Read You Can't Read This Book: Censorship in an Age of Freedom Online
Authors: Nick Cohen
Tags: #Political Science, #Censorship
No newspaper could then or can now take many fines of that size. But the Southern courts had created the principle that criticism of a public body was a direct criticism of the person in charge of it, who could then sue for libel. The writs kept on coming. Alabama city commissioners sued the
New York Times
again, this time for $3 million, after its reporter Harrison Salisbury filed a piece that spared the reader nothing. Alabama’s authorities, he wrote, had segregated everything from parks to taxis, and created an American Johannesburg. They even banned a book showing black rabbits and white rabbits playing together. ‘Every channel of communication, every medium of mutual interest, every reasoned approach, every inch of middle ground has been fragmented by the emotional dynamite of racism, enforced by the whip, the razor, the gun, the bomb, the torch, the club, the knife, the mob, the police and many branches of the state’s apparatus.’
The white legal system did not only target newspapers. Anthony Lewis, in his history of the struggle for civil rights and press freedom in America, tells the story of what happened to the publishers of a pamphlet issued by a citizens’ committee which recounted how the police stopped a black man, forced him out of his car and shot him in the back. The FBI identified and charged a local policeman, but an all-white jury in a segregated court acquitted him. Alabama lawyers told the police they could sue the citizens’ committee for criminal libel for suggesting that it had a racist killer in its ranks.
All sides realised what was at stake. The newspapers of the old Confederacy welcomed the prospect of libel law denying publicity to the Civil Rights movement. Sullivan’s victory over the
New York Times
, said the
Alabama Journal
, ‘could have the effect of causing reckless publishers of the North … to make a re-survey of their habit of permitting anything detrimental to the South and its people to appear in their columns’. The South was ‘libelled every day’. Now Southern lawyers were fighting back, and calling editors from hundreds of miles away to make them answerable to Alabama’s courts. Or as the
Montgomery Advertiser
headlined the verdict: ‘State Finds Formidable Legal Club to Swing at Out of State Press’.
The Civil Rights movement knew that the intimidation, the bombing of black churches, the attacks on black children going to white schools, had to be publicised if they were to be stopped. But as lawyers for Alabama’s black ministers said after the Sullivan verdict, ‘If the libel action is not struck down not only will the struggles of Southern negroes toward civil rights be impeded but Alabama will have been given permission to place a curtain of silence over its wrongful activities.’
The American Supreme Court intervened, and its decision in the 1964 case
New York Times Co. v. Sullivan
is one of those rare moments in history when freedom of speech made an unequivocal advance. Herbert Wechsler, the
New York Times
’ lawyer, who had earned the right to be respected by prosecuting Nazi war criminals at Nuremberg, made a bold argument. He did not confine himself to saying that Alabama had no right to impose punishments on newspapers that sold only a few hundred copies in the state. Nor did he look at the racist nature of the Alabama legal system. Rather he examined the history of American liberty from the Revolution on, and argued that politicians and their officials should not be allowed to punish citizens in the libel courts for freely expressing their opinions, even if some of their facts were wrong and some of their views offensive.
No court had ruled that libel law was an attack on free speech before. Judges and legislators had exempted defamation, slander and calumny from protections for freedom of speech and freedom of the press. They reasoned that lies stuck, and the malicious could sully good reputations. Citizens needed protection from poison pens, and it was not a restriction on freedom to give it to them. But the
New York Times
argued that the law was not being used by citizens seeking to protect themselves from scurrilous journalists. Instead, it had become the chosen instrument for state officials and police chiefs seeking to punish citizens protesting about their abuses of power.
On its own, this argument was not enough. The English tradition of libel authorised the punishment of the ‘seditious’ who libelled the state and its officers. In 1704, Lord Chief Justice Holt ruled that ‘It is very necessary for all governments that the people should have a good opinion of it. And nothing can be worse to any government than to endeavour to procure animosities, as to the management of it; this has always been looked on as a crime, and no government can be safe without it be punished.’
