|
Censorship used to be a very dull subject. Aligned along predictable and venerable divisions separating liberals from conservatives, oriented toward ancient and well-rehearsed chestnuts such as obscenity and national security, the topic promised little of analytic interest.
In recent years, however, the landscape of censorship has altered dramatically. 1 Now feminists in Indianapolis join with fundamentalist Christians to seek the regulation of pornography. 2 Critical race theorists join with Jesse Helms to regulate hate speech. 3 Advocates of abortion rights seek to restrict political demonstrations while conservative pro-life groups defend the freedom to picket. 4
Many contemporary liberals scoff at traditional First Amendment jurisprudence, viewing it as a "breeding ground of libertarian sentiment," 5 and they demand instead a "New Deal" for speech that would empower the state to regulate campaign financing and the broadcast media. 6 Constitutional restraints on government intervention are said primarily to protect the status quo, with its entrenched hierarchies of power and wealth. 7 Conversely, many conservatives have displayed a resurgent and largely libertarian appreciation for the value of freedom of expression, invoking it to check proscriptions of pornography and hate speech, as well as to block campaign finance reform. 8
This represents a remarkable disintegration of traditional political alignments. The historical causes of this transformation are no doubt multifarious and complex. Certainly one important factor, rendered vivid by the demise of the Cold War, has been the pervasive perception, most fully theorized for this generation in the work of Michel Foucault, that the state holds no monopoly of power. 9 While histories of censorship used to chronicle official legal suppression of speech, 10 Foucault's work invited us to "escape from the limited field of juridical sovereignty and State institutions, and instead base our analysis of power on the study of techniques and tactics of domination." 11 In the last two decades we have begun to perceive power as dispersed, as circulating, as spinning out from the enactment of discursive and disciplinary practices.
A profound effect of this vision has been the tendency to focus on "power as such," with a consequent equation of state force with private domination. 12 In the words of Catharine MacKinnon, "The operative definition of censorship accordingly shifts from government silencing what powerless people say, to powerful people violating powerless people into silence and hiding behind state power to do it." 13 The call for juridical force to check oppressive discursive practices has thus come to be seen not as invoking the state "as a censor, but rather as a parliamentarian, requiring some to shut up so others can speak." 14
Liberated from traditional inhibitions against official suppression of speech, the left has mobilized to pursue a rich variety of political agendas, ranging from restraining the speech of the wealthy to avoid submerging the voices of the poor, to restricting pornography to avert the silencing of women. From a political point of view, the most striking aspect of these agendas is their trust of government action. Henry Louis Gates has remarked how difficult it is to imagine this agenda being "expressed by . . . activist counterparts in the sixties, who defined themselves through their adversarial relation to authority and its institutions. . . . Today, the aim is not to resist power, but to enlist power." 15
Political efforts to enlist state power, like those of Catharine MacKinnon, have typically sought to mobilize support by portraying censorship as a form of oppression. But within the academy there has emerged a remarkably innovative new scholarship that has taken a more rigorous and uncompromising view of the matter. Focusing with a sharp Foucaultian lens on the constitutive micromechanisms of power, on the minute intersections of resistance and domination through which power is exercised, this new scholarship follows Foucaultian premises to their fundamental and radical implications.
If censorship is a technique by which discursive practices are maintained, and if social life largely consists of such practices, it follows that censorship is the norm rather than the exception. Censorship materializes everywhere. It is for this reason that Pierre Bourdieu can refer to the "censorship constituted by the very structure of the field in which the discourse is produced and circulates." 16 For Bourdieu the necessity for a practice of censorship manifested by "explicit prohibitions, imposed and sanctioned by institutionalized authority, diminishes" precisely to the extent that "the structure of the field itself" is capable of governing "expression by" controlling "both access to expression and the form of expression." 17
To the extent that the new scholarship conceives censorship as "pervasive and insistent in all disciplines that mediate language," the force of censorship as a normative concept must proportionately diminish. 18 Thus it is rightly said that "[t]o be for or against censorship as such is to assume a freedom no one has. Censorship is." 19 Censorship establishes the practices that define us as social subjects. Hence censorship transmutes from an external, repressive force to "a positive exercise of power" that constitutes practices as it defines their boundaries. 20
Foucault had himself always seen power as productive, as constructing knowledge and social practices. He had consequently rejected any simple opposition between power and person, concluding instead that power "makes individuals subjects." 21 In the new scholarship, censorship is analogously characterized as productive, "not as one or more discrete acts of repressive control over free expression, but as a 'normal' and 'constitutive' part, indeed, a very condition, of free expression." 22 The striking and anomalous consequence of this characterization is precisely to cut against attempts to use the charge of censorship as grounds for political mobilization.
