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The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma by Robert Corn-Revere
WHY WOULD SOMEONE become a censor? Why have people throughout history devoted themselves to banning books or restricting what other people can read or write or paint or see or say or teach?
In his entertaining, enlightening, and timely book, The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma, Robert Corn-Revere explores these and other intriguing questions by delving into the lives and work of five influential American advocates of censorship as well as a host of lesser censors. He presents vivid portraits of the Victorian era’s quintessential censor, Anthony Comstock, as well as Dr. Fredric Wertham, the psychiatrist who "stoked a national panic” over comic books; Newton Minow, who as chairman of the Federal Communications Commission sought to “homogenize broadcasting”; Tipper Gore, co-founder of the Parents Music Resource Center, which promoted parental advisories on record albums deemed too naughty for our youth; and Brent Bozell, founding president of the Parents Television Council, “an organization created to keep the world safe from fleeting expletives and wardrobe malfunctions.”
As Corn-Revere sees it, a “censor is one who seeks to exert control over the culture through law, based on the idea that he or she, speaking for the community, has a right to draw the boundary lines for speech.” The censor is convinced that “some forms of expression are so vile or dangerous that they should be restricted, or so valuable that they should be compelled.” Consequently, censors “claim the moral sanction to speak for the collective, either by enforcing ‘community standards’ against evil expression or by mandating speech that they believe serves the ‘public interest.’”
What all censors have in common is their unshakable conviction that they “know the truth, and must control the ideas or influences to which you may become exposed to protect you from falling into error (or sin)”; and the “truth” may be revealed to the censor “by whispers from god, by political theory, by popular vote, or by social science, but once it has been determined, the time for debate is over.”
But Corn-Revere, a leading First Amendment lawyer who has litigated scores of free speech cases, argued before the US Supreme Court, and obtained a posthumous pardon for the late comedian Lenny Bruce from the governor of New York, is also making a more profound point by introducing what he calls the “censor’s dilemma.” Based on his examination of the history of censorship, he makes a convincing — albeit optimistic — case about the censors profiled in his book: “[W]hile destructive to freedom in their time, they had no permanent impact in the United States.” Or, more accurately, “they didn’t achieve their intended impact.” It is the “censor’s dilemma” that “in part because the arbiters of propriety wish to suppress or supplant what the public embraces, they are the ultimate counterculture warriors and therefore doomed, in the end, to failure and disrepute.” But actually, “a more fundamental reason for the censor’s harsh fate is that his [or her] very existence contradicts the arc of history among societies that value freedom.”
Corn-Revere is at his very best in vividly describing the quintessential censor Anthony Comstock (1844–1915), who became so identified with censorship that any form of excessive, moralistic, and self-righteous suppression of literature and art has come to be known as “Comstockery.” Corn-Revere calls him “the nation’s first professional anti-vice crusader,” who set the standard for all censors who followed in his footsteps by claiming “moral superiority — characterizing the speech they would restrict as distasteful, trivial, valueless, or downright harmful.”
In late 1872, 28-year-old Comstock, “a dry goods salesman and volunteer for a special project of the New York Young Men’s Christian Association (YMCA),” headed to Washington, DC, to lobby Congress to pass a law to strengthen the federal prohibition against mailing obscene or lewd matter. He came prepared with what he called his “Chamber of Horrors” — contraceptive “rubber goods,” racy playing cards, filthy pictures, and steamy novels. It becomes immediately apparent that Comstock was not only targeting words and pictures but contraception and abortion itself, setting him on a collision course with feminists such as Margaret Sanger.
Comstock succeeded. On March 3, 1873, Congress passed what would forever be known as the “Comstock Law.” It was everything he had hoped for.
To reward Comstock, Congress designated him a “special agent” of the Post Office Department, vested with the power to make arrests and seize offensive items.
But Comstock was no crazy outlier. The New York Times declared that Congress had “powerfully sustained the cause of morality” by going after the “wretches who are debauching the youth of the country and murdering women and unborn babies.” During his first 10 months as a special agent, Comstock “traveled 23,000 miles in search of contraband. By December 1873 he had made fifty-five arrests and obtained twenty convictions under the new federal law.” He had “seized and destroyed 134,000 pounds of books ‘of an improper character,’ as well as 194,000 obscene pictures, 14,200 pounds of stereotype plates, 5,500 indecent playing cards, 60,300 ‘rubber articles,’ and 3,150 boxes of pills and powders.” In 1873, “he arrested thirty-five people for advocating contraception and secured twenty-five convictions.” Near the end of his 42-year career, he “claimed to have convicted enough people ‘to fill a passenger train of sixty-one coaches containing sixty passengers each,’” and destroyed “160 tons of literature and 4 million pictures.” Being reminded of Comstock’s early and active role in the anti-abortion movement takes on disturbing relevance as the Supreme Court is poised to overturn Roe v. Wade.
The impact of Comstock’s lifelong moral crusade went far beyond the federal law that made him famous. By 1920, all but two state legislatures had passed “mini-Comstock” laws. Anti-vice societies “sprang up across the country.” The first was the New York Society for the Suppression of Vice, established in May 1873, with Comstock as the founding secretary. When New York adopted its own “mini-Comstock” law, the legislation authorized the vice society to be deputized with the power to make arrests.
The Supreme Court had yet to address the extent of First Amendment protection for sexually explicit material, let alone constitutional protection for contraception and abortion. In this era, American law generally followed the British Hicklin rule, which defined obscenity as anything that “depraves and corrupts those whose minds are open to such immoral influences and into whose hands a publication of this sort might fall,” based on a single tainted word or passage without regard for a book’s literary merit or prevailing community standards. Such a subjective and elastic test gave Comstock free rein. “He viewed his mandate to stamp out ‘sin’ quite broadly to include all that he saw as ‘ungodly.’”
If there was one individual who personified everything Comstock hated, it was Victoria Woodhull, a twice-divorced, “radical firebrand who championed socialism, spiritualism, labor reform, the end of the death penalty, and total emancipation of women.” In 1868, she and her sister, Tennessee Clafin, became the first women stockbrokers on Wall Street; in 1872, she was a candidate for president on the Equal Rights ticket; and in 1871, she was the first woman to testify before Congress, advocating for women’s suffrage.
The sisters disseminated their views in their own tabloid, the Woodhull and Clafin Weekly. The November 1872 issue carried a sensational story about a scandalous affair “between the renowned pastor of the Plymouth Congregationalist Church, Henry Ward Beecher,” and the wife of his close friend and parishioner, and a story exposing a tale of debauchery about a prominent businessman accused of seducing two underage girls. Comstock personally joined federal marshals to see that the sisters were arrested and sent to jail, “where they languished for weeks.” Federal authorities seized their printing press and office equipment and destroyed 3,000 copies of the Weekly, despite the fact that eventually a judge dismissed the charges. Regardless of the outcome, Comstock had exacted punishment against the sisters, but it came at a price, as the public and the press began to see the toll that Comstock’s moralistic persecution was taking. The New York Sunday Mercury called the prosecution a “mockery,” and another newspaper opined that liberty of the press “is ours no longer.”
Corn-Revere’s lively and detailed account of Comstock’s monomaniacal crusade is filled with appalling stories like these, as women and men were relentlessly prosecuted for advocating free thought and free love, questioning the strictures of marriage, and demanding equal rights for women. Since Comstock was obsessed with anything remotely connected to sex, he actively pursued medical information because, by his twisted logic, knowledge of the human body and its workings could inspire impure thoughts. He prosecuted a popular marriage manual because it “dealt with sexual anatomy,” won a conviction of a doctor who wrote about sexual diseases (despite the fact that the US attorney “found nothing amiss”), and won another conviction against a doctor who mailed a copy of a pamphlet describing four types of birth control devices in response to a “decoy letter” sent by Comstock himself. At trial, the doctor was not allowed to enter the pamphlet into evidence.
Comstock’s final case surrounded pioneering feminist Margaret Sanger. Corn Revere writes,
The journal was dedicated to the emancipation of women and declared, “No Gods or Masters.” Comstock convinced the postmaster general to declare the journal obscene and unmailable. He then got a grand jury indictment against Sanger not only for publishing “indecent” articles but also for incitement to murder and riot. The first issue of The Woman Rebel was suppressed and five other issues were confiscated. Sanger ignored the indictment arguing the law was being enforced “to destroy the liberty of conscience and thought in matters of religion and against the freedom of the press.” She then wrote a new pamphlet, Family Limitation. She distributed 100,000 copies to factories and mines. Comstock decried the pamphlet as “contrary not only to the law of the State, but to the law of God.” Before he could arrest her, Sanger fled to England using a Canadian passport.
Undaunted, Comstock arrested Sanger’s husband, William, on charges that Family Limitation violated the law. William defended himself but the outcome of trial before a three-judge panel sitting without a jury was a foregone conclusion. One judge called the pamphlet “awful,” saying that “[i]f some of these women who go around advocating Women Suffrage would go around and advocate women having babies, they would be rendering society a greater service.”
The court denied William permission to mount a defense based on freedom of speech and found Family Limitation “indecent, immoral, and a menace to society.” He was sentenced to $150 or 30 days in jail. One woman interviewed at the courthouse told a reporter she had circulated many copies to classmates and that further efforts to stop circulation “would be futile” for “as fast as one circulator was arrested[,] another would step forward and take his place.” The day after the trial ended, Comstock took to his bed with acute pneumonia. He lived another 10 days and died on September 21, 1915.
Because Corn-Revere sees Comstock as the prototypical American censor against whom all the rest will be judged, he devotes a full chapter to assessing Comstock’s legacy. He asks: “Would anyone suggest that American society embraces the Victorian values that Anthony Comstock devoted his life and prodigious energy to preserving?” And he responds with a firm, “Hardly.” But now of course, with the imminent demise of Roe and the rise of the anti-LGBTQ movement, one cannot be blamed for questioning his confidence.
Comstock has become a prime example of how a democratic society should not conduct itself when it comes to the appropriate role the government should play in how people express themselves on matters of sex, marriage, and lifestyle. Corn-Revere suggests that Comstock would be left “aghast and sputtering” by Justice Anthony Kennedy’s expansive view of constitutional rights expressed in his majority opinion in the Supreme Court’s 2015 opinion in Obergefell v. Hodges striking down state restrictions on same-sex marriage. Contrary to Comstock’s cramped view of the autonomy of the individual, Kennedy held that the Founders “entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” But again, we have to ask whether Obergefell will be on the chopping block in the hands of the current Supreme Court super-majority.