Ruling classes have always wanted to silence critics, and the rulers of America were no exception. Within a decade of Congress accepting the First Amendment, John Adams persuaded it to pass a Sedition Act, which punished the press for publishing ‘false, scandalous, and malicious writing’ against the government or its officials. The president wanted to muzzle press criticism of America’s conflict with revolutionary France, whose seditious agents he saw everywhere. Among the dissidents the state arrested were Benjamin Franklin’s grandson, who edited an anti-government newspaper, and a blunt citizen who saw townspeople in Massachusetts welcoming President Adams with a cannon salute and remarked to the man standing next to him that he would not mind if they fired the cannonball through the president’s ‘ass’.
The panic passed, and Congress repealed the authoritarian law. But the Supreme Court was packed with Adams’s supporters, and it never declared the punishment of ‘seditious’ newspapers unconstitutional. It was still open for public officials to do what Sullivan had done, and haul his critics before the courts.
Wechsler and the
New York Times
showed that Adams’ two immediate successors as president, Thomas Jefferson and James Madison, as well as many others, regarded Adams’ political censorship of ‘seditious’ newspapers that criticised the state as a clear breach of the First Amendment and an attack on democracy. ‘The censorial power is in the people over the Government,’ said Madison, ‘and not in the Government over the people.’ Moreover, Wechsler could quote a string of rulings by American judges from succeeding decades who had defended freedom of speech and of the press against the state. (My favourite being from a judge in the 1940s, who dismissed contempt of court accusations against a union leader by saying, ‘[I]t is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.’)
The Supreme Court agreed. Debate on public issues should be ‘uninhibited, robust and wide-open’, it ruled. If the government and its officials were on the receiving end of ‘vehement, caustic and sometimes unpleasantly sharp attacks’, that was the price they paid for exercising power in a democracy. They had to learn to live with it.
The judges did not force the American government to reveal all, and leave it powerless to punish those who leaked its secrets. Instead they established new rules for the conduct of public debate. They were careful not to allow absolute liberty. Private citizens can sue as easily in America as anywhere else, if writers attack them without good grounds. Poison pens are still punished, and individual reputations are still protected. If, however, a private citizen is engaged in a public debate, it is not enough for him or her to prove that what a writer says is false and defamatory. They must prove that the writer behaved ‘negligently’. The judiciary protects public debates, the Supreme Court said in 1974, because ‘under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges but on the competition of other ideas.’
Finally, the judges showed no regard for the feelings of politicians and other public figures. They must prove that a writer was motivated by ‘actual malice’ before they could succeed in court. The public figure must show that the writer knew that what he or she wrote was a lie, or wrote with a reckless disregard for the truth. Unlike in Britain, the burden of proof was with the accuser, not the accused.
The US today is not a free-speech utopia. Various states have had to pass laws against SLAPP actions – ‘strategic lawsuits against public participation’. The corporations which brought cases of libel, breach of confidence, invasion of privacy or conspiracy did not expect to win, but to slap down protesters with expensive litigation that could drag on for years. But the black students who sat in their best suits and dresses at whites-only lunch counters could still claim a victory. They had opened up American society, and forced the judiciary to recognise a paradox. Free societies living under the rule of law can only be free if the law’s reach is limited. As with religion, the political arguments of a democracy are too important to allow the courts to police them.
If the disputes of 1960s America feel like ancient history, think about the similarities between yesterday’s white supremacists and today’s super-rich.
The racist expected deference because he was in a superior position. To his mind, the colour of his skin should guarantee that others ‘respect’ him or face punishment. Flatterers surround today’s wealthy, whether they are subordinate employees, supplicants looking for favours or politicians looking for campaign donations. They spend large parts of their professional lives hearing deferential voices, and regard criticism when it comes as an assault on their dignity.
A white politician or bureaucrat in the 1960s upheld a segregationist political order and knew that the political order would protect him if he played the game. A critic could not take a case against him to any regulatory institution – the Alabama courts, the state police or the state legislature. If you attacked one part of the system, you attacked it all. A modern employer knows that rival firms will refuse to employ a whistleblower if he fires him. Even if the information the whistleblower releases is in the public interest or to the benefit of shareholders, an attack on one employer is an attack on every employer.
