[[This post concerns censorship.  By ‘censorship’ I mean the exercise of power by one person or party that limits the free expression of belief or opinion by another person or party.  The ‘expression’ usually is in the form of speech, written or oral, but might also include art, gestures, music, or anything else that expresses opinion, viewpoint, or belief.

Prudent Christians in the United States should distinguish the issue of censorship in general and in principle from the issue of censorship in the United States at present under actual, prevailing circumstances.  That is, the advisability and morality of censorship in abstract should be distinguished from the advisability and morality of censorship in a particular, concrete situation.  Circumstances often change cases.  This post, therefore, will have two main parts.  The first part will consider censorship within the United States, as it actually has been and is, and also, more generally, within the horizon of the modern liberal regime that prevails in North America, Western Europe, and some other places.  The second part of this post will consider censorship without the practical and prudential limitations set by the existence of the modern liberal regime.]]

 Censorship and freedom of expression in the liberal regime

The reasons supporting a general freedom of expression in the modern, liberal regime are many and are given powerful formulation by writers from John Milton and the early English and Scots ideologues, through many of the American Founding Fathers and Framers, to John Stuart Mill and other great liberal Victorians, and so down to modern libertarians or near libertarians.  The freedom in question is almost never thought to be absolute and entirely without qualification. 

One qualification is suggested by the subtitle of Milton’s famous Areopagitica[i]:  ‘A Speech for the Liberty of Unlicensed Printing’.   Milton’s clearest concern is to remove official, prior restraint and censorship of publication in the form of licensing requirements for books.  Milton is concerned, indeed, to protect liberty of thought and publication in general:  ‘who kills a man kills a reasonable creature, God’s image; but he who destroys a good book, kills reason itself, kills the image of God, as it were in the eye.’ (Page 720)  Milton is no libertarian, however:  he acknowledges that books ‘do contain a potency of life in them to be as active as that soul was whose progeny they are….I know they are as lively and as vigorously productive as those fabulous dragon’s teeth; and being sown up and down, may chance to spring up armed men.’  (Ibid.)  Those armed men may be dangerous.  Killing a good book is wicked, but Milton knows that there are good books and bad books. 

Milton, nonetheless, opposes the ‘Spanish policy of licensing books’ (p. 749), whether practiced by the Roman Inquisition or by the licensing monopoly of Archbishop Laud.  While freedom of expression may stir up ‘many sectaries and false teachers…busiest in seducing’ the ignorant and the impressionable, yet ‘God then raises to his own work men of rare abilities’ to counter falsehood.  It is dangerous ‘to stop their mouths because we fear they come with new and dangerous opinions’, but ‘woe to us while, thinking thus to defend the Gospel, we are found the persecutors’ of the same (p. 748).  It is better that ‘many be tolerated, rather than all compelled’ (p. 747).  Nonetheless, immediately after proposing his view of what is better, Milton adds, ‘I mean not tolerated popery and open superstition, which, as it extirpates all religions and civil supremacies, so itself should be extirpate’ (p. 747).  Nor, it is clear, is Milton opposed to curtailing free expression of blasphemy, gross immorality, and many other views.  Milton’s position is for a greater liberty of expression, but the desirable liberty is limited.  Though Milton is no libertarian, his general plea for the removal of prior censorship is a landmark in the liberal cause. 

While Milton was a Christian of sorts, the asserted right to free speech and free expression often has a negative, skeptical foundation.  The proponent of liberal, free, largely unconstrained speech often assumes that the truth is not simply or very widely understood or even patient of understanding.  In the face of ignorance of truth, and given doubt concerning even the possibility of knowing the truth, the liberal often argues that an open, free marketplace for ideas will at least prevent the easy suppression of the truth or the oppressive imposition of falsehood.  Other, less skeptical liberals likewise tend to assume that the free competition of ideas and open, unconstrained debate will tend to favor the true, the beautiful, and the good.  The true, the beautiful, and the good may not be initially and obviously known but will at least be approached best, in an asymptotic fashion, through free expression and through unconstrained debate and discussion.  Liberals sometimes believe, or assume, that the true, the beautiful, and the good are attractive, and will tend to do well under liberal conditions.  The liberal often assumes that over time freedom will prevent the suppression of the true and the good and in fact will permit them to flourish. 

