or pet.” Others are almost quaint, like Kansas State University, which bans the use of “profane or vulgar language” when it is used in a “disruptive manner.” It has long been settled in constitutional law that free speech is not limited only to the pleasant or the pious.
Some codes are remarkably broad and vague, like that of Bard College in New York, which states, “It is impermissible to engage in conduct that deliberately causes embarrassment, discomfort, or injury to other individuals or to the community as a whole.” By banning speech that “discomforts,” Bard takes a position that has been adopted by many colleges and universities: valuing and promoting peace and quiet at the expense of robust debate and intellectual engagement. To be sure, politeness is a commendable value, but it simply does not compare in importance to unfettered debate and discussion in a pluralistic democracy. Furthermore, it is not the place of college administrators to force students to speak in any particular fashion. Civility should, perhaps, be inculcated when a student is young, by his or her elementary school teachers and by parents. In college, it should be learned by example. Furthermore, conditioning speech on civility virtually denies the existence of justified moral outrage.
Other codes define the “protected class” of the speech code so broadly as to ban even the most basic forms of free speech. The University of California-Santa Cruz, for example, warns against speech that shows “disrespect” or “maligns” on the basis of, among other categories, “creed,” “physical ability,” “political views,” “religion,” and “socio-economic status or other differences.” One can only imagine what dreary places colleges would be if students weren’t even allowed to express passionate political criticisms.
Still others dangerously trivialize society’s most serious crimes in an effort to get at “offensive speech.” Ohio University’s “Statement on Sexual Assault,” for example, declares that “Sexual assault occurs along a continuum of intrusion and violation ranging from unwanted sexual comments to forced sexual intercourse.” One should be very concerned about any university that cannot make a principled distinction between loutish comments and rape.
Most colleges, however, rely on this strategy: they redefine existing serious offenses to include protected expression. Hood College in Maryland, for example, defines “harassment” as “any intentionally disrespectful behavior toward others.” While “disrespectful behavior” may be rude, it certainly does not rise to the level of the crime of harassment. No one denies that a college can and should ban true harassment, but hiding a speech code inside of a “racial- harassment code,” for example, does not thereby magically shield a college or university from the obligations of free speech and academic freedom.
A particularly pernicious brand of speech code goes beyond punishing what one says and extends to what one feels, thinks, or believes. Transylvania University in Kentucky bans “oral, and written actions that are intellectually . . . inappropriate” if they touch upon a broad list of protected classes. Florida State University’s “General Statement of Philosophy on Student Conduct and Discipline” states, “Since behavior which is not in keeping with standards acceptable to the University community is often symptomatic of attitudes, misconceptions, and emotional crises, the treatment of these attitudes, misconceptions, and emotional crises through re-education and rehabilitative activities is an essential element of the disciplinary process.” All citizens should be very concerned when state universities, which often offer only a bare minimum of due process, take upon themselves the “re-education” of adult students and empower themselves to compel correct “attitudes.” That is not worthy of a free nation.
Another kind of speech code is the so-called “speech zone” policy, which limits protests, debates, and even pamphleteering to tiny corners of campus. FIRE has identified or fought these polices at over two dozen public universities. Until this past summer, Western Illinois University provided students with only one “Free Speech Area.” This area was only available during business hours and had to be reserved five days in advance. Even within the “Free Speech Area,” additional speech restrictions applied. Until FIRE intervened, Texas Tech University–a school with 28,000 students–provided only one 20-foot- wide gazebo to be used as a “Free Speech Area.” Protests, demonstrations, pamphleteering, speeches, and even the distribution of newspapers had to receive prior, official approval if they were to occur outside of the “free speech” gazebo and requests had to “be submitted at least six university working days before the intended use.”
Texas Tech has since expanded the number of speech zones on campus, but FIRE continues to fight, along with a broad coalition that includes the Alliance Defense Fund in the courts and a new student group called Students for Free Speech on the ground. We are determined to make Texas Tech grant its students the full freedoms that students at an institution of higher learning deserve–not just the bare legal minimum.
Negative Effects of Speech Codes
Lest anyone think that these speech codes might not be such a threat if they are applied judiciously and fairly, they need only consult our website at www.thefire.org. In the past year alone we have seen dozens of examples of blatant violations of the free speech rights of students and faculty members. At Harvard Business School, an editor was threatened with discipline for publishing a mildly critical political cartoon. We continue to work on behalf of a professor who was fired for “faithlessness and disloyalty” for daring to criticize the policies of the president of Shaw University in North Carolina. At California Polytechnic State University we came to the assistance of a student who had been subjected to a seven-hour hearing and found guilty of disruption for posting an “offensive” flier advertising an upcoming speech by a black conservative. The flier only contained information about the speech, the name of the speaker’s book, and a photo of the speaker. FIRE is currently helping a fifty-five-year-old grandmother who is a student at SUNY Suffolk and has been found guilty of “harassment” and “intimidation” for using a single profanity in an e-mail accidentally sent to a professor. At Roger Williams University in Rhode Island, just within the past few weeks, administrators froze an entire year’s worth of printing funds for a student newspaper, The Hawk’s Right Eye, when it published a number of controversial articles. At this very moment, FIRE is involved in half a dozen other cases involving serious infringements upon the free speech rights of students and faculty, and these cases keep on coming.