In the courts of the old South, a white skin conferred an overwhelming advantage. In the British courts, money confers an overwhelming advantage. In neither instance do the courts accept that the powerful and wealthy have the means to refute or rebut criticism without the need for legal sanctions.
The most striking continuity, however, lies in the failure to look at the wider interests of society. For it takes an almighty effort to make an established order recognise that free debate, even hurtful, raucous, inaccurate and disrespectful debate, causes less harm than the bludgeon suppression.
John Stuart Mill is an easy philosopher to love, but a hard one to follow. On first reading, his harm principle, that the ‘only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others’, seems mild when set against the vast systems of the Continental philosophers. While his nineteenth-century contemporary Karl Marx dreamed that the workers would free themselves from wage slavery, and unleashed the slavery of revolutionary tyranny as a consequence, Mill dreamed of allowing people to do as they pleased as long as they did not harm others. What could be more polite – more English – than his injunction to mind your own business? Do not be deceived by the apparent modesty. Mill’s ideas are at the root of more revolutions in human behaviour than Marx and all his followers managed.
Mill’s father, the utilitarian philosopher James Mill, brought up his son to be a genius. Young John could speak Greek by the time he was three. By the age of eight, he was reading Plato’s dialogues, and by thirteen he was helping his father compose a treatise on political economy. His autobiography describes the mental breakdown his hothouse childhood induced, and hints with Victorian reticence at how he fell for Harriet Taylor, a married woman, who was the love of his life and his salvation.
Under her influence, he became the first British Member of Parliament to make a case for the emancipation of women. If men should have the freedom to express themselves and experiment with their lives as long as they did not harm others, Mill argued, why should not women enjoy the same rights? He dismissed the objection that women’s natures meant that they were not fit to exercise freedom. Under the condition of oppression, women could not reveal their true nature; and until equality came, ‘no one can possibly assess the natural differences between women and men, distorted as they have been’. Nor would he allow the customs of the past to dictate the future, if custom did more harm than good. The religious fanaticism of our time devotes much of its energy to keeping women down. Its bombs and thunderous declarations are an attempt to silence Mill’s argument that nature and tradition cannot justify the suffering caused by male oppression.
The fight for homosexual equality is also a Millian struggle. His harm principle held that what consenting adults did in private was no business of the state. Even if the rest of society disapproved of pre-marital, promiscuous or gay sex, even if it thought that homosexual love harmed homosexuals, it had no right to intervene. Notice how broadly Mill set his harm principle. It is not enough to say that people who hate the idea of homosexuality suffer mental distress at the knowledge that it is legal. They must suffer actual harm, and as they do not, they cannot prohibit it. His most glaring failure was one that the colonial subjects of Queen Victoria would have noticed at once. Mill gave freedom to people in the ‘maturity of their faculties’, and did not include blacks and Asians as full adults. Just as Milton could not extend liberty to Catholics, so Mill could not extend it to the subject peoples of the British Empire.
If today’s governments took Mill seriously, they would end the ‘war on drugs’. They would remove restrictions on all pornography apart from child pornography, whose producers by definition harm children, who cannot give informed consent. They would have to allow incest between consenting adults – although I think we could rely on instinctive human revulsion to prevent it – and they would have no argument against public nudity. As I mentioned, Mill is not an easy philosopher to follow, but look at the misery and corruption caused by the war on drugs before you are tempted to dismiss him.
Mill did not believe in absolute freedom of speech – no one can, because it denies man’s nature as a social animal – instead he argued for the limits on censorship to be set as broadly as possible. He and Harriet Taylor went over the arguments in
On Liberty
repeatedly before publication, and chose their example of where the boundary should be set with care. If agitators claim that corn dealers starve the poor, they said, the law has no right to punish them. Only if they say the same to an angry mob gathered outside a corn dealer’s home, or hand placards to the mob denouncing the corn dealers’ wickedness, can the state intervene. Mill does not say that the law should punish the incitement of hatred against corn dealers. Even if their critics made their neighbours despise them as rapacious capitalists, even if the criticism was unfair and caused them financial harm, corn dealers could not go to court. The law should restrict itself to punishing speech that directly provokes crime – incitement to murder, incitement to violence or incitement to arson. It should not punish incitement to hatred, because it is not a crime to hate people, any more than it is to envy them or to lust after them.