These are exciting and important intellectual developments. For all their undeniable power, however, they seem to miss something of importance featured in more traditional accounts. The new scholarly orientation toward censorship seems blind, for example, to the "high drama of repression and suppression" retold by Zamir Niazi in his effort to "preserve . . . for posterity" the courage of Pakistani writers resisting the oppression of a tyrannical regime. 23 Nor does it seem able to appreciate the "heroic names" celebrated by Seamus Heaney in his "modern martyrology, a record of courage and sacrifice" presented in his study of the sacrificed poets of Eastern Europe. 24
By focusing so intensely on the quotidian operations of power, the new scholarship of censorship ultimately centers attention, like Foucault himself, on the "agonism" in which "the recalcitrance of the will and the intransigence of freedom" form a "permanent provocation" to "the power relationship," which itself establishes a necessary and inescapable "structure" for "the possible field of action." 25 Agonism signifies that while we are always both bound and enabled by existing power relationships, we are also always potentially at odds with those relationships. Agonism, however, does not distinguish Joyce struggling to publish Ulysses from, say, the "struggle" of the client of a poverty lawyer to overcome the "violence of silencing" imposed by "the order of discourse" of the usual "lawyer-client relation." 26 Agonism is precisely universal. It is precisely omnipresent.
The enormous expansion of understanding facilitated by the Foucaultian perspective on censorship (and, to be old-fashioned about it, the immense increase in the possibilities of sympathetic apprehension it enables), is thus purchased at the price of a certain abstraction. Foucault's work itself exhibited a vertiginous oscillation between extreme abstraction and minute detail; the space between, where most people live most of their lives, was persistently and scrupulously effaced. The new scholarship of censorship can be similarly characterized. It tends to veer between the concrete mechanisms of silencing and the abstraction of struggle. The result seems to flatten distinctions among kinds of power, implicitly equating suppression of speech caused by state legal action with that caused by the market, or by the dominance of a particular discourse, or by the institution of criticism itself. It tends also to flatten variations among kinds of struggles, de-emphasizing the difference between, say, the agonism of poets and that of legal aid clients.
The challenge is thus how to preserve the analytic force of the new scholarship without sacrificing the values and concerns of more traditional accounts. Recognizing always the pervasive, inescapable, and productive silencing of expression, can we say anything distinctive about the particular province of what used to define the study of censorship: the "direct control" of expression by the state? 27
Assembling a group of extraordinarily talented scholars, this volume interrogates that issue from divergent disciplinary perspectives, ranging from political science to philosophy, from law to cultural theory, from literary criticism to anthropology. Our strategy is to re-examine state censorship with the insights of the new scholarship firmly in mind. In Part I we inquire into the specific dynamics of explicit legal control of speech through criminal and civil sanctions. In Part II we investigate other forms of state regulation of speech, ranging from subsidies to property rights. And in Part III we examine justifications for state interventions to regulate private power that constrains expression.
Part I begins with an essay by Richard Burt, one of the foremost proponents of the new scholarship. Carefully focusing on court suppression of the English playwright Thomas Middleton, Burt invites us to suspend our usual conception of censorship as a process of "removal and replacement," and instead to visualize censorship as a matter of "dispersal and displacement." Burt's ambition is to undermine any simple opposition "between the censored and uncensored," thus calling into question traditional theories of free speech that rely on postulated polarities between repressed and authentic versions of an author's work. 28
Middleton was subject to a court officer, the Master of the Revels, whose judgments were highly personal and discretionary. Although such individual discretion to censor still exists with respect to speech within state organizations, 29 direct official control over public discourse (like the theater) is today almost entirely dependent upon the application of judicially interpreted legal principles. 30 Quite apart from the well-rehearsed debate as to whether the ideals of free speech ought to exempt public discourse from direct official control, we may therefore also ask whether legal proceedings are themselves a suitable instrument for the regulation of speech. 31 These questions do not depend upon any implicit opposition between censored and uncensored versions of a text; they instead concentrate on the internal requirements of a modern legal system.