Free speech is not, nor should it ever be, a partisan issue. Part of the brilliance of our form of government is that it binds the rights of each individual to the rights of all citizens. As a society, we only enjoy the rights that the least of us receive. Therefore, all of our rights depend on the protection of even the most controversial or “politically incorrect” of us–and, rest assured, the definition of “political correctness” changes dramatically over time. However, since colleges and universities recognize that if they were really to ban all speech that offends anyone all colleges and universities would be reduced to silence, they often apply their speech restrictions with an unconcealed double standard.
While it has been FIRE’s experience that students and professors with orthodox religious views, conservative advocates, and bold satirists are more likely than others to be censored under the current campus climate, we all have a common interest in the free speech of our nation’s students. While it may be the more conservative students who today feel the brunt of speech codes on campuses, it was only a generation or two ago when the shoe was on the other foot and liberal students bore that burden. The problem is censorship, pure and simple. The group that bears the brunt of censorship at any given moment in history is of academic interest, but the existence of censorship that can silence you one year and your opponent the next is the ongoing problem. Not only are all students affected by these overbroad policies–and students of every political stripe are punished if they cross certain, often arbitrary, lines–but everyone suffers when any side of an important debate is stifled, silenced, or otherwise quashed.
And make no mistake about it, the war for free speech is often not ideological at all. Campus censorship is quite often a simple, naked exercise of power. For example, at Hampton University in Virginia, the entire press run of last week’s Hampton Script was confiscated by administrators who were angry about the paper’s refusal to run a letter from the university’s acting president on the front page. College and university administrators too often view criticisms of their policies as tantamount to sedition. Furthermore, many administrators censor viewpoints not to achieve an ideological purpose or ideological homogeneity, but rather to avoid having offended students conduct noisy demonstrations that embarrass the administration. But this kind of “trouble”–loud, vociferous, and often unruly dissent–is indispensable to higher education; it is not an embarrassment or an inconvenience that needs to be stamped out. American freedom may occasionally be more troublesome than the order that exists in a police state, but it is our most precious birthright.
As noted earlier, if there is one constant in the history of free speech, it is that the censored of one generation often become the censors of the next. This vicious cycle of censorship teaches citizens to take advantage of any opportunity that they have to silence those on the other side. Students educated in this environment can hardly be blamed if they come to view speech as little more than a tool that they must do their best to deny their enemies, rather than as a sacred value. That is a terrible threat to American liberty.
FIRE hopes that we can put an end to this vicious cycle of censorship with this generation. With the help of a coalition of individuals and organizations from across the political spectrum, we can teach the current generation that a free society’s cure to “bad” speech is more speech.
The Government’s Role
It is important to mention, however, that there are grave dangers that you must avoid in congressional involvement to return free speech to campus or through any other attempt to legislate an expansion of intellectual diversity. Well-intentioned legislation designed to protect the interests of different groups of students is all too often used as an excuse for censorship. For example, the sexual harassment regulations issued by the Office for Civil Rights of the Department of Education (OCR) have been abused and misinterpreted so commonly to justify regulations that punished merely “offensive” speech that the OCR decided it needed issue a letter of clarification this past summer. This letter of clarification stated what one might think would be a self-evident point: no federal regulation may be used as a justification for denying students or faculty the free speech rights that are protected under the First Amendment. The OCR incident is only the most recent example of how regulations that were passed with the best of intentions can be turned into weapons of censorship.
History shows that efforts to control either speech or the content of speech almost always result in abuse, leading to the suppression of unpopular ideas or opinions. Any bill that would ban “indoctrination” on campus, for example, or that would promise “unbiased teaching,” could too easily result in a nightmare of abuse and suppression as different sides fight to label the other sides’ arguments as “indoctrination” and their own as simply “truth.” The best way for Congress to ensure intellectual diversity on campus is simply to work to remove the often unlawful restrictions on speech that currently exist. When students and faculty do not have to fear punishment for expressing their deeply held beliefs–no matter how outrageous or unpopular–greater intellectual diversity will result.
