Article by Steven Alan Childress
The occasion of dedicating a new building virtually requires tired but true metaphors about structures, edifices, and facades. Thus, I have volunteered to be the one to use them. Tradition.
So much of First Amendment free speech analysis and precedent is indeed built upon a unifying foundation: the fear of censorship. In turn, a developed structure of First Amendment doctrine is largely a judicial reaction to the fact or threat of censorship. Beyond doctrine, sheer judicial attitude, as well as free speech theorizing on the part of scholars, apparently boils down to creating a rampart—admittedly uneven—against censorship.
Although speech is traditionally seen as a good with its protection having certain positive values (those values and their relative weights then subject to much substantive debate), lately many scholars have begun to focus a clarifying attention upon the negative value of censorship, building their theories and suggested rules upon what Frederick Schauer has termed the “back side” of the First Amendment. The most positive value of protecting speech may well lie in deflecting or muting the effects of its biggest danger, governmental suppression of speech. Even the more traditional focus on the “front side” of the value of speech almost always accounts for the evil of censorship, at least as a means to protect the positive substance perceived.
Part of all such analyses depends upon a differentiated inquiry into the problem and questioned reality of self-censorship. Actual and direct state censorship, the thinking seems to be, is without doubt an evil to be avoided at least through judicial means; it empowers the courts to react with unbridled resolve; and it can only exist with the most extreme of governmental justifications. Yet it also appears that the arguments for judicial intervention are more strained—they carry less urgency and resolve—where the evil is the more indirect self-censorship involved when speakers mute themselves out of a projected fear of official or social response to the desired expression. To be sure, the clamor for protection often follows, but it is seen as a different structure from “real” censorship, allowing different modes of response and perhaps a greater sensitivity to the needs of the speech-spoiler in such situations.
At this point, courts and scholars usually (though sometimes grudgingly) make an analogy to “real” censorship, pronounce the effects as similar and also bad, and give the speaker at least partial relief, protection, or theoretical assurance that he or she has a decent First Amendment case. The area of overlap with actual censorship then is protected, at least as far as the observer recognizes the overlap. Thus, the analogy supposedly works, as far as it goes—which means as far as the court, scholar, or critic perceives it to go. Self-censorship is housed in its own doctrinal building, with important consequences to particular cases as well as to the general development of free speech law.
My contribution to this edifice is an attempt to redirect the inquiry into censorship, pure and simple. I argue that self-censorship, as such, does not exist; it is empty of all meaning except that which already exists for censorship generally. If the distinction among the two censorship structures is illusory, and they are found to live at the same address, then judicial and scholarly reactions to the perceived difference are misplaced. Doctrinal and theoretical responses to the negative value of censorship can only be coherently developed once the facade of a difference is removed and the concept of censorship is unified.
The result may not necessarily be more reflexive protection of speech, since courts will still account for the varying interests and dangers at stake, and may well find the speech to be unworthy of protection or the action not to constitute unconstitutional censorship. But in the process, at least, they may begin to see those interests and dangers as undifferentiated for self-censorship. Similarly, perhaps not too much actual doctrine would change, since many times the law has already been built upon that analogy which I now claim to be a unity.
Nevertheless, if the fear and prevention of censorship is at the foundation of much free speech law, and censorship in general offers some unifying structure to that law, then the further unification of the concept of censorship itself may lead to a better—more coherent, more meaningful, more functionally accurate—if not stronger basis for the future development of law and theory in this important area of law.
About the Author
Steven Alan Childress. Professor of Law, Tulane Law School. B.A., University of Alabama; J.D., Harvard Law School; M.A., Ph.D. (Jurisprudence and Social Policy), University of California at Berkeley.
Citation
70 Tul. L. Rev. 1969 (1996)