H. L. Mencken rendered a severe verdict on Comstock’s “gargantuan endeavor” by calling him “one of the national clowns” and his cause “one of the national jokes,” all of which “liberated American letters from the blight of Puritanism.” As Corn-Revere sees it, Comstock’s curse was worse than just being seen as a buffoon. His
Corn-Revere traces how opposition to Comstock in 1902 led to the founding of the Free Speech League (a “forerunner of the ACLU”), “the first organization in American history to demonstrate a principled commitment to free expression for all viewpoints on all subjects.” More robust protection for free speech began to inform judicial opinions, most prominently a series of federal court decisions in the 1930s holding that James Joyce’s masterpiece Ulysses could not be excluded from the United States under the Tariff Act.
Yet, as Corn-Revere warns, “the ghost of Anthony Comstock lingers.”
From the late 1940s to the mid-1950s, the United States was gripped by a new censorship crusade against what the literary critic for the Chicago Daily News, in a column entitled “A National Disgrace,” called “pulp-paper nightmares” that would lead to “a cultural slaughter of the innocents.” Comic books. As Corn-Revere notes, “Today it is difficult to appreciate the extent to which comic books took America by storm beginning in the late 1930s and early 1940s. […] By 1941, 30 different comic book publishers churned out 15 to 18 million books each month and had a projected readership that topped 60 million.” By the middle of World War II, newsstand sales “rose to 25 million copies a month,” and in the following decade the number “sold or traded each month reached 75 million. At the time, it was estimated that comic books were read by 91 to 95 percent of children between the ages of six and eleven.”
The concern over comics was focused on “their supposed contribution to juvenile delinquency.” Enter Dr. Fredric Wertham, whom Corn-Revere calls “Comstock in miniature.” But unlike Comstock, Wertham was a man of science, “a social progressive who championed civil rights and racial integration.” One admiring biographer called him “a traditional left-wing European intellectual” and “a card-carrying member of the liberal intelligentsia.” No doubt, Corn-Revere chose him to illustrate his key premise that censors come in all shapes and sizes, across the political spectrum.
Wertham grabbed public attention by condemning comics in popular publications such the Saturday Review of Books and Reader’s Digest, where, according to Corn-Revere, he wrote articles “filled with lurid illustrations and florid descriptions of comic book content, unsupported and categorical conclusions about their effects, anecdotes in the place of data or research, ad hominem attacks on anyone who doubted him, and unabashed admiration for public burnings of comic books.” In short, Wertham was “channeling his inner Comstock.” He was quoted in an article in the March 1948 issue of Collier’s magazine entitled “Horror in the Nursery” insisting that the “time has come to legislate these books off the newsstands and out of the candy stores.”
Within a few months, the Los Angeles Board of Supervisors had banned the sale to minors of comic books that featured accounts of crimes from mayhem to murder. But the Los Angeles Superior Court swiftly struck down the ordinance, citing the US Supreme Court decision in Winters v. New York, which invalidated an 1884 law (enacted at Comstock’s urging) prohibiting publications that featured “pictures and stories of deeds of bloodshed, lust or crime.” The Court held that the “line between the informing and the entertaining is too elusive for the protection of that basic right. […] What is one man’s amusement teaches another doctrine.” Although the Court saw “nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.”
But these rulings did little to deter Wertham and the growing movement to censor comic books. Eventually at least 50 US cities “would attempt to regulate the sale of comics.” Often, in an attempt to avoid judicial review, local police and prosecutors used unofficial bullying tactics, such as circulating blacklists or establishing “literature commissions,” in order “to identify suspect works.”
Meanwhile, Congress couldn’t resist getting on the bandwagon. “[B]etween 1950 and 1954, multiple congressional committees” spent precious legislative time and effort investigating the threat to our youngsters posed by comic books. The first hearings were chaired by Senator Estes Kefauver, “a New Deal Democrat from Tennessee who won fame investigating organized crime in some of the first-ever televised congressional hearings.”
After the committee listened to hundreds of witnesses, including juvenile court judges, probation officers, court psychiatrists, social workers, comic book publishers, and public officials, including FBI Director J. Edgar Hoover, its final report in November 1950 found “no direct connection between the comic books dealing with crime and juvenile delinquency.”
For reasons unexplained — at one point he claimed he had inadequate time to prepare because he was on vacation — Wertham had not submitted testimony to the Kefauver committee, and he complained that this was the reason for the disappointing outcome. He kept up his campaign, and in April 1954 he published Seduction of the Innocent, which the publisher touted as “the result of seven years of scientific investigation.” Instead, Corn-Revere describes it as “a long-form, first-person screed denouncing comic books, inactive legislators, misguided judges, bought-off psychologists, and anyone who dared disagree with him.” The “science” was “nothing more than a series of descriptions of salacious comic book stories (including some illustrations), anecdotal accounts of counseling sessions with patients, and Wertham’s personal opinions presented as indisputable scientific fact.”
In 2010, Carol Tilley, a professor of library and information science, reviewed Wertham’s papers and found that he had “manipulated, overstated, compromised, and fabricated evidence.” He had
But that analysis had not been done in the early 1950s. Wertham was so convincing that in 1954, “three-quarters of the American public believed that comic books caused juvenile delinquency.” That year, another congressional hearing was held and Wertham was the “star witness.” Wearing a white hospital coat, he testified that his book Seduction of the Innocent was the product of “a sober, painstaking, laborious clinical study” that furnished “incontrovertible evidence of the pernicious influences on youth of crime comic books.” He was especially contemptuous of Superman as “particularly injurious to the ethical development of children.” As committee members fawned over him, Wertham reached rhetorical excesses, declaring that “Hitler was a beginner compared to the comic-book industry.”
The committee issued its final report in 1955. It adopted Wertham’s tone of condemnation but concluded that juvenile delinquency has many causes. It rejected any “proposal for censorship” because that would be “totally out of keeping with our basic American concepts of a free press operating in a free land for a free people.” Instead, “it endorsed a strict system of self-regulation.”
Breathing a collective sigh of relief over avoiding federal regulation, the comic book industry promptly formed the Comics Magazine Association of America (CMAA). All but three of the top comic book publishers became members. Within a few months, CMAA announced that all members had agreed to submit their comics in advance to CMAA censors to obtain the coveted Seal of Approval, based on 41 requirements. For example, comics could not use terms like “horror” or “terror” in their titles; “zombies, vampires, cannibals, and werewolves were banned”; public officials could not be “portrayed disrespectfully”; love stories must portray “the sanctity of marriage”; and comics “should foster respect for parents, the moral code, and honorable behavior.”
CMAA soon announced that it had “screened 285 comic books and rejected 126 stories and 5,656 individual drawings.” For Corn-Revere, the code “accomplished what law could not — it had a broadly chilling effect industrywide. […] Although not entirely due to the code, [by 1955] the number of comic book titles published dropped 40 percent,” and “[m]ore than 800 comic book artists, writers, and associated employees lost their jobs.”
But Wertham wasn’t satisfied. He claimed that Kefauver and his committee had “whitewashed the crime comic book industry” and the CMAA Code was a “smokescreen.” While proclaiming to the Senate, “I detest censorship,” he argued that “freedom to publish comics has nothing to do with civil liberties.” In true Orwellian fashion, he added: “Leaving everything to the individual is actually not democracy; it is anarchy.”
Wertham died in 1981, and his obituary in The New York Times treats the last 25 years of his life as almost “an afterthought.” Corn-Revere assesses Wertham’s legacy much the same as Comstock’s. While his activism had “an undeniable impact” ushering in “a restrictive regime of industry self-regulation” that “wrecked businesses and destroyed lives,” by the mid-1960s banned themes in comics reemerged in the underground comix movement, such as Robert Crumb’s Zap Comix and Fritz the Cat. By the 1970s, Marvel made a comeback with its superheroes. It now posts grosses of $17.5 billion from movies featuring its iconic comic book characters. Graphic novels began to appear in the 1980s such as Art Spiegelman’s Maus, and scholarly journals and conferences abound.
“Wertham’s failure could not be more complete,” Corn-Revere writes. “Whether measured in terms of cultural influence, academic acceptance, or law, the medium he sought to crush emerged triumphant.”
(Cautionary footnote: This year, censors in Tennessee banned Maus.)
Undeterred in its mission to monitor the entertainment habits of the American people — this time it was music — on September 19, 1985, the US Senate, led by Senator John C. Danforth, “an ordained Episcopal priest (and heir to the Ralston Purina pet food fortune),” convened a hearing on what critics bemoaned was a “wave of [rock] music containing explicit lyrics about sex, violence, fetishes, and references to the occult.” The hearings had some influential names, including “notable Washington wives […] Tipper Gore, then-wife of then-Senator Al Gore, and Susan Baker, wife of James A, Baker, who had served as President Ronald Reagan’s Chief of Staff and was at the time his Treasury Secretary.” The two women had recently formed the Parents Music Resource Center (PMRC) with the goal of persuading record companies to use warning labels, “establish an industry monitoring board, and to get the industry to practice self-restraint.”
Although PMRC and the Senate committee disavowed any attempt at “censorship” (a denial mentioned at least 25 times during the hearing), Corn-Revere shows how “the interplay of Washington politics and news coverage of this circus-like event showed it to be a near perfect blend of Comstock’s playbook with the censor’s dilemma.” This was captured best by another witness at the hearing: Frank Zappa of the Mothers of Invention. Zappa called the scene a recipe for censorship “whipped up like an instant pudding by ‘the wives of Big Brother.’” He was prescient.
