THE CASE FOR CENSORSHIP
Aug 30, 1999, Vol. 4, No. 47 • By DAVID LOWENTHAL
On July 21, a distinguished group of citizens released "An Appeal to Hollywood." Among the 56 signers were William Bennett, Jimmy Carter, Mario Cuomo, Richard John Neuhaus, Colin Powell, Norman Schwarzkopf, Elie Wiesel, and James Q. Wilson. Concerned about "an increasingly toxic popular culture" and spurred by the high-school shootings in Littleton, Colorado, these eminent Americans called on the producers and sponsors of mass entertainment to "take modest steps of self-restraint" to make television, movies, and music less violent and lewd. What they explicitly declined to recommend was government censorship.
The previous fall, the first of the signatories, Steve Allen, had formed an organization called Parents Television Council and taken out full-page ads across the country proclaiming, "TV Is Leading Children Down a Moral Sewer: How You and I Can Stop It." The council's object was to close up the sewer by putting heavy pressure on the sponsors of television shows. The July 21 appeal constitutes a significant further step in the same direction. It is impressive, and encouraging, to see so many who have served their country well, in so many walks of life, doff political partisanship and give united public voice to their dismay and their hope.
I joined Allen's council as soon as I saw his daring ad, but I did so without any confidence that his plan to influence sponsors would succeed. Nor am I sanguine about the "Appeal to Hollywood." There have been many such appeals before. Steadily, things have gotten worse. Hollywood, constituting one of the country's most powerful establishment industries, seems equally enamored of its profits and its artistic pretensions. There is no sign of its intending to respond to the fears of parents for their children and of citizens for the republic. At most, the industry, wrapping itself in the First Amendment, reshuffles its movie-rating labels and continues its descent. Far more effective than the appeal's polite request for "modest steps of self-restraint" by the industry would be strong, meaningful threats, followed by state and national legislation. In this more vigorous course, censorship has an important place.
The case for regulating the mass media today rests on several premises: that the mass media are the prime educational force in the country; that their effect is, by and large, pernicious -- running counter to the education of the young in schools, churches, and synagogues and to the qualities required of mature citizens in a civilized republic; and that government, and government alone, has a chance of blocking this descent into decadence. The argument to be overcome is that censorship is dangerous, ineffective, unconstitutional, and inconsistent with liberal democracy.
The mass media include television, the movies, and recordings, but the term can be extended to cover popular books and magazines and, now, the Internet as well. The present discussion concentrates on the first three media. There are a few people who regard television and the movies as mere entertainment. Their view is that what we see and hear with such frequency is like water off a duck's back: We are amused, moved, or entranced without being affected. Censorship is not for them. Those, however, who consider the influence of the mass media actual and malignant will seek some recourse. Censorship or, more broadly, regulation, is the needed recourse -- one we have been prevented from considering by a combination of Supreme Court enthusiasts and the mass media themselves.
As a nation we are concerned about pollution, about pure air and water, about every aspect of the physical environment, about the prevention and cure of disease in all its forms. Is there no such thing as moral pollution? Has our increasing awareness of the goods and evils of the body been bought at the cost of an increasing dullness regarding the goods and evils of the soul? Are we incapable of recognizing the debilitation that weakens or destroys those qualities that make us distinctively human?
That there is cause for concern about the media is recognized by thoughtful conservatives and liberals alike. Conservatives are especially sensitive to the sexual immorality the media purvey, liberals to the encouragement of violence. Both are right, as far as they go, but the full picture is even more alarming. Never before in the history of mankind have the moral restraints and aspirations necessary to the fullness of our nature, and to civilization itself, been subjected to so ubiquitous and persistent an assault. If our scientific learning and partisan ideologies keep us from seeing this -- from seeing that we are on the road to decadence and decline -- of what use are they?
Assuming that enough of the country can still recognize the base and the vicious for what they are, is there anything that can be done to rein in the corruption wrought by the mass media? What can we do to reverse the caninization of the human species occurring before our eyes and retreat from the barbarism it is spawning?
Let us recall some history. When Sir William Blackstone, from whom our Founding Fathers learned most of their law, pioneered the notion of the freedom of the press, his purpose was to free the press from the heavy hand of the censor. At the time, the press simply meant the printing press. Blackstone justified its emancipation from the censors, who were empowered to block the publication of offending material, not by insisting that such offenses go unpunished, but by affirming that they could be adequately punished after publication.