The enemies of Mill’s liberalism were once on the right, and in many parts of the world they still are. Conservatives said Mill could not brush aside the views of the societies, tribes and communities just because individuals seeking to break with taboos were not harming others. When Britain discussed legalising homosexual acts between consenting adults in the 1950s, on the Millian grounds that what gays did in the privacy of their bedrooms was no one’s business but their own, the conservative jurist Patrick Devlin said that the law was still entitled to punish them. ‘Invisible bonds of common thought’ held society together, he argued, and individual homosexuals must accept legal penalties because no one could live apart from society. Opponents of social conservatives make a mistake when they think they can ignore these objections or overcome them without effort. The conservative may well suspect that his God is a fabrication and his holy book is a fable, but he will none the less fear for the future if the traditions and taboos his society holds are cast aside. The best liberal response is to reassure conservatives that change will not be as bad as they think – in all likelihood their daughters will not run off with the first man they meet, and their sons will not start trying on their wives’ dresses. If they look as if they might, social conservatives remain free to try to persuade them that they are wrong. All that is forbidden to them is the argument that if a majority in a society finds the law’s tolerance of gay lovemaking or women’s emancipation revolting, the majority is entitled to demand retribution. If the knowledge that others are engaging in taboo behaviours inflicts a psychic wound and provokes the deepest feelings of revulsion, that’s tough. Conservatives just have to learn to live with it.
Today’s liberals lack the self-confidence to say the same about intellectual freedom, and have become as keen on censorship as conservatives once were. They want to silence those who pose no direct harm comparable to Mill’s rabble-rouser urging on the mob outside the corn dealer’s home. Like homophobic conservatives, who worry that if societies’ taboos go, the promotion of homosexuality will turn young people gay, they worry that if the law allows unpalatable views to escape unpunished, hatred will turn to violence. Hence, they support laws against incitement to racial and religious hatred in Britain and across Europe, against Holocaust denial in Germany and Austria, and against Holocaust denial
and
denial of the Armenian genocide in France. Hence, they enforce speech codes that mandate the punishment of transgressors in the workplace and the universities. Few liberals have the confidence to say that free speech, like sexual freedom, would not create a terrible society, because they do not trust their fellow citizens. They do not realise that most people in modern democracies do not harbour secret fascist fantasies, and that the best way to respond to those who do is to meet their bad arguments with better arguments.
In trying to find the best argument against censorship, John Stuart Mill wanted to be true to his father’s utilitarianism – that happiness is the only good and pain the only evil – and to his own respect for intellectual freedom. He could not do both. His formulation that we should allow the widest possible freedom to argue because it is ‘Better to be Socrates dissatisfied than a fool satisfied’ may affirm the desirability of knowing thyself and knowing as much as you can about the world, but it is not a utilitarian calculation. Fools may well be happier in their ignorance than wise people are in their knowledge; certainly, there is no way of proving that they are not. Removing censorship and challenging taboos allows people to live as autonomous adults. Such liberations may be desirable – in my view, they are essential – but they are not always happy or free from pain.
Mill is more convincing when he moves from happiness to harm. We lack the certainty of the Victorians that the world can be made better, but we know that it can be made worse. Breaking with Mill’s insistence on the widest possible freedom for individuals is one of the surest ways of doing it.
We are relearning a lesson we ought never to have forgotten: you cannot be a little bit free. You cannot have one law for civilised people who read the
New York Times
and know the difference between a Bordeaux and a Burgundy, and another for beer-swilling bigots who watch Fox News. Saul Bellow explained why when he said, ‘Everybody knows there is no fineness or accuracy of suppression; if you hold down one thing, you hold down the adjoining.’