Corn-Revere sees the 1985 hearings as yet another periodic “moral panic” in the history of popular music in America. In 1899, Ragtime music was castigated as so “vulgar, filthy and suggestive” that it should be “suppressed by press and pulpit.” In 1914, the Musical Observer asked readers to “take a united stand against the Ragtime Evil as we would against bad literature.” In 1933, a Washington State congressman introduced a bill to ban jazz music because “our people are becoming dangerously demented, confused, distracted or bewildered.” Offenders who were “jazzily intoxicated” could be sent to an insane asylum. In 1940, NBC banned 140 songs from the radio because they allegedly encouraged “disrespect for virginity, mocked marriage, and encouraged sexual promiscuity.” Duke Ellington’s “The Mooche” was “blamed for inciting rape, and only the instrumental version of Cole Porter’s ‘Love for Sale’ could be aired.” In the mid-1950s, police officials in Connecticut, New Jersey, Maryland, Pennsylvania, Rhode Island, and other states “blamed juvenile delinquency and general unrest on rock.” In 1955, a Los Angeles Times article “described rock as ‘a violent, harsh type of music that parents feel incites teenagers to do all sorts of crazy things.’” In 1959, Minneapolis “banned a show hosted by Dick Clark to protect ‘the peace and well-being of the city.’” And cities across the country banned rock concerts. (Corn-Revere’s tale of the bizarre attempts to censor the song “Louie Louie” is both comical and appalling.)
Despite Tipper Gore and Susan Baker’s assurances they were only seeking “voluntary” warning labels, by 1990 the appetite for government regulations had grown, and mandatory record labeling was proposed in 19 states. But by then the tide was already turning. In preparation for Al Gore’s run for president in 1988, he and Tipper were calling the 1985 hearing “a mistake” that “sent the wrong message.” Yet again, Corn-Revere observes that “[m]uch as with Comstock’s legacy, the efforts of the would-be music censors became the subject of parody and their censorship turned out to be great advertising for the taboo material.” George Carlin and a group of rap artists each released albums titled Parental Advisory: Explicit Lyrics. “Atlantic Records reported it received orders for more than a million copies of the rap album even before the title was released.”
Corn-Revere concludes that “after all the moral panics over ragtime, jazz, rock, and rap, we live in a time when rock has gone classic, rap is mainstream, and kids have access to it all on demand on their portable devices. Yet, somehow, civilization has not come to an end.”
Corn-Revere next turns to the medium of television, and here his target is Newton Minow, whom President John F. Kennedy appointed chair of the Federal Communications Commission. Minow immediately made headlines in May 1961 by famously calling TV a “vast wasteland.” But Minow was not just another media critic. He was in charge of a vast federal agency with the power to grant, deny, or suspend the licenses of every television and radio station in the country. In Corn-Revere’s description, he comes across as a well-meaning benevolent would-be censor who genuinely believed he could use the power of the FCC to improve what the public heard on the radio and saw on television.
The creation of the FCC and its regulatory grip on broadcasting developed at a time when new technology had yet to gain First Amendment protection. In 1915, the Supreme Court held that “the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit, like other spectacles, not to be regarded […] as part of the press of the country or as organs of public opinion.” Congress began regulating radio in 1927 through the Federal Radio Commission (FRC). In 1932, a federal appeals court upheld the revocation of the license for radio station KGEF for broadcasting programs hosted by the Reverend “Fighting Bob” Shuler during which he accused the mayor, police chief, and district attorney of corruption. The court saw no First Amendment problem with the FRC revoking the license because radio was a mere “instrumentality of commerce” and the broadcasts were “sensational.”
The Communications Act of 1934 was passed to replace the Federal Radio Commission with the Federal Communications Commission. The new agency’s authority included television, and the legislation empowered “the FCC to adopt rules to further ‘the public interest, convenience, and necessity.’” This vague and elastic standard, which would never hold up if applied to books, newspapers, and other print publications, equipped the FCC with broad authority which it has wielded to this day. Corn-Revere traces the battles that have ensued over the “family viewing policy” in the mid-1970s and the “fairness doctrine” in the 1980s. Again and again, broadcasting has been treated as a second-class citizen when it comes to freedom of the press, often on the grounds that the government could regulate television and radio because they were “unique” and “scarce” methods of communications.
In Corn-Revere’s view, “FCC meddling in programming quality and promotion of ‘family viewing’ dampened creativity and resulted in blander programming,” and “rules to ensure news ‘fairness’ didn’t improve broadcast journalism and provided government officials with a weapon they abused to silence critical voices.” Both policies were challenged in court and eventually withdrawn by the FCC.
Minow has not “suffered the same ridicule that dogged Anthony Comstock,” but Corn-Revere argues that “the type of content regulation he advocated failed to achieve its objectives and is fading from relevance. As is so often the case, the intended subject of censorship eventually prevails and even flourishes, while the would-be censor is destined for obscurity.”
“If ever there were a spiritual heir to Anthony Comstock it is Leo Brent Bozell, III.” Bozell worked for the National Conservative Political Action Committee until he founded the Media Research Center in 1987 to “expose and neutralize the propaganda arm of the Left: the national news media.” In 1995, he founded the Parents Television Council (PTC), which is the focus of Corn-Revere’s examination.
While Bozell “would never personally exercise direct government authority,” he spent his career “advocating government restrictions and pulling levers of power behind the scenes.” “The raison d’être of PTC,” Corn-Revere writes, “was to foster increased FCC enforcement of the federal criminal law prohibiting indecency.” Its 2006 annual report boasted that PTC members “filed petitions with the FCC to revoke the licenses of seventeen television stations” on grounds of “indecency” which if successful would result “in the stations being abruptly put out of business.”
The Radio Act of 1927 and the subsequent Communications Act of 1934 both prohibited “obscene, indecent, or profane language.” In 1948, the US Criminal Code incorporated this prohibition and made a violation punishable by a fine, imprisonment for not more than two years, or both. In 1937, NBC broadcast a radio sketch in which “sultry actress Mae West” seduces the serpent in the Garden of Eden to give her the forbidden fruit so she and Adam can “leave this dump.” Later she invites Charlie McCarthy, “the wise-cracking alter ego of ventriloquist Edgar Bergen,” to come home with her, telling him, “I’ll let you play in my wood pile.” The Catholic Legion of Decency launched a campaign of outrage, and the FCC opened an investigation. The commission concluded that the sketch was “vulgar and indecent, and against all proprieties,” but did not issue any formal sanctions. Instead, the chair of the FCC warned that the broadcast would be held against the 59 NBC affiliates when their licenses were up for renewal unless “they aired nothing else that was offensive.” The incident did nothing to define the vague indecency standard but had such a chilling effect that Mae West was kept off radio for the next 14 years. This is the pernicious impact when government intimidates by threat rather than by law or regulation which can be challenged in court.
In March 1973, the FCC issued a “notice of inquiry” against eight radio stations due to alleged “indecency.” Shortly thereafter, “the FCC issued a $2,000 notice of apparent liability against Sonderling Broadcasting Company for airing a radio program called Femme Forum (the top-rated show in the Chicago radio market), which it found ‘titillating and pandering.’” Sonderling promptly paid the fine, “but an ACLU affiliate, the Illinois Citizens Committee for Broadcasting, appealed on behalf of viewers and listeners.” The majority rejected the appeal, but still: David Bazelon, chief judge of the DC Circuit described the episode as “a classic example illustrating a whole range of ‘raised eyebrow’ tactics.”
After tracing the continuing court battles over the “indecency” standard, including George Carlin’s “Filthy Words” controversy and the rise of “shock jocks” like Howard Stern in the 1980s, Corn-Revere finds Brent Bozell at it again fueling outrage this time triggered by a live telecast of the 2003 Golden Globes Awards on NBC. “An overly exuberant Bono” surprised everyone by blurting out that it was “fucking brilliant” that his band “U2 was being honored.” Within days, “PTC was responsible for flooding the FCC with 18,000 complaints,” using PTC’s “first-ever web-driven complaint form,” which contained hundreds of entries for foul language from “ass” to “whore.” The complaint forms were already filled out. All an individual had to do was insert his or her name and address — even if the “complainant” had never seen the show. According to the FCC, while it only received 111 indecency complaints in 2000 and 346 in 2001, the numbers jumped to 1,068,802 in 2004. That year, 99.9 percent of all indecency complaints were generated by PTC. In 2004 alone, proposed fines and “settlement” payments amounted to nearly $8 million — “almost four times the total of all proposed fines in the previous ten years.” In 2006, Congress boosted the fines tenfold. Under the new law,” the aggregate fine to a network for a single, fleeting instance of indecent speech could approach $100 million.”
But the FCC rulings in particular cases were maddeningly arbitrary and inconsistent, leaving broadcasters to guess at what was prohibited. Of course, this is exactly the goal of any censorship regime: a chilling effect resulting in self-censorship, which is final, complete, and never sees the light of day. The FCC “found that the isolated use of the word ‘bullshit’ in episodes of ABC’s NYPD Blue was indecent, but the use of the words ‘dick’ and ‘dickhead’ were not.” The words “fuck” and “shit” in the Martin Scorsese documentary The Blues: Godfathers and Sons were indecent but the same words in an unedited broadcast of Saving Private Ryan were not.
Corn-Revere clearly explains the tangled court challenges to the FCC’s renewed enforcement spanning six years. Eventually (spoiler alert), the FCC lost. Most prominently, the FCC “had to write a $550,000 refund check to CBS” over Janet Jackson’s “wardrobe malfunction” at the 2004 Super Bowl halftime show.
Bozell must have seen it coming. In 2007, he stepped down as president of PTC. “A 2010 New York Times article described PTC as an organization ‘on the defensive,’ observing: ‘These are difficult times for the indecency police.’” The organization has not initiated a mass complaint campaign for indecency since 2015. For Corn-Revere, “Bozell’s legacy will be that his activism resulted in neutering the FCC’s indecency standard and placing it on the path to extinction.” Like so many censors and would-be censors before him, neither “Bozell’s continuing activism nor PTC can hold back a changing culture any more than King Canute could hold back the tides. But their efforts laid bare the fragility of the FCC indecency standard as a weapon in the culture wars.” Corn-Revere predicts that if a case reached the Supreme Court which squarely posed a First Amendment challenge to the indecency standard, “it would find the law to be unconstitutional.”
Corn-Revere ends his book with two cautionary chapters expressing genuine concern that today one of the most serious threats of censorship is not coming from conservative bluenoses but from progressive academics, whom he sees as part of a new anti-free-speech movement.
Corn-Revere traces this movement back to Herbert Marcuse, a Marxist philosopher of the mid-20th century, who “is to political discourse what Anthony Comstock was to cultural purity.” In his signature 1965 essay “Repressive Tolerance,” Marcuse argued that establishing true democracy “may require apparently undemocratic means,” in which “certain things cannot be said, certain ideas cannot be expressed, certain policies cannot be proposed, certain behaviors cannot be permitted without making tolerance an instrument for the continuation of servitude.”