Blackstone never questioned what he regarded as a self-evident principle: that no one has a right to use words (or pictures) to inflict serious harm on others or on society. Blackstone called abuses of the press "libels," and among the types he listed were "immoral libels," the forerunner of obscenity. These punishable offenses were considered "license," not an exercise of liberty, and were never protected by the freedom of the press.
Starting near the end of World War I, Justices Oliver Wendell Holmes and Louis Brandeis steered the law away from Blackstone's understanding of press freedom and in the direction of John Stuart Mill's philosophy of extreme liberty. In cases involving left-wing attacks on the draft and on our whole system of government, these justices substituted their own "clear and present danger" test for the prevailing Blackstonian position that the press could not be lawfully used to encourage violence and lawlessness. The test meant that government had to wait until law-breaking was imminent before it could act against the use of the press to promote it. By the middle of the century, this new principle had gained acceptance on the Court for revolutionary speech and press and was beginning to extend the limits of sexual expression as well. It seemed to offer a more exact way of deciding when government could act against the misuse of the press. What it lacked was prudence.
Dangers can be real and still not offer "clear and present" threats to individuals. Is fanning the flames of selfish and irresponsible lust, as obscenity does, not dangerous to our society? How can we expect the sexes to treat each other with decency and respect, the very young to forbear from sexual intercourse, and the family to remain stable in mutual devotion if sex detached from any sense of responsibility and even from love is touted daily in theaters and on television screens? Is it unreasonable to believe that an important cause of the instability of the American family today, and of our enormous rate of illegitimacy, is the climate of sexual laxity encouraged by movie after movie, show after show?
From early in our history, obscenity has been a crime in every state in the nation, and this is perfectly consistent with the freedom of speech and of the press guaranteed in our state and federal constitutions. Obscenity has never been protected by the First Amendment. But starting in 1957 (with Roth v. United States), the Supreme Court's view of obscenity began to change. We need not review here the ins and outs of the Court's interpretations. The result, by 1973 (in Miller v. California), was to narrow the legal definition of obscenity to pornography, thus discouraging the prosecution of any appeal to lust short of the display of sexual organs and acts. Even the prosecution of pornography has been rendered dispirited: In our progressive age, enforcement of the laws against obscenity is out of fashion.
In recent years the Court has gone so far as to insist that "indecent" material be given its share of viewing hours on television. And, although the Court eventually decided the standard prohibition of obscenity must apply to the Internet, cyberspace has become an unequaled global showcase for pornography. A single illustration of how the Court's 1973 interpretation of obscenity works in practice tells it all. In the lower courts, the manifestly obscene lyrics of the rap group 2 Live Crew, with their explicit incitement to violence against women, were accorded First Amendment protection, in deference to their "serious value," attested to by so-called experts.
You don't have to be a member of the Christian Right to realize that something is wrong here. In a word, the Supreme Court, the law schools, and like-minded opinion leaders have replaced the thought of the Founders and Framers with a radical understanding of individual liberty, incoherently mixed with the morally corrosive relativism of the mid-twentieth century. Pressed by secular intellectuals to liberate ourselves from Victorian prudery, we have thrown off all restraints, imagining that we can satisfy all natural appetites while remaining civilized and free.
The mass media -- the movies, television, and recordings -- need to be regulated, and not only because of appeals to irresponsible lust. They have immersed us in violence as well, habituated us to the most extreme brutality, held it up as a model and surrounded us by images of hateful human types so memorable as to cause a psychological insecurity that is dangerous. The only answer is governmental regulation, if necessary prior to publication -- that is, censorship.
We must now face these questions: (a) Is not prior restraint, or censorship in the strict sense, banned by the very idea of the freedom of the press? Would censorship of the movies, television, and recordings be constitutional? (b) Can censorship be made responsible and consistent with the needs of republican government? Why should what we see and hear be determined by some faceless bureaucrat? Will censorship not be misused and abused by politicians? (c) Is censorship enough to correct the moral corruption that has already shown itself in our midst?
It is true that freedom of the press originally meant the elimination of censorship. But the abuses of "the press" as then understood -- books, pamphlets, handbills -- could be corrected by punishment subsequent to publication. The offending materials, which in any case circulated slowly, could be withdrawn from circulation. By contrast, the movies, television, and recordings can be "published" at once all over the country, to be seen and heard by millions, young and old alike. That is what makes them mass media. Furthermore, the visual and auditory appeal of drama and music gives them a power totally different from that of printed matter. Equating these media with the press in its exact sense is like calling atomic missiles artillery.