Both Ruth Gavison's and Lawrence Douglas's contributions to this volume discuss the many and subtle ways in which these requirements affect the law's ability to fulfill the purposes we demand of it when we seek to use the law to regulate expression. Although many in Israel have called for the suppression of speech that incites to political violence, Gavison probes the law's capacity to serve this function, and in particular she demonstrates how such factors as the law's internal need for public justification causes it to be over- and underinclusive and otherwise generally ineffective in fulfilling this task. Douglas observes how the ambition to enshrine a certain view of the Holocaust by criminalizing speech that denies it has been undermined by the law's own internal requirements of advocacy and agnosticism.
Of course there are many different purposes for which the law can be used to control speech, and some may prove more amenable to legal realization than others. The last two essays in Part I examine further justifications for legal intervention. Debora Shuger offers an historical exegesis of how early modern English proscriptions of slander and libel not only served the purpose of minimizing incitements to political violence but also instantiated a particular vision of Christian community. If the first of these goals would presumably be subject to the caveats outlined by Gavison, the second would not, and to this day the so-called dignitary torts aspire to enforce analogous forms of community self-definition. 32 That aspiration, however, is queried by E. S. Burt, who uses French judicial decisions first condemning and then rehabilitating poems from Baudelaire's Fleurs du mal to explore efforts to employ the law to suppress obscenity within literature. Burt's point is that the law can extract particular versions of communal norms from literary texts only by blinding itself to the "negative knowledge of a disintegrating memory" carried in the very language of such texts, a knowledge that is independent of any "poet's agency." 33 This knowledge, this literariness, evades all censorious efforts to affix texts with determinate meanings.
Part II of the volume turns from the issue of direct legal control of expression and examines the use of state power to maintain and privilege particular discursive practices. Every time the state educates a student, or establishes acquisition criteria for a public library, or chooses to subsidize one form of speech rather than another, the state uses government resources to establish a discursive field. It supports some speech and marginalizes other speech. In popular debate, these actions have come to be characterized as a form of censorship. Those who oppose the imposition of "decency" restrictions on NEA grants, for example, charge that they "censor artists' speech," 34 while those who defend the restrictions write "In Praise of Censorship." 35 A recent report from People for the American Way documents "300 incidents of attempted censorship," defining these incidents as efforts "to remove from a classroom, library or curriculum, books or other materials or programs for ideological or sectarian reasons." 36
This usage of the concept of censorship is odd, because no matter what speech the state does or does not fund, no matter what material it assigns or does not assign within a classroom, no matter what books it acquires or does not acquire for a library, the state will be acting for reasons that can properly be termed "ideological." This suggests the practical truth of the theoretical insight that all discursive practices establish themselves through the marginalization and suppression of competing practices. If we wish to condemn this as "censorship," then censorship is indeed everywhere and inescapable. Yet in popular rhetoric the term censorship continues to be used as if it denotes a particular kind of especially egregious and voluntary state action, one that could, like direct civil and criminal sanctions, be avoided.
This is the paradox addressed by Frederick Schauer in the first essay in Part II. Schauer's point is that if the term censorship is applied to the empirical processes by which our "expressive possibilities" are constituted and consequently restricted, then "the very concept of censorship is problematic." Schauer also suggests, however, that the persistent use of the concept within popular debates implies that the term does not in fact refer to these empirical processes, but that it serves instead as a label applied post hoc to conclusions about "the allocation of content-determining authority." 37 These conclusions do not depend so much upon the mere fact that expression is suppressed, as they do upon political and purposive considerations like "institutional competence," "separation of powers," or the maintenance of professional autonomy: they depend, for example, upon whether we wish politicians or artists to determine the allocation of NEA grants.
Schauer's argument implies that the new scholarship of censorship may conflate the descriptive fact of silencing with the ascriptive judgment of censorship. 38 To recognize this conflation, however, is merely to invite deeply perplexing inquiries about how exactly an ascriptive and normative judgment of censorship should be applied to state action that does not impose direct civil or criminal sanctions. The remaining three essays in Part II explore the difficulties of this problem.
David Wasserman canvasses the rich complexities involved in assessing restrictions on government subsidies for scientific research into genetic predispositions to impulsive, violent, or antisocial behavior. Wasserman demonstrates how judgments of censorship must in the end turn on sensitive assessments of institutional and professional competencies, political purposes, and so forth. Sanford Levinson examines this same set of issues as applied to state efforts to educate the public to particular visions of history. Whereas Douglas probes efforts to enshrine a specific version of the Holocaust through direct criminal sanctions, Levinson discusses the state's tutelary attempts to achieve the same end through the erection of public historical monuments. Levinson spins the reader in a dizzy circle, teasing out a humbling array of disparate considerations that might inform ascriptive judgments of censorship.