According to Corn-Revere, “Marcuse’s ideas found expression in campus speech codes and some local ordinances adopted in the late 1980s and early 1990s,” promoted by academic writers such as Richard Delgado, Mari Matsuda, and Charles R. Lawrence III in the field of race and gender and Catherine MacKinnon in the area of sexually explicit material. Generally, they argued that free speech did not protect Nazis, Klansmen, racists, or anyone whose speech degraded or humiliated others. In 1990, in his provocative book There’s No Such Thing as Free Speech, and It’s a Good Thing, Too, Professor Stanley Fish defended censorship, if done for the “right” reasons or by the “right” people. Corn-Revere explains how the courts consistently invalidated the campus speech codes and local ordinances which had proliferated during these years. One court observed that a regulation which prohibited “discriminatory comments, epithets, or other expressive behavior,” was too vague, overly broad, and did not fall within the First Amendment exception for “fighting words.” Another court held that a ban on “discriminatory harassment” failed to provide “any principled way to distinguish sanctionable from protected speech.”
Corn-Revere regrets that long-standing support for free expression has begun to wane in recent years. In his words, from
But that has begun to change.
Corn-Revere points out that Cornell University Law Professor Steve Shiffrin believes that judges “have turned free speech into a fetish.” Rather than impose strict First Amendment scrutiny on expression, Shiffrin argues courts should instead “engage in an ad hoc balancing of interests and should feel free to expand the categories of unprotected speech.” In his 2018 article “Can Free Speech Be Progressive?,” Professor Louis Michael Seidman answers his own question with an emphatic “no.” He claims that modern free speech doctrine “is dominated by obsession with government restrictions on speech and with government interference with listener autonomy.” It’s not clear why robust enforcement of the First Amendment’s strict admonition that “Congress shall make no law […] abridging the freedom of speech, or of the press” (which has since been interpreted to apply to all levels of government) deserves to be belittled as a “fetish” or an “obsession with government restriction” when that’s exactly what the First Amendment says: we must prevent the government from restricting speech and interfering with the autonomy of speakers and listeners, regardless of what they have to say.
Corn-Revere counters with arguments from several free speech advocates. One of the most convincing refutations to calls to prohibit hate speech was made by Aryeh Neier, former executive director of Human Rights Watch. He was born in Nazi Germany and became a refugee when his family fled in 1939 when he was only two years old. He was also national director of the ACLU at the time of the Skokie controversy, when the ACLU defended the right of American Nazis to conduct a nonviolent march in that predominantly Jewish community. What he wrote in his book Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom (1979) is worth quoting in full:
Neier’s powerful and compassionate comments reflect the words of the Seventh Circuit Court of Appeals in its decision in Collin v. Smith, upholding the right of the Nazis to march in Skokie:
Corn-Revere also turns to Professor Nadine Strossen, former national ACLU president (and herself the daughter of a Holocaust survivor), who wrote an entire book on this subject, HATE: Why We Should Resist It with Free Speech, Not Censorship. “Strossen explains how traditional free speech principles that include a strict requirement of content neutrality are essential to protecting vulnerable members of the population and members of minority groups.” It is only through strict adherence “to free speech principles — not politics — that such groups can be protected, and she marshals numerous examples, both in the USA and abroad, confirming that laws restricting speech inevitably are used to punish the very groups they ostensibly were enacted to protect.”
Corn-Revere points out a key fact that the new progressive anti-free-speech movement overlooks at its peril: “In democracies, where laws are made and enforced by the majority. […] And, […] minorities simply have to trust that the majorities in charge will protect them” — unless the courts remain free to invoke the very content-neutral free speech principles which these progressive academics are seeking to dismantle.
And then there’s the ever-present question conveniently ignored by anti-free-speech academics: Who is on the committee that decides what new speech restrictions to impose and how to define them? Do we trust the same Republican state legislatures or local school boards that are already banning books and prohibiting the teaching of The 1619 Project and critical race theory? It’s one thing to write law review articles and books urging new limitations on offensive and hateful speech. It’s a far different matter to empower government authorities at federal, state, and local levels, with civil, criminal, and administrative enforcement powers, or college administrators (with or without faculty input) with the power to grant, deny, or revoke tenure, to decide what ideas can be spoken, written, or taught.
Progressive anti-free-speech advocates repeatedly argue that certain ideas about race such as The Bell Curve or the purported “benefits” of colonialism and slavery, or the wisdom of Brown v. Board or Education, are no longer debatable and should never be discussed in a college classroom or any extramural settings, on pain of disciplinary punishment. But every year new students arrive at college. Many have never heard of Charles Murray but nonetheless carry around inherited notions of racial inferiority. Ideas that have long been discredited by the rest of us need to be discredited anew in every generation. Eternal exposure is the price of enlightenment. Banning, canceling, and censoring are lazy ways to deal with pernicious ideas. To be effectively refuted and to achieve deeply accepted and widespread rejection, these odious ideas need to be repeatedly brought out into the open, subjected to the bright disinfectant of light, and systematically contradicted by critical thinking and empirical evidence. The regime that anti-free-speech academics are promoting is headed in the opposite direction and would actually postpone the day when we eradicate white supremacy, rather than merely drive it underground to fester as a “truth so strong its cannot be heard.”
Under the heading “Knowing Them When You See Them,” Corn-Revere offers a playful but incisive set of 10 rules to cut through the pretense of old and new activists who want to restrict speech but claim they are not censors: “You Might Be a Censor if You Dismiss Support of Free Speech as Empty Dogma”; “if Your opposition to Free Speech Can Be Summed Up with a Bumper Sticker Slogan”; “if You Equate Defense of Freedom to Express Disagreeable Ideas with Endorsement of Bad Speech”; “if your First Amendment Theories Perfectly Match Your Political Causes”; “if You Are Certain That There Is No ‘Value’ in the Expression You Want to Suppress”; “if You Equate Speech with Conduct and Believe That It Must Be Restricted Because of Its Bad Tendencies”; “if You Can’t Argue about Free Speech Issues without Using Euphemisms and Apocalyptic Metaphors”; “if You Believe that Silencing Speech You Dislike Is the Exercise of Your Rights”; “if You Believe in Forcefully Suppressing Speech to Stop the Real Censors”; and “if You Equate Speech You Oppose with Mental Illness.”
He elaborates on each of these tests with vivid and persuasive examples, making this section of his book a short primer on the value of free speech and the danger of censorship that should be handed out in every high school, college campus, faculty meeting, town council, PTA meeting, hospital waiting room, grocery store, barber shop, political debate, house of worship, social media platform, state legislature, and especially the halls of Congress.
Corn-Revere has written an enjoyable, compelling, and necessary defense of free speech by profiling a range of American censors and would-be censors. He is hopeful but concerned by what he sees today. He asks,
He reminds us that during World War II, the legendary jurist Learned Hand, in a 1944 speech entitled “The Spirit of Liberty,” warned us that “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.” Respectfully, Corn-Revere believes that is only half-right when it comes to freedom of speech. It is not enough, he argues, for support of free speech to reside just “in the hearts of men and women.” There must be
A 2019 report by PEN America found strong support for the First Amendment in general, but it also found that many students simultaneously advocate for censorship and free speech. PEN sees “a looming danger that our bedrock faith in free speech as an enduring foundation of American society could give way to a belief that curtailing harmful expression will enable our diverse population to live together peaceably.”
Corn-Revere remains optimistic. “The system has been resilient — and free speech protections have remained strong (and in many cases expanded) — notwithstanding the challenges of Comstockery, Jim Crow, McCarthyism, Nixon, and the inanities of Donald Trump.” Of course, progress is not automatic. The system “requires ongoing maintenance. But there is more to work with today to maintain a robust system of free expression than when Anthony Comstock jump-started his career as a professional censor.”
He is convinced that all of the difficult issues we face “will not be resolved by declaring one side or the other of our deepest political or cultural conflicts the victor and giving in to the mind of the censor.” He ends with the words of “America’s most celebrated First Amendment lawyer,” Floyd Abrams, who decades ago warned: “The problem with censorship is that it leads to more censorship. It leads to a censorial mentality, to a state of affairs which is, in the most real sense, un-American.”
Stephen Rohde is a retired constitutional lawyer, lecturer, writer, and political activist.
In his entertaining, enlightening, and timely book, The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma, Robert Corn-Revere explores these and other intriguing questions by delving into the lives and work of five influential American advocates of censorship as well as a host of lesser censors. He presents vivid portraits of the Victorian era’s quintessential censor, Anthony Comstock, as well as Dr. Fredric Wertham, the psychiatrist who "stoked a national panic” over comic books; Newton Minow, who as chairman of the Federal Communications Commission sought to “homogenize broadcasting”; Tipper Gore, co-founder of the Parents Music Resource Center, which promoted parental advisories on record albums deemed too naughty for our youth; and Brent Bozell, founding president of the Parents Television Council, “an organization created to keep the world safe from fleeting expletives and wardrobe malfunctions.”
As Corn-Revere sees it, a “censor is one who seeks to exert control over the culture through law, based on the idea that he or she, speaking for the community, has a right to draw the boundary lines for speech.” The censor is convinced that “some forms of expression are so vile or dangerous that they should be restricted, or so valuable that they should be compelled.” Consequently, censors “claim the moral sanction to speak for the collective, either by enforcing ‘community standards’ against evil expression or by mandating speech that they believe serves the ‘public interest.’”
What all censors have in common is their unshakable conviction that they “know the truth, and must control the ideas or influences to which you may become exposed to protect you from falling into error (or sin)”; and the “truth” may be revealed to the censor “by whispers from god, by political theory, by popular vote, or by social science, but once it has been determined, the time for debate is over.”
But Corn-Revere, a leading First Amendment lawyer who has litigated scores of free speech cases, argued before the US Supreme Court, and obtained a posthumous pardon for the late comedian Lenny Bruce from the governor of New York, is also making a more profound point by introducing what he calls the “censor’s dilemma.” Based on his examination of the history of censorship, he makes a convincing — albeit optimistic — case about the censors profiled in his book: “[W]hile destructive to freedom in their time, they had no permanent impact in the United States.” Or, more accurately, “they didn’t achieve their intended impact.” It is the “censor’s dilemma” that “in part because the arbiters of propriety wish to suppress or supplant what the public embraces, they are the ultimate counterculture warriors and therefore doomed, in the end, to failure and disrepute.” But actually, “a more fundamental reason for the censor’s harsh fate is that his [or her] very existence contradicts the arc of history among societies that value freedom.”