Even persons who are not at all skeptical about the known status or knowability of the truth may favor a liberal approach to speech and expression as a matter of charity and humility.  I may think that John is in error, or at any rate that John is not very likely to be the proponent of truth and wisdom, but nonetheless also believe that John should be treated with kindness and patience and be given a calm and respectful hearing.  I also might do well to assume that even if John’s views are largely erroneous, I may learn from listening to him and from at least considering that he may have insights that I lack.  Orthodoxy often emerges best and most clearly from the consideration of and response to heresy. 

Furthermore, the proponent of a very liberal approach to speech and expression also may argue that his or her liberality will best produce social peace and public tranquility.  The toleration of the self-expression of someone in error, even of someone in serious error, may provide a kind of safety valve.  A man may quietly accept a political or social loss if he feels that he has at least been given a chance to express himself and to have his say.  Few of us expect to win all the time.  Most of us, however, while knowing that we may not always get our way, at least would like to think that we have had a hearing.  And an opponent who is given a free and fair hearing may be more amenable to later persuasion of my views than if he is embittered by a previous suppression of his views. 

Finally, people who suspect that their own opinions are out of favor, either with those in power or in popular opinion, whether in fact now or potentially in the future, might also think it prudent to encourage a liberal approach to speech.  A right to engage in censorship is a weapon that one might imagine turned against himself.  Perhaps such weapons should not be allowed. 

Such arguments for a generally liberal position, as I have said, reach back to the 17th century and before.  I do not need to recapitulate all of these arguments in detail.  The writers I have already noted can speak for themselves.

The approach to freedom of speech and expression in the American regime is largely rooted in the assumptions of the classical liberal tradition.  The United States has always qualified the freedom of speech and of press, particularly in times of war and in cases of imminent physical dangers and threats to public safely.  The tendency of the regime, despite qualifications and exceptions, has been to expand liberty of speech and to remove constraints on expression, particularly constraints imposed by government power. 

Liberals usually understand that freedom of expression can be constrained not only by government action but also by private actors and by other limiting factors.  A poor woman may well have less ability to disseminate her opinions than a woman who can afford to buy a radio station or printing press.  An uneducated, inarticulate man is more limited in his ability to share his opinions than an educated and fluent man.  Likewise, the owners of news media outlets and of great technology companies, even without any government involvement, can prevent or limit others from freely communicating by withholding access to many of the means of communication.  Liberals usually are more tolerant of such private censorship and of such practical limitations on expression than of censorship imposed by governmental power.  Modern radicals and ‘progressives’, however, are more likely than traditional liberals to note the practical, actual, and often systematic limitation of effective capacity for free speech that flows from such factors as poverty, poor education, low social status, and lack of privilege. 

Classical liberals do tend to accept some proper limits on freedom of expression even by governments.  In particular, such limits tend to exist in cases of imminent or a ‘clear and present’ danger.  The classic limiting example is someone yelling ‘Fire!’ in a crowded theater.  In such a case one person’s freedom can lead to the death or the severe qualification of the freedom of others.  This limit to free expression is readily understood in principle, even if in some cases its applicability may be debated. 

In the United States another limit to protected free expression was established by the Supreme Court in the so-called Brandenburg test, established in Brandenburg versus Ohio in 1969.  The court determined that inflammatory speech that advocates and intends to cause illegal behavior may lawfully be restricted in some cases.  In Brandenburg the Court considered a case involving a leader of the Ku Klux Klan, Brandenburg.  In a speech to his fellow Klansmen, after the use of several racial slurs and attacks on Jews and public officials, Brandenburg said that ‘it’s possible that there might have to be some revengeance [sic] taken.’  In its decision the Court determined that the government may prohibit speech advocating the use of force or crime if the speech satisfies both elements of a two-part test:

  1. If the speech is ‘directed to inciting or producing imminent lawless action’; and,
  2. If the speech is ‘likely to incite or produce’ such lawless action.

The Brandenburg opinion ruled that the government may not forbid even speech that seems to advocate lawlessness or the overthrow of the government unless the speech meets this two-part test of purposeful incitement of such action and of actual likelihood of incitement.  Simply advocating a viewpoint without encouraging people to act upon that advocacy is permitted by the Court in Brandenburg.

This two-fold test seems to address, first, the matter of intent.  An unintended, inadvertent, or accidental connection with some lawless action would not seem sufficient to justify official censorship.  Secondly, the test seems to address the actual likelihood or real danger of the speech.  Casual, entirely ineffectual speech or speech in a setting entirely unlikely to have any harmful effect would not seem to be subject to prohibition under Brandenburg.