One of the subtlest, most pervasive, most unobtrusive, yet most powerful methods by which the state establishes discursive fields is through the creation and allocation of property rights. Property rights undergird what the new scholarship of censorship has termed "market censorship." 39 Yet however much we may acknowledge that "the market is itself a structure of constraint," it is difficult to imagine a modern society entirely without property rights, so that once again the descriptive and ascriptive concepts of censorship must be disentangled. 40 In the last essay in Part II George Marcus ventures into this difficult terrain, examining contemporary claims to cultural property by aboriginal peoples in the United States, Canada, and Australia. Such claims distribute power and hence have fundamental political consequences; they reflect cultural identities that challenge deep assumptions of "autonomous individualism" otherwise embodied within intellectual property law; they interfere with the free circulation of ideas and expression; yet ought they to be characterized as censorship? Marcus worries the issue, but, like Wasserman and Levinson, ultimately reserves judgment.
Part III of the volume returns to the insight that nonstate power pervasively onstrains expression, and that sometimes these constraints operate in ways that could be ascriptively characterized as censorship. In such circumstances it might be justifiable to invoke state power to remove these constraints, even at the price of direct government regulation of speech. This reasoning underlies contemporary calls for restrictions on pornography and hate speech, for state controls over public access to media broadcasting outlets, and so forth.
Judith Butler begins Part III with a theoretical account of the ways in which "the speaking subject is produced through constraints on speech that precede the subject itself." Because these constraints establish "the domain of speakability" and "the conditions of intelligibility," they are inevitable, indispensable, and unspeakable. Butler speculates that for this reason they may be misdescribed by the language of "censorship," and she herself proposes to use the term foreclosure. She wishes to designate a "primary form of repression, one that is not performed by a subject, but, rather, whose operation makes possible the formation of the subject." Butler contrasts such foreclosure with the censorship performed by a sovereign actor, whether that actor be the state or the speaker of hate speech. Censorship performed by a sovereign actor, which is explicit, discrete, and from outside the subject, is necessarily incomplete, because of the continued independence of the subject and of the inability "to circumscribe effectively the social domain of speakable discourse." 41
The social power to censor, albeit limited, can nevertheless prove considerable. The essays of Rae Langton and Leslie Green explore the characterization and consequences of that power in the particular instance of pornography. At the outset Langton rejects accounts of censorship that universalize it, that place it "everywhere." Censorship as a normative concept must refer to something discrete and remediable. Using J. L. Austin's speech act theory, Langton argues that pornography functions as a form of "illocutionary disablement" that prevents women from having the full power to speak in certain kinds of ways. It is thus a form of censorship, and if "the free speech of men silences the free speech of women-then there is a choice about which speech is to be protected." 42
In Austinian terms, the illocution of an utterance refers to the action constituted by the utterance. To say "I agree" in the appropriate context is to have the illocutionary force of, and to perform the action of, making a contract. The success of the illocutionary force of an utterance depends upon "felicity conditions" that permit the "uptake" of the utterance. This implies, however, that the illocutionary force of every utterance is pervasively and inescapably constrained both by felicity conditions and by the social forces that enable the fulfillment of these conditions. These conditions and forces are historical and contingent. For this reason Green argues that illocutionary force is precisely "censored" everywhere, so that one cannot speak of a freedom of speech that encompasses freedom from constraints on the illocutionary force of one's speech. No one can complain of being silenced merely on the ground that uptake is not secured. If pornography is to be regulated, suggests Green, it should be on other grounds, as for example on the basis of norms of equality which, like the norms of charity evoked by Shuger, reflect a particular vision of communal identity. 43
Wendy Brown concludes Part III with an extended meditation on the theme of silencing. Brown is concerned to unravel the usual equation that reads voice as registering authenticity and power, and that reads silence as reflecting repression and domination. Brown identifies the subtle dangers associated with what she calls "compulsory discursivity," which conscripts subjects into the regulatory norms of the very discursive practices that enable speech. From this perspective, silence can function as a "resistance to regulatory discourse," as a quiet and sheltered place in which freedom can be practiced. Brown treads a fine line, carefully distinguishing "between the pleasures and freedoms of silence on the one hand, and habituation to being silenced on the other." 44 Brown's point is that, having once tasted the Foucaultian apple, we can neither view expression as the simple opposite of censorship, nor silence as the simple antithesis of freedom.