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Corn-Revere is at his very best in vividly describing the quintessential censor Anthony Comstock (1844–1915), who became so identified with censorship that any form of excessive, moralistic, and self-righteous suppression of literature and art has come to be known as “Comstockery.” Corn-Revere calls him “the nation’s first professional anti-vice crusader,” who set the standard for all censors who followed in his footsteps by claiming “moral superiority — characterizing the speech they would restrict as distasteful, trivial, valueless, or downright harmful.”
In late 1872, 28-year-old Comstock, “a dry goods salesman and volunteer for a special project of the New York Young Men’s Christian Association (YMCA),” headed to Washington, DC, to lobby Congress to pass a law to strengthen the federal prohibition against mailing obscene or lewd matter. He came prepared with what he called his “Chamber of Horrors” — contraceptive “rubber goods,” racy playing cards, filthy pictures, and steamy novels. It becomes immediately apparent that Comstock was not only targeting words and pictures but contraception and abortion itself, setting him on a collision course with feminists such as Margaret Sanger.
Comstock succeeded. On March 3, 1873, Congress passed what would forever be known as the “Comstock Law.” It was everything he had hoped for.
No obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of an abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature […] shall be carried in the mail.
To reward Comstock, Congress designated him a “special agent” of the Post Office Department, vested with the power to make arrests and seize offensive items.
But Comstock was no crazy outlier. The New York Times declared that Congress had “powerfully sustained the cause of morality” by going after the “wretches who are debauching the youth of the country and murdering women and unborn babies.” During his first 10 months as a special agent, Comstock “traveled 23,000 miles in search of contraband. By December 1873 he had made fifty-five arrests and obtained twenty convictions under the new federal law.” He had “seized and destroyed 134,000 pounds of books ‘of an improper character,’ as well as 194,000 obscene pictures, 14,200 pounds of stereotype plates, 5,500 indecent playing cards, 60,300 ‘rubber articles,’ and 3,150 boxes of pills and powders.” In 1873, “he arrested thirty-five people for advocating contraception and secured twenty-five convictions.” Near the end of his 42-year career, he “claimed to have convicted enough people ‘to fill a passenger train of sixty-one coaches containing sixty passengers each,’” and destroyed “160 tons of literature and 4 million pictures.” Being reminded of Comstock’s early and active role in the anti-abortion movement takes on disturbing relevance as the Supreme Court is poised to overturn Roe v. Wade.
The impact of Comstock’s lifelong moral crusade went far beyond the federal law that made him famous. By 1920, all but two state legislatures had passed “mini-Comstock” laws. Anti-vice societies “sprang up across the country.” The first was the New York Society for the Suppression of Vice, established in May 1873, with Comstock as the founding secretary. When New York adopted its own “mini-Comstock” law, the legislation authorized the vice society to be deputized with the power to make arrests.
The Supreme Court had yet to address the extent of First Amendment protection for sexually explicit material, let alone constitutional protection for contraception and abortion. In this era, American law generally followed the British Hicklin rule, which defined obscenity as anything that “depraves and corrupts those whose minds are open to such immoral influences and into whose hands a publication of this sort might fall,” based on a single tainted word or passage without regard for a book’s literary merit or prevailing community standards. Such a subjective and elastic test gave Comstock free rein. “He viewed his mandate to stamp out ‘sin’ quite broadly to include all that he saw as ‘ungodly.’”
If there was one individual who personified everything Comstock hated, it was Victoria Woodhull, a twice-divorced, “radical firebrand who championed socialism, spiritualism, labor reform, the end of the death penalty, and total emancipation of women.” In 1868, she and her sister, Tennessee Clafin, became the first women stockbrokers on Wall Street; in 1872, she was a candidate for president on the Equal Rights ticket; and in 1871, she was the first woman to testify before Congress, advocating for women’s suffrage.
The sisters disseminated their views in their own tabloid, the Woodhull and Clafin Weekly. The November 1872 issue carried a sensational story about a scandalous affair “between the renowned pastor of the Plymouth Congregationalist Church, Henry Ward Beecher,” and the wife of his close friend and parishioner, and a story exposing a tale of debauchery about a prominent businessman accused of seducing two underage girls. Comstock personally joined federal marshals to see that the sisters were arrested and sent to jail, “where they languished for weeks.” Federal authorities seized their printing press and office equipment and destroyed 3,000 copies of the Weekly, despite the fact that eventually a judge dismissed the charges. Regardless of the outcome, Comstock had exacted punishment against the sisters, but it came at a price, as the public and the press began to see the toll that Comstock’s moralistic persecution was taking. The New York Sunday Mercury called the prosecution a “mockery,” and another newspaper opined that liberty of the press “is ours no longer.”
Corn-Revere’s lively and detailed account of Comstock’s monomaniacal crusade is filled with appalling stories like these, as women and men were relentlessly prosecuted for advocating free thought and free love, questioning the strictures of marriage, and demanding equal rights for women. Since Comstock was obsessed with anything remotely connected to sex, he actively pursued medical information because, by his twisted logic, knowledge of the human body and its workings could inspire impure thoughts. He prosecuted a popular marriage manual because it “dealt with sexual anatomy,” won a conviction of a doctor who wrote about sexual diseases (despite the fact that the US attorney “found nothing amiss”), and won another conviction against a doctor who mailed a copy of a pamphlet describing four types of birth control devices in response to a “decoy letter” sent by Comstock himself. At trial, the doctor was not allowed to enter the pamphlet into evidence.
Comstock’s final case surrounded pioneering feminist Margaret Sanger. Corn Revere writes,
As the founder of organizations that became Planned Parenthood and the originator of the term “birth control,” Sanger came to Comstock’s attention in 1914 by advocating the broad dissemination of information about contraceptives and publicly opposing his law. Sanger wrote [for] the radical journal The Woman Rebel.
The journal was dedicated to the emancipation of women and declared, “No Gods or Masters.” Comstock convinced the postmaster general to declare the journal obscene and unmailable. He then got a grand jury indictment against Sanger not only for publishing “indecent” articles but also for incitement to murder and riot. The first issue of The Woman Rebel was suppressed and five other issues were confiscated. Sanger ignored the indictment arguing the law was being enforced “to destroy the liberty of conscience and thought in matters of religion and against the freedom of the press.” She then wrote a new pamphlet, Family Limitation. She distributed 100,000 copies to factories and mines. Comstock decried the pamphlet as “contrary not only to the law of the State, but to the law of God.” Before he could arrest her, Sanger fled to England using a Canadian passport.
Undaunted, Comstock arrested Sanger’s husband, William, on charges that Family Limitation violated the law. William defended himself but the outcome of trial before a three-judge panel sitting without a jury was a foregone conclusion. One judge called the pamphlet “awful,” saying that “[i]f some of these women who go around advocating Women Suffrage would go around and advocate women having babies, they would be rendering society a greater service.”
The court denied William permission to mount a defense based on freedom of speech and found Family Limitation “indecent, immoral, and a menace to society.” He was sentenced to $150 or 30 days in jail. One woman interviewed at the courthouse told a reporter she had circulated many copies to classmates and that further efforts to stop circulation “would be futile” for “as fast as one circulator was arrested[,] another would step forward and take his place.” The day after the trial ended, Comstock took to his bed with acute pneumonia. He lived another 10 days and died on September 21, 1915.
Because Corn-Revere sees Comstock as the prototypical American censor against whom all the rest will be judged, he devotes a full chapter to assessing Comstock’s legacy. He asks: “Would anyone suggest that American society embraces the Victorian values that Anthony Comstock devoted his life and prodigious energy to preserving?” And he responds with a firm, “Hardly.” But now of course, with the imminent demise of Roe and the rise of the anti-LGBTQ movement, one cannot be blamed for questioning his confidence.
Comstock has become a prime example of how a democratic society should not conduct itself when it comes to the appropriate role the government should play in how people express themselves on matters of sex, marriage, and lifestyle. Corn-Revere suggests that Comstock would be left “aghast and sputtering” by Justice Anthony Kennedy’s expansive view of constitutional rights expressed in his majority opinion in the Supreme Court’s 2015 opinion in Obergefell v. Hodges striking down state restrictions on same-sex marriage. Contrary to Comstock’s cramped view of the autonomy of the individual, Kennedy held that the Founders “entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” But again, we have to ask whether Obergefell will be on the chopping block in the hands of the current Supreme Court super-majority.
H. L. Mencken rendered a severe verdict on Comstock’s “gargantuan endeavor” by calling him “one of the national clowns” and his cause “one of the national jokes,” all of which “liberated American letters from the blight of Puritanism.” As Corn-Revere sees it, Comstock’s curse was worse than just being seen as a buffoon. His
dogmatic and inflexible insistence that the government has a divine mandate to censor anything even remotely related to sex forced free speech advocates to sharpen their constitutional reasoning [in support of] extending First Amendment protection, and those arguments eventually prevailed.
Corn-Revere traces how opposition to Comstock in 1902 led to the founding of the Free Speech League (a “forerunner of the ACLU”), “the first organization in American history to demonstrate a principled commitment to free expression for all viewpoints on all subjects.” More robust protection for free speech began to inform judicial opinions, most prominently a series of federal court decisions in the 1930s holding that James Joyce’s masterpiece Ulysses could not be excluded from the United States under the Tariff Act.
Yet, as Corn-Revere warns, “the ghost of Anthony Comstock lingers.”
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From the late 1940s to the mid-1950s, the United States was gripped by a new censorship crusade against what the literary critic for the Chicago Daily News, in a column entitled “A National Disgrace,” called “pulp-paper nightmares” that would lead to “a cultural slaughter of the innocents.” Comic books. As Corn-Revere notes, “Today it is difficult to appreciate the extent to which comic books took America by storm beginning in the late 1930s and early 1940s. […] By 1941, 30 different comic book publishers churned out 15 to 18 million books each month and had a projected readership that topped 60 million.” By the middle of World War II, newsstand sales “rose to 25 million copies a month,” and in the following decade the number “sold or traded each month reached 75 million. At the time, it was estimated that comic books were read by 91 to 95 percent of children between the ages of six and eleven.”
