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Hastings Constitutional Law Quarterly

Abstract

In a free society the censor never has the moral high ground. This fact rests uneasily with one of the primary qualities of the censor-certainty. It's right there in the job description. As Justice Anthony Kennedy has written, "[s]elf-assurance has always been the hallmark of a censor." Chief Justice Oliver Wendell Holmes captured the ethos of censorship nearly a century ago in his famous Abrams v. United States dissent: "Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition." Censors through the ages have thus acted to suppress expression they hate based on certainty borne of whispers from their various gods, appeals to ideological purity or political orthodoxy, and reliance on social science. This censorial impulse is not confined by party or creed; it truly is part of a vast bipartisan conspiracy. But the self-confidence of the censor has been shattered by the antiauthoritarian instincts of most Americans and an evolving First Amendment jurisprudence through the twentieth century denying government power to serve as the arbiter of truth or morality. This has forced would-be censors to cloak their endeavors in academic doubletalk and political euphemism, thus acknowledging their own illegitimacy. This is the censor's dilemma, and it is why defensiveness pervades their occupation. Those who engage in or support the business of censorship have an inferiority complex for a reason-at some level they understand their enterprise is fundamentally un-American.

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