Prohibition becomes most likely in fact in periods of grave public alarm such as wartime.  Not surprisingly in such times, people holding unpopular views or members of disfavored minorities are most likely to be deemed an ‘imminent’ danger or to be accused of ‘inciting’ lawless and harmful behavior, and then to suffer restrictions on their freedom of expression.

During all American wars, including the Revolution, the War of 1812, the Civil War, the Spanish-American War, World War I, and World War II, and the ‘Cold War’, civil liberties, including freedom of speech and expression, have been abridged.  Abraham Lincoln during the Civil War famously suspended habeas corpus, ignored judicial decisions he disliked, and stifled free speech.  20th century examples of such restrictions abound.   The Brandenburg case arose because Ohio attempted to enforce a law passed during World War I to curb the influence of socialists, pacifists, and anarchists during a popular war.

Alexis de Tocqueville, as an example of the ‘despotism of the majority’, notes a case in Baltimore during the War of 1812.  A newspaper opposed to the war excited the anger of the pro-war party.  ‘The mob assembled, brake the printing-presses, and attacked the house of the editors.’  The militia was called out to deal with the mob but refused to obey the call.  The editors were put in prison for their own protection.  Then the mob attacked the prison, and the militia again refused the call to maintain order.  The mob seized the editors, one of whom was ‘killed on the spot, and the others were left for dead’.[ii]  A theoretical right to freedom of the press was entirely ineffective in the face of the actual and violent tyranny of the majority.  Elsewhere Tocqueville argues that the despotism of the majority usually in America is exercised much more gently, through social pressure and the powerful effect of public opinion.  But the student of liberalism must reckon with the difference between theoretical liberties and effective or actual liberties.

Liberty of expression is not the only right that becomes somewhat fragile or notional in times of emergency or public excitation.  Restrictions of other civil rights and liberties during times of war, conflict, and public alarm also abound and are well-known and have at least an indirect effect also on freedom of expression.  The internment of Japanese-Americans in the western United States during World War II, supported by such liberal luminaries as Franklin Delano Roosevelt and Earl Warren, is one well-known example.  Likewise, the abridgement of the voting and free speech rights of African-Americans under the Jim Crow system rendered those rights merely theoretical and in fact often simply inoperative.

Alexander Hamilton, in the 84th of the Federalist Papers, while arguing against a bill of enumerated rights, notes the actual significance of public opinion regarding freedom of the press:

What is the liberty of the press?  Who can give it any definition which would not leave the utmost latitude for evasion?  I hold it to be impracticable; and from this I infer that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.’[iii]

Hamilton’s observation explains the frequent, actual abridgement of liberties by the tyranny of the majority or by the powerful, particularly in times of great tension.  Paper rights matter less than powerful public sentiments and the self-restraint of the governing class.

Frequent, or at any rate periodic, violation of a social ideal or theoretical right, however, does not prove that the right is mistaken or bad.  There is no doubt that the American regime is in general liberal in its theoretical assertion of a right to free expression and freedom to speak and publish.  The chief qualifications of this asserted right, within the horizon of the regime, involve:  first, greater suspicion of censorship when exercised officially and by government; secondly, cases involving imminent danger or incitement to lawless or violent behavior; and, thirdly, the practical limit of access to means of expression due to poverty, lack of education, or similar causes.

Assuming this liberal worldview, the case in 2020-2021 of the ‘banning’ of the use of such social media as Facebook and Twitter by Donald Trump, while still president and then after the end of his presidential term, is an interesting case.  A Facebook friend of mine argues that

What Trump did was to both direct speech to incite an imminent lawless action and incited and produced a lawless action.   It is clear to me that his speech was not protected First Amendment speech, but lawless speech and Facebook, Twitter, etc. did what was proper and legal.  He has used and abused these platforms for four years by saying untrue, defamatory and inflammatory things hourly. No one else would have gotten away with that and I am glad he no longer has those platforms.’ 

Opinions vary, of course, but it seems to me that the speech in question was not ‘direct’ in the sense of being clear and unmistakable.  If one assumes that the then president intended to incite unlawful and violent behavior, he did so in an ambiguous fashion.   If I say, ‘Be peaceful,’ and say, ‘Make things hot for our enemies’, I am not being direct and clear, but inconsistent, confusing, and indirect. 