We cannot be sure that the first stout defenders of the press, like Blackstone and John Milton (who also favored post-publication punishment for abuses of the press) would make an exception for movies and television were they alive today. But their principle requires it, for they assume that serious harm to the public by the use of words or pictures is to be prohibited; the manner of accomplishing this is secondary. The harm caused by printed material can be minimized after publication, but the harm caused by movies and television programs shown even once can be widespread and serious.
As to our constitutional tradition, the Supreme Court has never closed the door to prior restraint in the case of movies, though it has (in Freedman v. Maryland, 1965, and Southeastern Promotions, Ltd. v. Conrad, 1975) imposed on state and local censorship boards procedural burdens so great as to render them inoperative. The Court has forgotten what Chief Justice Charles Evans Hughes said as far back as 1931, in a landmark case prohibiting the prior restraint of newspapers (Near v. Minnesota). He listed four specific abuses of the press in connection with which the First Amendment would allow even prior restraint. Notably, he stated that "the primary requirements of decency may be enforced against obscene publications." How much more would this exception allowing prior restraint apply to the powerful force the movies are today.
The case of television is different again. Broadcast stations or bands of airwaves are a public property allocated with conditions attached. In the Federal Communications Act of 1934, it was stipulated that programming had to be in the "public interest" -- a basic condition Congress failed to amplify on then or since. But the principle is there, ready to be spelled out in the future. If the conditions for obtaining and renewing licenses are made plain and then applied consistently, there should be little need for the prior screening of individual programs.
Who will do the censoring? In monarchical days of old, the censor was an individual appointed by the king. From his secret decisions there was no appeal. In our own experience, there were boards of censors as well as individual censors in many of our states and cities whose main business was to supervise movies and shows like burlesques. Even today their vestigial remains can be found here and there. But for the most part, they were driven out of existence in the 1970s and '80s not because they were suddenly deemed intrinsically unconstitutional, but because the Supreme Court placed increasing restrictions on them, at the same time that it reduced the scope of state authority in dealing with the harm done by the movies. In 1959, for example, a case came before the Court (Kingsley International Pictures Corp. v. Regents) involving the refusal of New York State's Board of Regents to allow the showing of the movie Lady Chatterley's Lover. The board maintained that the movie gave encouragement to adultery. Brandishing its Mill-derived version of the First Amendment, the Court countered that even such encouragement, like all "ideas," was protected by the freedom of the press.
Formerly the censors, often appointed, were relatively unknown individuals. Today, it should be possible to enlist some of our most distinguished citizens -- like those signing the July 21 "Appeal to Hollywood" -- to serve as censors, now that we realize, as before we did not, how central, rather than peripheral, this function really is. In our almost fastidious legal system, their decisions -- unlike those of the censors of old -- would be guided by law, open to inspection, and subject to review by higher courts. Could their power be abused? Of course it could. It could also be eluded by those who will seek every way they can to thrust their innovations on an unwitting public.
But a graver question is whether enough is left of our moral character and understanding as a nation to allow us to frame and apply laws that will curb the most baneful aspects of the mass media. No one knows. The picture of America we see on television is not necessarily an accurate depiction of our urban and rural heartlands. And while our moral corruption has other sources, including excessive wealth, the mass media, which propagate the ideas and images we use to picture ourselves, are the most obvious and most important. A sick man is often helped through his illness by his will to prevail, as well as by the measures taken to make him well. Recourse to a reasonable but rigorous system of censorship will signify that the country understands what has happened and is determined to survive as a civilized and free society.
As for the final complaint -- "I don't want anybody telling me what I can and can't see" -- the answer is simple: That is exactly our situation now, where a few hidden figures in movie studios and television networks, motivated primarily by profit, decide what will be available for our viewing. With few exceptions, the viewer is offered a variety of bad alternatives, whatever their technical wizardry, for inch by inch, yard by yard, the mass media have lowered the standards of their productions, appealing increasingly to animal appetites that, once released, give little quarter to the nobler elements of freedom and civilization.
The choice is clear: either a rigorous censorship of the mass media, in conformity with responsible republican government, with censors known to all and operating under law, or an accelerating descent into barbarism and the destruction, sooner or later, of free society itself.
David Lowenthal is professor emeritus of political science at Boston College. He is the author of No Liberty for License: The Forgotten Logic of the First Amendment (1997).