Democracy and Censorship

Definition: Democracy is government by the people, with majority rule being a guiding principle

Significance: Of all forms of government, democracy is arguably the most antithetical to censorship

Democracy requires the wide dissemination of politically relevant information, argument, and ideas for consideration of citizens, who as collective sovereign, cannot deliberate adequately without freedom of the means of dissemination of information. There are various types of democracy, however, that must be considered. Democracy is possible in several forms. Liberal democracy, for example, is democracy that protects nonpolitical expression in addition to protecting political discussion. In a liberal democracy, freedom to pursue private expression and interests is protected by law. But democratic regimes may be nonliberal or antiliberal, and, while protecting political expression, they may censor or otherwise prohibit a range of nonpolitical expression. Thus, censorship of the arts is entirely consistent with nonliberal democracy, as proposed by Jean-Jacques Rousseau, who countenanced the abolition of the theater in his native Geneva to preserve its mores.

Liberal Democracy and Censorship

Only with the development of modern liberalism in the eighteenth and nineteen centuries was a private sphere recognized that, within limits, was considered beyond legitimate government interference. A perennial issue in liberal democracies, including the United States, is what those limits should be. That they should be wide has acquired broad acceptance. American jurist Benjamin Cardozo famously remarked that “freedom of thought and speech” is “the matrix, the indispensable condition of every other form of freedom.”

The latitude of definition of forms of private expression has changed over time in the direction of greater liberty. In the view of some, this freedom has been taken beyond the boundary where liberty becomes license. Others back the wide latitude in personal expression championed by English philosopher John Stuart Mill in his book On Liberty (1859).

Censorship among Western democracies varies, although wide freedom regarding political speech is common to all. There are, however, limits on speech in Western liberal democracies. In some countries, hate speech and some forms of political advocacy that are particularly reprehensible are outlawed. Germany, a liberal democracy, does not tolerate advocacy of Nazism, for example. Western nations also differ on nonpolitical subjects, especially erotica. In the twentieth century, Great Britain, Canada, and Ireland have had significantly less liberty in this area than the majority of Continental democracies.

In most parts of the United States there is great latitude in tolerated private expression, although individual communities may prohibit certain public displays and practices or the sale of items deemed indecent or obscene. Everywhere, however, there are “time, place and manner” restrictions on expression. Expression of outlandish political speech is tolerated, for example, but not with loudspeakers in sleeping neighborhoods at midnight.

American law does tolerate some requirements of official approval for certain forms of expression. Radio and television broadcasting must be licensed, as well as parades, demonstrations, and distributing leaflets. But the courts do not allow official discretion over what is expressed.

With respect to freedom of political expression, the U.S. Supreme Court’s opinion in New York Times Co. v. Sullivan (1964) has become the centerpiece of American law. In this landmark case, the Court allowed errors to be made with impunity in political speech. False statements must be allowed, the Court reasoned, if freedom of expression is to be protected.

Censorship prior to publication, known as prior restraint, is usually not allowed in liberal democracies, although there are exceptions. American films were once subject to prior censorship. In Britain, an official board of censors reviews all films.

National Security Issues

Issues of prior restraint have been most pronounced in cases involving national security. Secrecy has in some instances undoubtedly been necessary for preserving the state’s, and, usually, citizens’ safety, typically in times of war. Diplomacy, it may be argued, requires considerable secrecy, as does development of weapons for defense.

However, the degree of secrecy required for security of the governed, rather than the power and convenience of fallible governments, is hotly disputed. The burden of historical experience is that, if allowed, governments tend to aggregate powers to themselves far beyond what is necessary, using such excuses as national security to cloak questionable or reprehensible actions.

An unfettered press can hope to challenge the abuse and aggregation of the powers of modern governments before the bar of public opinion, but in certain situations the publication of state secrets may wreak catastrophe. In this regard, war has been a principal occasion of censorship in democracies. A basic norm, however, is that democracy does not cease during wartime. The ancient Romans, adhering to the motto Salus populi suprema lex est (“the well-being of the people is the highest law”), instituted dictatorship during wartime or national emergency, handing power to one man, who regulated society as he pleased, but only for a limited period. Modern democracies, in law at least, have never adopted this practice, preferring to retain the norm of constitutionalism (limited government) and its requirement of the rule of law. Thus, during World War II, the British Parliament was free to replace Winston Churchill as prime minister, and the American electorate was free to reject Franklin Roosevelt.

Censorship was routinely practiced during World Wars I and II. Reporters submitted stories to military censors, who deleted whatever they considered of aid to the enemy, including depressing facts that might lower civilian moral. Before the 1960’s, American reporters freely cooperated with military censors.

The system of cooperation broke down during the Vietnam War, when a deep divide opened between press and government. Government restriction of information was viewed as a means to shore up morally questionable policy by ensuring public ignorance of facts about the war. Matters came to a head in New York Times Co. v. United States (1971), the Pentagon Papers case, in which the U.S. Supreme Court rejected the government’s contention that publication of the papers should be restrained.

The Freedom of Information Act is a centerpiece of the public effort to enshrine in American law the public’s right to know what government does in its name. Government secrecy must be subject to strict limits and considered an anomaly, even a pathology, of liberal democracy. Advocates of secrecy bear a heavy burden of proof in justifying each exception to liberal democracy’s need for public openness and free expression.

The inability of reporters to cover freely the U.S. entry into Grenada in 1983 and Operation Desert Storm against Iraq in 1991 resulted from the adversarial relationship between government and press that was established during the Vietnam War.

Conflict Among Values

A further consideration is that free publication of some information may involve conflict among accepted democratic values. The accused’s right to a fair trial may conflict with freedom of the press; government’s need for secrecy in national security and other matters may conflict with a democratic public’s right to know. Freedom of expression for one person may conflict with another’s right to privacy or right not to be defamed. In each conflict, law must find its way to uncertain accommodation. The Internet and its international scope add new legal complexities, as views of what is permissible speech conflict across geographic areas.

Bibliography

The seminal work of modern liberal thought on the subject of censorship is John Stuart Mill’s On Liberty (1859). Kermit Hall, ed., The Oxford Companion to the Supreme Court of the United States (New York: Oxford University Press, 1992) has numerous articles relevant to democracy and censorship. Pat M. Holt’s Secret Intelligence and Public Policy: A Dilemma of Democracy (Washington D.C.: CQ Press, 1994) suggests remedies for conflicts between the necessity for secrecy and requirements of an open society. Harry M. Clor’s Obscenity and Public Morality (Chicago: Chicago University Press, 1969) presents a comprehensive discussion of the issues. Thelma Adams, ed., Censorship and First Amendment Rights: A Primer (Tarrytown, N.Y.: American Booksellers Foundation for Free Expression, 1992) gives arguments against censorship in liberal democracy. Jonathan Rauch’s Kindly Inquisitors: The New Attacks on Free Thought (Chicago: University of Chicago Press, 1993) discusses late twentieth century feminist and other arguments for censorship. Nat Hentoff’s Free Speech for Me—But Not for Thee: How the American Left and Right Relentlessly Censor Each Other (New York: HarperCollins, 1992) is a cogent essay on censorship issues in American politics.