The concern over comics was focused on “their supposed contribution to juvenile delinquency.” Enter Dr. Fredric Wertham, whom Corn-Revere calls “Comstock in miniature.” But unlike Comstock, Wertham was a man of science, “a social progressive who championed civil rights and racial integration.” One admiring biographer called him “a traditional left-wing European intellectual” and “a card-carrying member of the liberal intelligentsia.” No doubt, Corn-Revere chose him to illustrate his key premise that censors come in all shapes and sizes, across the political spectrum.
Wertham grabbed public attention by condemning comics in popular publications such the Saturday Review of Books and Reader’s Digest, where, according to Corn-Revere, he wrote articles “filled with lurid illustrations and florid descriptions of comic book content, unsupported and categorical conclusions about their effects, anecdotes in the place of data or research, ad hominem attacks on anyone who doubted him, and unabashed admiration for public burnings of comic books.” In short, Wertham was “channeling his inner Comstock.” He was quoted in an article in the March 1948 issue of Collier’s magazine entitled “Horror in the Nursery” insisting that the “time has come to legislate these books off the newsstands and out of the candy stores.”
Within a few months, the Los Angeles Board of Supervisors had banned the sale to minors of comic books that featured accounts of crimes from mayhem to murder. But the Los Angeles Superior Court swiftly struck down the ordinance, citing the US Supreme Court decision in Winters v. New York, which invalidated an 1884 law (enacted at Comstock’s urging) prohibiting publications that featured “pictures and stories of deeds of bloodshed, lust or crime.” The Court held that the “line between the informing and the entertaining is too elusive for the protection of that basic right. […] What is one man’s amusement teaches another doctrine.” Although the Court saw “nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.”
But these rulings did little to deter Wertham and the growing movement to censor comic books. Eventually at least 50 US cities “would attempt to regulate the sale of comics.” Often, in an attempt to avoid judicial review, local police and prosecutors used unofficial bullying tactics, such as circulating blacklists or establishing “literature commissions,” in order “to identify suspect works.”
Meanwhile, Congress couldn’t resist getting on the bandwagon. “[B]etween 1950 and 1954, multiple congressional committees” spent precious legislative time and effort investigating the threat to our youngsters posed by comic books. The first hearings were chaired by Senator Estes Kefauver, “a New Deal Democrat from Tennessee who won fame investigating organized crime in some of the first-ever televised congressional hearings.”
After the committee listened to hundreds of witnesses, including juvenile court judges, probation officers, court psychiatrists, social workers, comic book publishers, and public officials, including FBI Director J. Edgar Hoover, its final report in November 1950 found “no direct connection between the comic books dealing with crime and juvenile delinquency.”
For reasons unexplained — at one point he claimed he had inadequate time to prepare because he was on vacation — Wertham had not submitted testimony to the Kefauver committee, and he complained that this was the reason for the disappointing outcome. He kept up his campaign, and in April 1954 he published Seduction of the Innocent, which the publisher touted as “the result of seven years of scientific investigation.” Instead, Corn-Revere describes it as “a long-form, first-person screed denouncing comic books, inactive legislators, misguided judges, bought-off psychologists, and anyone who dared disagree with him.” The “science” was “nothing more than a series of descriptions of salacious comic book stories (including some illustrations), anecdotal accounts of counseling sessions with patients, and Wertham’s personal opinions presented as indisputable scientific fact.”
In 2010, Carol Tilley, a professor of library and information science, reviewed Wertham’s papers and found that he had “manipulated, overstated, compromised, and fabricated evidence.” He had
misstated the ages of children, combined quotations from many subjects to make it appear as if they came from the same person, omitted (or even invented) key details. His accounts left out other likely factors that might explain delinquency, […] exaggerated the number of patients from which he drew his conclusions, which numbered in the hundreds and not “many thousands” as he has claimed. […] [H]e got “carried away with his own preconceptions, his own agenda.”
But that analysis had not been done in the early 1950s. Wertham was so convincing that in 1954, “three-quarters of the American public believed that comic books caused juvenile delinquency.” That year, another congressional hearing was held and Wertham was the “star witness.” Wearing a white hospital coat, he testified that his book Seduction of the Innocent was the product of “a sober, painstaking, laborious clinical study” that furnished “incontrovertible evidence of the pernicious influences on youth of crime comic books.” He was especially contemptuous of Superman as “particularly injurious to the ethical development of children.” As committee members fawned over him, Wertham reached rhetorical excesses, declaring that “Hitler was a beginner compared to the comic-book industry.”
The committee issued its final report in 1955. It adopted Wertham’s tone of condemnation but concluded that juvenile delinquency has many causes. It rejected any “proposal for censorship” because that would be “totally out of keeping with our basic American concepts of a free press operating in a free land for a free people.” Instead, “it endorsed a strict system of self-regulation.”
Breathing a collective sigh of relief over avoiding federal regulation, the comic book industry promptly formed the Comics Magazine Association of America (CMAA). All but three of the top comic book publishers became members. Within a few months, CMAA announced that all members had agreed to submit their comics in advance to CMAA censors to obtain the coveted Seal of Approval, based on 41 requirements. For example, comics could not use terms like “horror” or “terror” in their titles; “zombies, vampires, cannibals, and werewolves were banned”; public officials could not be “portrayed disrespectfully”; love stories must portray “the sanctity of marriage”; and comics “should foster respect for parents, the moral code, and honorable behavior.”
CMAA soon announced that it had “screened 285 comic books and rejected 126 stories and 5,656 individual drawings.” For Corn-Revere, the code “accomplished what law could not — it had a broadly chilling effect industrywide. […] Although not entirely due to the code, [by 1955] the number of comic book titles published dropped 40 percent,” and “[m]ore than 800 comic book artists, writers, and associated employees lost their jobs.”
But Wertham wasn’t satisfied. He claimed that Kefauver and his committee had “whitewashed the crime comic book industry” and the CMAA Code was a “smokescreen.” While proclaiming to the Senate, “I detest censorship,” he argued that “freedom to publish comics has nothing to do with civil liberties.” In true Orwellian fashion, he added: “Leaving everything to the individual is actually not democracy; it is anarchy.”
Wertham died in 1981, and his obituary in The New York Times treats the last 25 years of his life as almost “an afterthought.” Corn-Revere assesses Wertham’s legacy much the same as Comstock’s. While his activism had “an undeniable impact” ushering in “a restrictive regime of industry self-regulation” that “wrecked businesses and destroyed lives,” by the mid-1960s banned themes in comics reemerged in the underground comix movement, such as Robert Crumb’s Zap Comix and Fritz the Cat. By the 1970s, Marvel made a comeback with its superheroes. It now posts grosses of $17.5 billion from movies featuring its iconic comic book characters. Graphic novels began to appear in the 1980s such as Art Spiegelman’s Maus, and scholarly journals and conferences abound.
“Wertham’s failure could not be more complete,” Corn-Revere writes. “Whether measured in terms of cultural influence, academic acceptance, or law, the medium he sought to crush emerged triumphant.”
(Cautionary footnote: This year, censors in Tennessee banned Maus.)
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Undeterred in its mission to monitor the entertainment habits of the American people — this time it was music — on September 19, 1985, the US Senate, led by Senator John C. Danforth, “an ordained Episcopal priest (and heir to the Ralston Purina pet food fortune),” convened a hearing on what critics bemoaned was a “wave of [rock] music containing explicit lyrics about sex, violence, fetishes, and references to the occult.” The hearings had some influential names, including “notable Washington wives […] Tipper Gore, then-wife of then-Senator Al Gore, and Susan Baker, wife of James A, Baker, who had served as President Ronald Reagan’s Chief of Staff and was at the time his Treasury Secretary.” The two women had recently formed the Parents Music Resource Center (PMRC) with the goal of persuading record companies to use warning labels, “establish an industry monitoring board, and to get the industry to practice self-restraint.”
Although PMRC and the Senate committee disavowed any attempt at “censorship” (a denial mentioned at least 25 times during the hearing), Corn-Revere shows how “the interplay of Washington politics and news coverage of this circus-like event showed it to be a near perfect blend of Comstock’s playbook with the censor’s dilemma.” This was captured best by another witness at the hearing: Frank Zappa of the Mothers of Invention. Zappa called the scene a recipe for censorship “whipped up like an instant pudding by ‘the wives of Big Brother.’” He was prescient.
Corn-Revere sees the 1985 hearings as yet another periodic “moral panic” in the history of popular music in America. In 1899, Ragtime music was castigated as so “vulgar, filthy and suggestive” that it should be “suppressed by press and pulpit.” In 1914, the Musical Observer asked readers to “take a united stand against the Ragtime Evil as we would against bad literature.” In 1933, a Washington State congressman introduced a bill to ban jazz music because “our people are becoming dangerously demented, confused, distracted or bewildered.” Offenders who were “jazzily intoxicated” could be sent to an insane asylum. In 1940, NBC banned 140 songs from the radio because they allegedly encouraged “disrespect for virginity, mocked marriage, and encouraged sexual promiscuity.” Duke Ellington’s “The Mooche” was “blamed for inciting rape, and only the instrumental version of Cole Porter’s ‘Love for Sale’ could be aired.” In the mid-1950s, police officials in Connecticut, New Jersey, Maryland, Pennsylvania, Rhode Island, and other states “blamed juvenile delinquency and general unrest on rock.” In 1955, a Los Angeles Times article “described rock as ‘a violent, harsh type of music that parents feel incites teenagers to do all sorts of crazy things.’” In 1959, Minneapolis “banned a show hosted by Dick Clark to protect ‘the peace and well-being of the city.’” And cities across the country banned rock concerts. (Corn-Revere’s tale of the bizarre attempts to censor the song “Louie Louie” is both comical and appalling.)
Despite Tipper Gore and Susan Baker’s assurances they were only seeking “voluntary” warning labels, by 1990 the appetite for government regulations had grown, and mandatory record labeling was proposed in 19 states. But by then the tide was already turning. In preparation for Al Gore’s run for president in 1988, he and Tipper were calling the 1985 hearing “a mistake” that “sent the wrong message.” Yet again, Corn-Revere observes that “[m]uch as with Comstock’s legacy, the efforts of the would-be music censors became the subject of parody and their censorship turned out to be great advertising for the taboo material.” George Carlin and a group of rap artists each released albums titled Parental Advisory: Explicit Lyrics. “Atlantic Records reported it received orders for more than a million copies of the rap album even before the title was released.”