Yet any such legislation should be crafted with great care so as to avoid undue governmental control of or influence over institutions of higher learning, particularly at private institutions. Legislation should remind public universities that they have not only a moral, but also a legal duty to protect rather than infringe upon free speech, and that speech restrictions that would be unconstitutional in the outside world are likewise unconstitutional on public university campuses, regardless of whether or not administrators believe that such restrictions would advance other values. Legislation affecting private colleges should avoid imposing the same obligations that are imposed on public campuses, since true diversity requires that private institutions be allowed to deviate and vary from the norm. What would be most helpful would be legislation that simply required private institutions to fulfill whatever promises they make in their catalogues and literature. Thus, if a private college promises intellectual diversity and academic freedom, it should be required to deliver it. FIRE is in favor of true disclosure and of private institutions living up to their promises and assurances, rather than of governmental efforts to dictate the values to which such institutions should be dedicated. If ABC College says that it is a liberal arts institution devoted to academic freedom, then it should deliver this or else be held accountable for breaking its contractual assurances to its students. Fraudulent inducement is not a part of academic freedom.
While any remedial action should be considered carefully and thoroughly, the cost of leaving things as they are is too high. One chilling example of how poorly free speech is understood and how little it is respected in higher education today is the phenomenon of newspaper thefts. For over a decade in at least five dozen documented instances, students have stolen and destroyed tens of thousands of copies of student-run newspapers on colleges and universities across the country in an effort to silence viewpoints with which they disagree. In some cases these newspapers were thrown out, and–in at least a half dozen cases–they were burned. I hope I do not need to remind you of the fate of societies of the previous century when they began burning books. In fact, this form of mob censorship has become so commonplace that this month the Berkeley City Council passed an ordinance making newspaper theft illegal. This was in part a response to an incident involving Berkeley’s current mayor, Tom Bates, who stole 1,000 copies of a student newspaper after it endorsed his opponent in the mayoral race. With those in power teaching the current generation these kinds of lessons about free speech, how can we expect them to defend their own basic rights when they are threatened? It would truly be a terrible thing to have a whole generation of students so unfamiliar with their basic liberties that they would not even know if they lost them.
Source: Greg Lukianoff, Is Intellectual Diversity an Endangered Species on America’s College Campuses, U.S. Senate Committee on Heath, Education, Labor and Pensions hearing, October 29, 2003.
Questions for Review
Please answer all of the following questions for review.
1. Define the notions of free speech, censorship, non-governmental challenges, self-regulated censorship, and self-censorship.
2. Define hate speech, speech codes, and internet neutrality.
3. Give the argument for free speech from democratic government.
4. Give the argument for free speech from the search for truth.
5. What is Mill’s position on free speech and wrong ideas?
6. Explain the expression “free market place of ideas”.
7. Give the argument for free speech from personal autonomy.
8. What is Plato’s argument for censorship regarding protecting children, and what does he say about Homer and Hesiod?
9. What is Plato’s argument for censorship regarding protecting society?
10. According to Feinberg, what are the four conditions for testing whether an offensive expression qualifies for censorship?
11. Explain the original intention of the first amendment to the constitution, and how the due process clause in the 14th amendment changed that intention?
12. Explain the clear and present danger doctrine, the fighting words doctrine, and the public figure doctrine.
13. Explain the Miller test for obscenity.
14. What are the criticisms of the three conservative arguments in favor of censorship?
15. What are the criticisms of the three liberal arguments against censorship?
[Reading 1: Against Speech Codes]
16. According to Lukianoff, how does FIRE define “speech code”?
17. According to Lukianoff, what are some examples of problematic speech codes?
18. According to Lukianoff, what are some of the negative effects of speech codes?
19. According to Lukianoff, what is a free speech zone, and what is so bad about it?
20. According to Lukianoff, what role should governments play in addressing the problem of speech codes?
Questions for Analysis
Please select only one question for analysis from those below and answer it.
1. The section on “Special Cases of Censorship” discusses several areas of expression that have been targets for censorship. Which of these cases deserves censorship the most, and which the least? Give your reasons.
2. In the section on “Arguments for Free Speech,” which of the three arguments presented there is the weakest, and why?
3. Explain the notion of the free marketplace of ideas, and then use an example to show whether it either is or is not an effective way to discover truth.
4. The three arguments are presented for censorship. Which is the weakest, and why?
5. Pick an example of an expressed idea that is offensive, and use Feinberg’s four-part test to determine if censorship of that idea is justifiable.
6. In the section on “Legal Limitations of Free Speech” there are five exceptions to constitutionally protected free speech, namely, those involving clear and present danger, national security risks, fighting words, defamation, and obscenity. If you could eliminate one of these five exceptions, which would it be and why?
7. Lukianoff describes some speech codes as attempts by college administrations to prevent unruly or embarrassing demonstrations. Might this be a justifiable rationale in some situations? Give an example and explain.