Equality before the law means what it says. As Bellow understood, those who demand the suppression of others must expect to be suppressed themselves. Naïve liberals were once comfortable with punishing expressions of racism, homophobia and misogyny. Whereas Mill would only allow the police to arrest a demagogue whipping up a mob outside a mosque or a gay bar, they wanted to regulate writing and speech which did not directly cause crime. To use the phrase of the philosopher Joel Feinberg, they replaced Mill’s harm principle with an ‘offence principle’, which held that societies are allowed to punish speech that people find exceptionally offensive.
Leave aside if you can the sensible objection that the offence principle justifies courts censoring political debates – for do not many politically committed people find the views of their opponents ‘exceptionally offensive’? – and instead look at the boomerang that has whirled back through the air and smacked the children of the 1960s in the face.
They knew that racists, homophobes and misogynists were bad people with terrible ideas, and too few worried about the ground they were conceding when they accepted excessive restrictions on free speech. They ought to know better now. Because they decided that they must do more than fight bad ideas with better ideas, and allowed ‘offence’ to a faith or racial group, rather than actual harm, to be grounds for censorship, they could not defend liberal principles against Islamists who were also racists, homophobes and misogynists. The same failure to look at wider consequences bedevils the other examples of censorship discussed in these pages. There are many excellent reasons for maintaining corporate secrecy, but the excessive faith in managerial command and control has led to criticism being silenced, and left us with half-ruined societies that still do not dare think about new ways to bring transparency to the workplace. The feudal assumptions behind libel laws are not all bad. Judges have punished newspapers which deserved chastisement, and deterred editors from publishing nasty and worthless work. If democracies in Europe and beyond were to import the principles of the US First Amendment, the amount of rubbishy and ‘exceptionally offensive’ work in circulation would grow. Preventing its publication by maintaining current laws seems as worthy as banning hate speech or preventing the publication of commercial secrets, until you remember Bellow’s warning that truth and falsehood, the moral and the immoral, do not come in separate packages but are mixed together. You cannot hold down one without holding down the other.
The Inaccuracy of Suppression
Of all the notions least worthy of legal protection, the idea that a chiropractic therapist can cure a patient’s sickness by pounding his joints with low-amplitude, high-velocity thrusts must be close to the top of the list. The therapy is as rough as it sounds – to imagine a chiropractor at work on a joint, hold your hand flat as if you are a waiter carrying a tray of drinks, bend it backwards below the horizontal as far as you can, then hit it with your free hand. The theory behind the treatment is equally disquieting.
Daniel David Palmer already had an interest in spiritual and magnetic healing when he moved from Canada to Iowa in the 1860s. Once established in the US, he invented his own form of the laying on of hands. In September 1895, he met a deaf janitor by the name of Harvey Lillard. Palmer noticed that Lillard had a vertebra racked from its normal position in his spine. Lillard roused Palmer’s amateur curiosity when he told him that he had lost his hearing seventeen years before, when he had bent over and heard something pop in his back. ‘I reasoned that if that vertebra was replaced, the man’s hearing should be restored. With this object in view, a half hour’s talk persuaded Mr Lillard to allow me to replace it. I racked it into position by using the spinous process as a lever and soon the man could hear as before.’
Palmer had performed the founding miracle of the chiropractic faith, a wonder his disciples venerate to this day. With typical bombast, he said that if all he had achieved was the healing of the janitor, ‘This of itself, should have been hailed with delight.’ But new wonders kept on coming. As Palmer manipulated joints and shoved backs, he convinced himself that he had found a cure for deafness, heart disease and just about everything else. Displaced vertebrae caused 95 per cent of all diseases, he announced. Viruses and bacteria were irrelevant. The key to the cure of all sicknesses lay in the back. To be specific, he concluded that ‘innate intelligence’ – a substance unknown to science – flowed up and down the spine. A chiropractor who manipulated its joints could therefore heal the body and for good measure ‘correct abnormalities of the intellect as well’.