Corn-Revere concludes that “after all the moral panics over ragtime, jazz, rock, and rap, we live in a time when rock has gone classic, rap is mainstream, and kids have access to it all on demand on their portable devices. Yet, somehow, civilization has not come to an end.”
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Corn-Revere next turns to the medium of television, and here his target is Newton Minow, whom President John F. Kennedy appointed chair of the Federal Communications Commission. Minow immediately made headlines in May 1961 by famously calling TV a “vast wasteland.” But Minow was not just another media critic. He was in charge of a vast federal agency with the power to grant, deny, or suspend the licenses of every television and radio station in the country. In Corn-Revere’s description, he comes across as a well-meaning benevolent would-be censor who genuinely believed he could use the power of the FCC to improve what the public heard on the radio and saw on television.
The creation of the FCC and its regulatory grip on broadcasting developed at a time when new technology had yet to gain First Amendment protection. In 1915, the Supreme Court held that “the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit, like other spectacles, not to be regarded […] as part of the press of the country or as organs of public opinion.” Congress began regulating radio in 1927 through the Federal Radio Commission (FRC). In 1932, a federal appeals court upheld the revocation of the license for radio station KGEF for broadcasting programs hosted by the Reverend “Fighting Bob” Shuler during which he accused the mayor, police chief, and district attorney of corruption. The court saw no First Amendment problem with the FRC revoking the license because radio was a mere “instrumentality of commerce” and the broadcasts were “sensational.”
The Communications Act of 1934 was passed to replace the Federal Radio Commission with the Federal Communications Commission. The new agency’s authority included television, and the legislation empowered “the FCC to adopt rules to further ‘the public interest, convenience, and necessity.’” This vague and elastic standard, which would never hold up if applied to books, newspapers, and other print publications, equipped the FCC with broad authority which it has wielded to this day. Corn-Revere traces the battles that have ensued over the “family viewing policy” in the mid-1970s and the “fairness doctrine” in the 1980s. Again and again, broadcasting has been treated as a second-class citizen when it comes to freedom of the press, often on the grounds that the government could regulate television and radio because they were “unique” and “scarce” methods of communications.
In Corn-Revere’s view, “FCC meddling in programming quality and promotion of ‘family viewing’ dampened creativity and resulted in blander programming,” and “rules to ensure news ‘fairness’ didn’t improve broadcast journalism and provided government officials with a weapon they abused to silence critical voices.” Both policies were challenged in court and eventually withdrawn by the FCC.
Minow has not “suffered the same ridicule that dogged Anthony Comstock,” but Corn-Revere argues that “the type of content regulation he advocated failed to achieve its objectives and is fading from relevance. As is so often the case, the intended subject of censorship eventually prevails and even flourishes, while the would-be censor is destined for obscurity.”
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“If ever there were a spiritual heir to Anthony Comstock it is Leo Brent Bozell, III.” Bozell worked for the National Conservative Political Action Committee until he founded the Media Research Center in 1987 to “expose and neutralize the propaganda arm of the Left: the national news media.” In 1995, he founded the Parents Television Council (PTC), which is the focus of Corn-Revere’s examination.
While Bozell “would never personally exercise direct government authority,” he spent his career “advocating government restrictions and pulling levers of power behind the scenes.” “The raison d’être of PTC,” Corn-Revere writes, “was to foster increased FCC enforcement of the federal criminal law prohibiting indecency.” Its 2006 annual report boasted that PTC members “filed petitions with the FCC to revoke the licenses of seventeen television stations” on grounds of “indecency” which if successful would result “in the stations being abruptly put out of business.”
The Radio Act of 1927 and the subsequent Communications Act of 1934 both prohibited “obscene, indecent, or profane language.” In 1948, the US Criminal Code incorporated this prohibition and made a violation punishable by a fine, imprisonment for not more than two years, or both. In 1937, NBC broadcast a radio sketch in which “sultry actress Mae West” seduces the serpent in the Garden of Eden to give her the forbidden fruit so she and Adam can “leave this dump.” Later she invites Charlie McCarthy, “the wise-cracking alter ego of ventriloquist Edgar Bergen,” to come home with her, telling him, “I’ll let you play in my wood pile.” The Catholic Legion of Decency launched a campaign of outrage, and the FCC opened an investigation. The commission concluded that the sketch was “vulgar and indecent, and against all proprieties,” but did not issue any formal sanctions. Instead, the chair of the FCC warned that the broadcast would be held against the 59 NBC affiliates when their licenses were up for renewal unless “they aired nothing else that was offensive.” The incident did nothing to define the vague indecency standard but had such a chilling effect that Mae West was kept off radio for the next 14 years. This is the pernicious impact when government intimidates by threat rather than by law or regulation which can be challenged in court.
In March 1973, the FCC issued a “notice of inquiry” against eight radio stations due to alleged “indecency.” Shortly thereafter, “the FCC issued a $2,000 notice of apparent liability against Sonderling Broadcasting Company for airing a radio program called Femme Forum (the top-rated show in the Chicago radio market), which it found ‘titillating and pandering.’” Sonderling promptly paid the fine, “but an ACLU affiliate, the Illinois Citizens Committee for Broadcasting, appealed on behalf of viewers and listeners.” The majority rejected the appeal, but still: David Bazelon, chief judge of the DC Circuit described the episode as “a classic example illustrating a whole range of ‘raised eyebrow’ tactics.”
After tracing the continuing court battles over the “indecency” standard, including George Carlin’s “Filthy Words” controversy and the rise of “shock jocks” like Howard Stern in the 1980s, Corn-Revere finds Brent Bozell at it again fueling outrage this time triggered by a live telecast of the 2003 Golden Globes Awards on NBC. “An overly exuberant Bono” surprised everyone by blurting out that it was “fucking brilliant” that his band “U2 was being honored.” Within days, “PTC was responsible for flooding the FCC with 18,000 complaints,” using PTC’s “first-ever web-driven complaint form,” which contained hundreds of entries for foul language from “ass” to “whore.” The complaint forms were already filled out. All an individual had to do was insert his or her name and address — even if the “complainant” had never seen the show. According to the FCC, while it only received 111 indecency complaints in 2000 and 346 in 2001, the numbers jumped to 1,068,802 in 2004. That year, 99.9 percent of all indecency complaints were generated by PTC. In 2004 alone, proposed fines and “settlement” payments amounted to nearly $8 million — “almost four times the total of all proposed fines in the previous ten years.” In 2006, Congress boosted the fines tenfold. Under the new law,” the aggregate fine to a network for a single, fleeting instance of indecent speech could approach $100 million.”
But the FCC rulings in particular cases were maddeningly arbitrary and inconsistent, leaving broadcasters to guess at what was prohibited. Of course, this is exactly the goal of any censorship regime: a chilling effect resulting in self-censorship, which is final, complete, and never sees the light of day. The FCC “found that the isolated use of the word ‘bullshit’ in episodes of ABC’s NYPD Blue was indecent, but the use of the words ‘dick’ and ‘dickhead’ were not.” The words “fuck” and “shit” in the Martin Scorsese documentary The Blues: Godfathers and Sons were indecent but the same words in an unedited broadcast of Saving Private Ryan were not.
Corn-Revere clearly explains the tangled court challenges to the FCC’s renewed enforcement spanning six years. Eventually (spoiler alert), the FCC lost. Most prominently, the FCC “had to write a $550,000 refund check to CBS” over Janet Jackson’s “wardrobe malfunction” at the 2004 Super Bowl halftime show.
Bozell must have seen it coming. In 2007, he stepped down as president of PTC. “A 2010 New York Times article described PTC as an organization ‘on the defensive,’ observing: ‘These are difficult times for the indecency police.’” The organization has not initiated a mass complaint campaign for indecency since 2015. For Corn-Revere, “Bozell’s legacy will be that his activism resulted in neutering the FCC’s indecency standard and placing it on the path to extinction.” Like so many censors and would-be censors before him, neither “Bozell’s continuing activism nor PTC can hold back a changing culture any more than King Canute could hold back the tides. But their efforts laid bare the fragility of the FCC indecency standard as a weapon in the culture wars.” Corn-Revere predicts that if a case reached the Supreme Court which squarely posed a First Amendment challenge to the indecency standard, “it would find the law to be unconstitutional.”
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Corn-Revere ends his book with two cautionary chapters expressing genuine concern that today one of the most serious threats of censorship is not coming from conservative bluenoses but from progressive academics, whom he sees as part of a new anti-free-speech movement.
Corn-Revere traces this movement back to Herbert Marcuse, a Marxist philosopher of the mid-20th century, who “is to political discourse what Anthony Comstock was to cultural purity.” In his signature 1965 essay “Repressive Tolerance,” Marcuse argued that establishing true democracy “may require apparently undemocratic means,” in which “certain things cannot be said, certain ideas cannot be expressed, certain policies cannot be proposed, certain behaviors cannot be permitted without making tolerance an instrument for the continuation of servitude.”
According to Corn-Revere, “Marcuse’s ideas found expression in campus speech codes and some local ordinances adopted in the late 1980s and early 1990s,” promoted by academic writers such as Richard Delgado, Mari Matsuda, and Charles R. Lawrence III in the field of race and gender and Catherine MacKinnon in the area of sexually explicit material. Generally, they argued that free speech did not protect Nazis, Klansmen, racists, or anyone whose speech degraded or humiliated others. In 1990, in his provocative book There’s No Such Thing as Free Speech, and It’s a Good Thing, Too, Professor Stanley Fish defended censorship, if done for the “right” reasons or by the “right” people. Corn-Revere explains how the courts consistently invalidated the campus speech codes and local ordinances which had proliferated during these years. One court observed that a regulation which prohibited “discriminatory comments, epithets, or other expressive behavior,” was too vague, overly broad, and did not fall within the First Amendment exception for “fighting words.” Another court held that a ban on “discriminatory harassment” failed to provide “any principled way to distinguish sanctionable from protected speech.”