That, however, is a secondary matter.  What is more notable is that the censorship of Trump is not limited and is not targeted narrowly to prevent incitement to imminent lawless action.  Twitter banned the former president ‘for life’, which is more or less exactly the opposite of preventing an imminent and immediate threat. 

Consider again the Brandenburg case.  Brandenburg suggests, if its two-fold rule were satisfied, that a given act of speech or of speech in a narrow and specific context may lawfully be prevented or restrained.  The KKK leader, however, was not banned from public speaking ‘for life’ or told that he could never write a letter to the editor or publish an article or book, much less never write a letter or article or give a speech about anything whatsoever.  In contrast to the limited and targeted qualification of free expression permitted by Brandenburg, ‘Twitter bans Trump for life’ clearly goes far beyond imminent danger and is instead exceptionless and permanent.  Twitter has done all that is within its power to censor and silence one of its users for all time.  If one stipulates that Trump did speak or write in order to incite others to behave illegally and violently, then the Brandenburg rules might well justify the temporary censoring of the comments in question.[iv]   Targeted and limited censorship is one thing.  Banning all of someone’s speech for life to the fullest possible extent of the censor’s power is something else.

My Facebook friend’s characterization of Trump’s speech as more or less constantly ‘untrue, defamatory and inflammatory’ is not something with which I disagree.  Trump often said and wrote things that are not true and clearly enjoyed being provocative and inflaming his opponents.  But politicians and politically active people with great regularity find that their opponents’ opinions are untrue, offensive, and inflammatory.  The near universality of such negative partisan findings explains why in the United States it is difficult for major office holders and powerful people in general to win cases alleging defamation, slander, or libel.  Political passions often run high, and many powerful politicians regularly outrage their opponents into careless, exaggerated, and inflamed denunciations.  It is difficult to see how justifying censorship for life, at least by powerful private media companies, of a major public figure, can be anything other than support for censorship in principle.  When the censoring companies enjoy near-monopoly status, support for their behavior amounts also to a general defense of widespread censorship of offensive or merely unpopular opinions. 

The observations of Hamilton and Tocqueville noted above suggest that public opinion and a general social spirit are key to ensuring the actual effectiveness of theoretical rights.  When people who think of themselves as liberal and tolerant in fact become defenders of severe limitations on freedom of expression, then the actual freedom of unpopular opinions and of dissenting voices is in grave danger. 

I am told that such abandonment of liberal assumptions is now widely supported by younger journalists, academics, and people in general.  Newsrooms, apparently, now are often arenas in which older, rather consistently liberal journalists resist the illiberalism of ‘woke’ and ‘cancel’ culture.  The censoring of an opponent is easy to pass over if that opponent is widely seen as unpleasant, absurd, or dangerous.  But people much more likeable, articulate, and admirable than Donald Trump are now in the crosshairs.  It seems that the historic victory of liberal assumptions in the United States and similar countries is passing and that a new censorship regime is rising. 

If classical liberalism is dead or dying or quite sick, perhaps there is a need to reconsider older, non-liberal assumptions about freedom of expression.  If the censors are returning, it surely matters who they are and what ideas they have concerning virtue and the good and the limits they think are appropriate to freedom of expression.  If classical liberalism is wrong, or at any rate is on the wane, why should we assume that its more radical offspring (‘progressive’, ‘woke’, ‘intersectional’ grievance-mongering) is right?  After all, classical liberalism and illiberal ‘progressivism’ in fact share many roots.  Perhaps it will be good now to reconsider pre-modern, conservative and Christian systems?  What are we to make of freedom of expression and censorship if we look beyond the horizon of Locke-land and the American regime?   

[i] John Milton. Areopagitica:  A Speech for the Liberty of Unlicensed Printing, to the Parliament of England.  In John Milton:  Complete Poems and Major Prose.  Indianapolis:  Bobbs-Merrill Press, 1976 (1957).  Edited by Merritt Y. Hughes.  Pages 716-749. 

[ii] Democracy in America.  Volume I.  New York:  Vintage, 1945.  Page 271. 

[iii] The Federalist Papers.  Alexander Hamilton, James Madison, John Jay.  New York:  Mentor, 1961.  Edited by Clinton Rossiter.  Page 514. 

[iv] I understand, of course, that Donald Trump is a very wealthy man who might buy a newspaper or television stations or airtime.  The point is not that one man has been muzzled entirely.  The point is the ham-fisted exercise of censorship by companies with near monopoly power.

One thought on “Censorship, Part I

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