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Chapter 10 examines the spirit of liberty as expressed by Judge Learned Hand, and asks whether current and future generations will continue to revere and protect freedom of speech. Support for freedom of expression has long been part of the American character, and public opinion polls consistently have shown high levels of support for First Amendment protections, even in times of crisis. More recent trends, however, show declining levels of support and demands for the government to provide protection from “unsafe” speech. Among younger Americans, this has been illustrated by disinvitations of controversial campus speakers and demands for “trigger warnings” and “safe spaces.” Ugly demonstrations and deadly clashes in Charlottesville, Virginia, and Berkeley have heightened such demands. Even with these trends, overall support for free speech remains high, but the course of events illustrates that protections for free speech cannot rely on current political fashions.
Chapter 1 introduces the concept of the censor’s dilemma: the notion that censors in America may wield significant power for a limited time, but ultimately are undone by the principles of free expression embodied in the First Amendment. Because of this, reformers seek to avoid the label of “censor,” even when their goal is to suppress speech. The urge to censor comes from both the political left and the right, yet both sides claim that only their antagonists engage in censorship. Paradoxically, censors exude sanctimony and a sense of certainty, but cannot shake off the taint of illegitimacy in societies devoted to freedom of expression.
Floyd Abrams’ Foreword sets forth the premise of the book: that America has faced recurring episodes of censorship and that censors may be admired in their time, but that freedom of speech, as protected by the First Amendment, has flourished. For that reason, censors try to avoid being called censors.
Chapter 7 examines the mindset of Newton Minow, the Federal Communications Commission (FCC) chairman who summed up the regulator’s view of television by calling it a “vast wasteland.” Minow championed public interest regulation of the broadcast medium based on the theory that the electromagnetic spectrum is scarce and that the government must allocate broadcast licenses and regulate the content of programming. But the spectrum is no more scarce than any other economic good, and the events that led to federal control over broadcasting were contrived to extend government control over the medium. Minow and other like-minded regulators deny that this type of control is censorship, but their efforts caused diminished diversity in programming and dampened innovation. Further, the tenets of broadcast regulation were undermined as new technologies emerged, although that fact did not deter Minow and other like-minded regulators from advocating more government control. Since then, the law and the culture have moved on, rendering the positions that Minow espoused obsolete.
Chapter 5 chronicles the national panic against comic books that raged between 1948 and 1955. Led by prominent intellectuals, like Dr. Fredric Wertham and his book Seduction of the Innocent, the movement was marked by comic book burnings across the country, and resulted in congressional hearings designed to put pressure on the comic book industry. The movement did not lead to a change in the law, however, as First Amendment doctrine had progressed to the point that local ordinances were struck down when cases came before courts. Nevertheless, the political pressure led the industry to adopt a “voluntary” code enforced by the Comics Magazine Association of America that, for a time, devastated the comic book industry. Wertham’s scholarship eventually was discredited, and the comic book made a comeback as both an art form and a cultural influence.
Chapter 9 focuses on various theorists who make up the Anti-Free Speech Movement, starting with philosopher Herbert Marcuse. They suggest that the First Amendment has been interpreted too broadly to allow protection for speech they believe is intolerable, and that this should be reversed. The chapter examines those who have espoused critical race theory to develop arguments for suppressing hate speech, and feminists who advocate suppressing sexually oriented speech. The connection between these various theorists is that they argue that the First Amendment has gone too far, yet they vigorously deny that they support censorship. In doing so, they adopt the rhetoric and tactics designed by Anthony Comstock, Fredric Wertham, and Newton Minow before them. The chapter concludes that the purpose of the First Amendment is to block government from having the type of power these theorists advocate, and suggests that one way to preserve free speech is to use this list of characteristics as a means of identifying censors.
Chapter 6 explores efforts to censor popular music, focusing on the “porn rock” hearings in 1985 before the Senate Commerce Committee. The hearings resulted from the efforts of an influential group of Washington wives, most prominently Tipper Gore, called the Parents Music Resource Center, or PMRC. The hearings and related efforts were used to pressure the record industry into placing warning labels on record albums. The chapter examines related panics over rock ’n’ roll (including an FBI investigation of the song “Louie, Louie”) and rap music, as well as efforts to pass local laws regulating or banning such music. This culminated in the unsuccessful effort to prosecute the rap group 2 Live Crew for obscenity under Florida law. Ultimately, the censorship efforts failed, and the censors’ efforts only made the music they opposed more popular.
Chapter 3 examines Anthony Comstock’s legacy and the birth of the “censor’s dilemma.” Although no censor before or since has wielded such power or had the same level of influence as Comstock, his achievements were washed away by cultural and legal evolution. Even in his time, his crusades did as much to promote the popularity of “forbidden” works, and since his time, the profession of censor has been forever tarnished. The legal doctrine on which Comstock depended was reversed by the development of First Amendment law through the twentieth century, particularly the law of obscenity. To the extent that Comstock is remembered today, he is the subject of derision and scorn.
Chapter 2 follows the rise of Anthony Comstock from being a dry goods clerk and vigilante against all things he deemed immoral, to becoming the nation’s most prominent and powerful censor. He was responsible for enacting federal legislation banning obscene materials from the US Mail and served as a special agent for the Post Office, enforcing the law. He founded the New York Society for the Suppression of Vice, an anti-vice organization that was emulated in numerous other states. From this position, he waged a lifelong crusade against contraceptives, free love, free thought, literature, art, and everything that offended his Puritan sensibilities. The chapter describes the key events in his long career, including his rise to prominence, his prosecution of Victoria Woodhull for revealing Reverend Henry Ward Beecher’s affair with a parishioner, his various campaigns against free thought, art, and literature, and his prosecution of birth control advocates.
The Epilogue examines the state of free speech during the COVID-19 pandemic at a time when American politics is polarized and the state of public discourse is in shambles. Both sides claim victimhood and argue that the other side should be suppressed, illustrating the adage “free speech for me but not for thee.” Both sides even justify violence in support of their respective causes. But events of the past year reveal the danger of abandoning neutral principles when it comes to protecting speech. Lowering the legal barrier for what constitutes incitement may allow the prosecution of Donald Trump, but it would also put Black Lives Matter activists at risk. Safety can best be found in avoiding the mindset of the censor.
Chapter 8 explores the rise and fall of the FCC’s policy against broadcast indecency by following the exploits of anti-indecency crusader Brent Bozell, founder of the Parents Television Council (PTC). It traces the beginnings of the FCC’s policy in the early days of radio, and how it was transformed as courts began to develop First Amendment doctrine. It explains the birth of the FCC’s current indecency policy with its action against George Carlin’s “seven dirty words,” and how it was driven by political demands to get tough on broadcasters. This reached a crescendo because of the efforts of Bozell’s PTC and similar groups, who bombarded the FCC with spam email campaigns. Politicians responded by imposing skyrocketing fines based on an increasingly incoherent and confusing policy. The widespread chilling effect on broadcasters led courts to rein in the FCC’s authority in this area. Bozell and his fellow crusaders managed only to discredit themselves, to diminish the influence of their organizations, and to undermine FCC authority over broadcast content.