Corn-Revere regrets that long-standing support for free expression has begun to wane in recent years. In his words, from
[t]he 1930s through the 1970s, liberal academics generally could be counted on to provide a full-throated defense of free speech when it came to supporting the labor movement, the struggle for civil rights, battles over academic freedom, opposing restrictions on obscenity, defending anti-war protests, and the like.
But that has begun to change.
Corn-Revere points out that Cornell University Law Professor Steve Shiffrin believes that judges “have turned free speech into a fetish.” Rather than impose strict First Amendment scrutiny on expression, Shiffrin argues courts should instead “engage in an ad hoc balancing of interests and should feel free to expand the categories of unprotected speech.” In his 2018 article “Can Free Speech Be Progressive?,” Professor Louis Michael Seidman answers his own question with an emphatic “no.” He claims that modern free speech doctrine “is dominated by obsession with government restrictions on speech and with government interference with listener autonomy.” It’s not clear why robust enforcement of the First Amendment’s strict admonition that “Congress shall make no law […] abridging the freedom of speech, or of the press” (which has since been interpreted to apply to all levels of government) deserves to be belittled as a “fetish” or an “obsession with government restriction” when that’s exactly what the First Amendment says: we must prevent the government from restricting speech and interfering with the autonomy of speakers and listeners, regardless of what they have to say.
Corn-Revere counters with arguments from several free speech advocates. One of the most convincing refutations to calls to prohibit hate speech was made by Aryeh Neier, former executive director of Human Rights Watch. He was born in Nazi Germany and became a refugee when his family fled in 1939 when he was only two years old. He was also national director of the ACLU at the time of the Skokie controversy, when the ACLU defended the right of American Nazis to conduct a nonviolent march in that predominantly Jewish community. What he wrote in his book Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom (1979) is worth quoting in full:
Because we Jews are uniquely vulnerable, I believe we can win only brief respite from persecution in a society in which encounters are settled by power. As a Jew, therefore, concerned with my own survival and the survival of the Jews — the two being inextricably linked — I want restraints placed on power. The restraints that matter most to me are those which ensure that I cannot be squashed by power, unnoticed by the rest of the world. If I am in danger, I want to cry out to my fellow Jews and to all those I may be able to enlist as my allies. I want to appeal to the world’s sense of justice. I want restraints which prohibit those in power from interfering with my right to speak, my right to publish, or my right to gather with others who also feel threatened. Those in power must not be allowed to prevent us from assembling and joining our voices together so we can speak louder and make sure that we are heard. To defend myself, I must restrain power with freedom, even if the temporary beneficiaries are the enemies of freedom.
Neier’s powerful and compassionate comments reflect the words of the Seventh Circuit Court of Appeals in its decision in Collin v. Smith, upholding the right of the Nazis to march in Skokie:
[O]ur task here is to decide whether the First Amendment protects the activity in which appellees wish to engage, not to render moral judgment on their views or tactics. No authorities need be cited to establish the proposition, which the Village does not dispute, that First Amendment rights are truly precious and fundamental to our national life. Nor is this truth without relevance to the saddening historical images this case inevitably arouses. It is, after all, in part the fact that our constitutional system protects minorities unpopular at a particular time or place from governmental harassment and intimidation, that distinguishes life in this country from life under the Third Reich.
Corn-Revere also turns to Professor Nadine Strossen, former national ACLU president (and herself the daughter of a Holocaust survivor), who wrote an entire book on this subject, HATE: Why We Should Resist It with Free Speech, Not Censorship. “Strossen explains how traditional free speech principles that include a strict requirement of content neutrality are essential to protecting vulnerable members of the population and members of minority groups.” It is only through strict adherence “to free speech principles — not politics — that such groups can be protected, and she marshals numerous examples, both in the USA and abroad, confirming that laws restricting speech inevitably are used to punish the very groups they ostensibly were enacted to protect.”
Corn-Revere points out a key fact that the new progressive anti-free-speech movement overlooks at its peril: “In democracies, where laws are made and enforced by the majority. […] And, […] minorities simply have to trust that the majorities in charge will protect them” — unless the courts remain free to invoke the very content-neutral free speech principles which these progressive academics are seeking to dismantle.
And then there’s the ever-present question conveniently ignored by anti-free-speech academics: Who is on the committee that decides what new speech restrictions to impose and how to define them? Do we trust the same Republican state legislatures or local school boards that are already banning books and prohibiting the teaching of The 1619 Project and critical race theory? It’s one thing to write law review articles and books urging new limitations on offensive and hateful speech. It’s a far different matter to empower government authorities at federal, state, and local levels, with civil, criminal, and administrative enforcement powers, or college administrators (with or without faculty input) with the power to grant, deny, or revoke tenure, to decide what ideas can be spoken, written, or taught.
Progressive anti-free-speech advocates repeatedly argue that certain ideas about race such as The Bell Curve or the purported “benefits” of colonialism and slavery, or the wisdom of Brown v. Board or Education, are no longer debatable and should never be discussed in a college classroom or any extramural settings, on pain of disciplinary punishment. But every year new students arrive at college. Many have never heard of Charles Murray but nonetheless carry around inherited notions of racial inferiority. Ideas that have long been discredited by the rest of us need to be discredited anew in every generation. Eternal exposure is the price of enlightenment. Banning, canceling, and censoring are lazy ways to deal with pernicious ideas. To be effectively refuted and to achieve deeply accepted and widespread rejection, these odious ideas need to be repeatedly brought out into the open, subjected to the bright disinfectant of light, and systematically contradicted by critical thinking and empirical evidence. The regime that anti-free-speech academics are promoting is headed in the opposite direction and would actually postpone the day when we eradicate white supremacy, rather than merely drive it underground to fester as a “truth so strong its cannot be heard.”
Under the heading “Knowing Them When You See Them,” Corn-Revere offers a playful but incisive set of 10 rules to cut through the pretense of old and new activists who want to restrict speech but claim they are not censors: “You Might Be a Censor if You Dismiss Support of Free Speech as Empty Dogma”; “if Your opposition to Free Speech Can Be Summed Up with a Bumper Sticker Slogan”; “if You Equate Defense of Freedom to Express Disagreeable Ideas with Endorsement of Bad Speech”; “if your First Amendment Theories Perfectly Match Your Political Causes”; “if You Are Certain That There Is No ‘Value’ in the Expression You Want to Suppress”; “if You Equate Speech with Conduct and Believe That It Must Be Restricted Because of Its Bad Tendencies”; “if You Can’t Argue about Free Speech Issues without Using Euphemisms and Apocalyptic Metaphors”; “if You Believe that Silencing Speech You Dislike Is the Exercise of Your Rights”; “if You Believe in Forcefully Suppressing Speech to Stop the Real Censors”; and “if You Equate Speech You Oppose with Mental Illness.”
He elaborates on each of these tests with vivid and persuasive examples, making this section of his book a short primer on the value of free speech and the danger of censorship that should be handed out in every high school, college campus, faculty meeting, town council, PTA meeting, hospital waiting room, grocery store, barber shop, political debate, house of worship, social media platform, state legislature, and especially the halls of Congress.
Corn-Revere has written an enjoyable, compelling, and necessary defense of free speech by profiling a range of American censors and would-be censors. He is hopeful but concerned by what he sees today. He asks,
[I]f legal protections for free speech expanded through the twentieth century in part because the law tracked cultural shifts regarding what expression people were willing to tolerate, is there any good reason to believe that they might not contract if social attitudes were to change in the opposite direction? In other words, is the First Amendment safe if the censor’s dilemma fades?
He reminds us that during World War II, the legendary jurist Learned Hand, in a 1944 speech entitled “The Spirit of Liberty,” warned us that “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.” Respectfully, Corn-Revere believes that is only half-right when it comes to freedom of speech. It is not enough, he argues, for support of free speech to reside just “in the hearts of men and women.” There must be
a legal system that recognizes and protects individual rights. It is of little use if the spirit is willing but the Constitution is weak. The long-term security of free speech depends on both a culture that recognizes the value of diverse and unsettling voices backed by legal protections that thwart the majority’s natural impulse to silence them.
A 2019 report by PEN America found strong support for the First Amendment in general, but it also found that many students simultaneously advocate for censorship and free speech. PEN sees “a looming danger that our bedrock faith in free speech as an enduring foundation of American society could give way to a belief that curtailing harmful expression will enable our diverse population to live together peaceably.”
Corn-Revere remains optimistic. “The system has been resilient — and free speech protections have remained strong (and in many cases expanded) — notwithstanding the challenges of Comstockery, Jim Crow, McCarthyism, Nixon, and the inanities of Donald Trump.” Of course, progress is not automatic. The system “requires ongoing maintenance. But there is more to work with today to maintain a robust system of free expression than when Anthony Comstock jump-started his career as a professional censor.”
He is convinced that all of the difficult issues we face “will not be resolved by declaring one side or the other of our deepest political or cultural conflicts the victor and giving in to the mind of the censor.” He ends with the words of “America’s most celebrated First Amendment lawyer,” Floyd Abrams, who decades ago warned: “The problem with censorship is that it leads to more censorship. It leads to a censorial mentality, to a state of affairs which is, in the most real sense, un-American.”
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Stephen Rohde is a retired constitutional lawyer, lecturer, writer, and political activist.
LARB Contributor
Stephen Rohde is a writer, lecturer, and political activist. For almost 50 years, he practiced civil rights, civil liberties, and intellectual property law. He is a past chair of the ACLU Foundation of Southern California and past National Chair of Bend the Arc, a Jewish Partnership for Justice. He is a founder and current chair of Interfaith Communities United for Justice and Peace, member of the Board of Directors of Death Penalty Focus, and a member of the Black Jewish Justice Alliance. Rohde is the author of American Words of Freedom and Freedom of Assembly (part of the American Rights series), and numerous articles and book reviews on civil liberties and constitutional history for Los Angeles Review of Books, American Prospect, Los Angeles Times, Ms. Magazine, Los Angeles Lawyer, Truth Out, LA Progressive, Variety, and other publications. He is also co-author of Foundations of Freedom, published by the Constitutional Rights Foundation. Rohde received Bend the Arc’s “Pursuit of Justice” Award, and his work has been recognized by the ACLU and American Bar Association. Rohde received his BA degree in political science from Northwestern University and his JD degree from Columbia Law School.
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