We have come, therefore, full circle. We have learned to see regulation in the very formation of our speech; we have learned how thoroughly we are subject to natural causal constraints. Nevertheless, to the extent we continue as agents to act and to judge, we require criteria by which to discriminate among restrictions on speech: to accept some and to reject others. Because we have learned that such judgments cannot rest merely on the fact that expression is constrained, we must reformulate them to depend instead upon purposive considerations, upon ideals of juridical enforcement or of institutional competence or of freedom or of equality. The concept of censorship can guide our judgments only if it is reabsorbed into this normative language. But the concept comes to us now stripped of its prior innocence by the acid of Foucaultian sophistication. That loss has momentous political consequences, as we have learned in the last two decades. The challenge addressed by the essays in this volume is how these consequences may be mastered and subordinated to an informed political will.
Notes
1. For a good discussion, see Kathleen M. Sullivan, "Free Speech Wars," Southern Methodist University Law Review 48 (1994): 203; Kathleen M. Sullivan, "Resurrecting Free Speech," Fordham Law Review 63 (1995): 971.
2. For an account, see Donald Alexander Downs, The New Politics of Pornography (Chicago: Univ. of Chicago Press, 1989).
3. Compare Mari J. Matsuda, et al., Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder: Westview Press, 1993), with Congressional Record, 101st Cong., 1st Sess., 1989, 135: 16276 (proposed statute by Jesse Helms prohibiting NEA funding for, inter alia, "material which denigrates, debases, or reviles a person, group, or class of citizens on the basis of race, creed, sex, handicap, age, or national origin"). For the story of the Helms Amendment, see John H. Garvey, "Black and White Images," Law and Contemporary Problems 56 (1993): 189, 191-97.
4. See, for example, Madsen v. Women's Health Ctr., Inc. , 114 S. Ct. 2516 (1994).
5. Owen M. Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (Boulder: Westview Press, 1996), 34.
6. Cass R. Sunstein, Democracy and the Problem of Free Speech (New York: Free Press, 1993), 16. For historical antecedents, see Zechariah Chafee, Jr., Government and Mass Communications (Hamden, Conn.: Archon Books, 1965; originally published 1947), 26-29, 680-719.
7. See, for example, Frederick Schauer, "The Political Incidence of the Free Speech Principle," Colorado Law Review 64 (1993): 935. .
8. For a recent decision on pornography, seeAmerican Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff'd per curiam, 475 U.S. 1001 (1986). For hate speech, see R.A.V. v. St. Paul, 112 S.Ct. 2538 (1992); Eugene Volokh, "Comment: Freedom of Speech and Workplace Harassment," UCLA Law Review 39 (1992): 1791. For finance reform, see Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 679 (1990) (Scalia, J., dissenting).
9. It is instructive to compare the reception accorded to Foucault with that given to the work of Herbert Marcuse, who in 1965 made this same point (in a quasi-Marxist register) to justify a call for state intervention and censorship. See Herbert Marcuse, "Repressive Tolerance," in Robert Paul Wolff, Barrington Moore, Jr., and Herbert Marcuse, A Critique of Pure Tolerance (Boston: Beacon Press, 1965). Whereas Foucault's work has been enormously influential, Marcuse's was largely dismissed as advocating a fringe position.
10. See, for example, Paul S. Boyer, Purity in Print: The Vice-Society Movement and Book Censorship in America (New York: Scribner, 1968); Guy Phelps, Film Censorship (London: Gollancz, 1975); The New York Public Library, Censorship: 500 Years of Conflict (New York: Oxford Univ. Press, 1984); "A Chronology of Censorship in America," The Congressional Digest 9 (1930): 35; Sidney S. Grant and S. E. Angoff, "Massachusetts and Censorship," Boston University Law Review 10 (1930): 36, 145.
11. Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings, ed. and trans. Colin Gordon (New York: Pantheon Books, 1980), 102.
12. Steven L. Winter, "The `Power' Thing," Virginia Law Review 82 (1996): 721, 728.
13. Catharine A. MacKinnon, Only Words (Cambridge, Mass.: Harvard Univ. Press, 1993), 10.
14. Fiss (see note 5), 85.
15. Henry Louis Gates, Jr., "War of Words: Critical Race Theory and the First Amendment," in Henry Louis Gates, et al., Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties (New York: New York Univ. Press, 1994), 42. "You don't go to the teacher to complain about the school bully," Gates writes, "unless you know that the teacher is on your side" (ibid.).
16. Pierre Bourdieu, "Censorship and the Imposition of Form," in idem, Language and Symbolic Power, ed. John B. Thompson, trans. Gino Raymond and Matthew Adamson (Cambridge, Mass.: Harvard Univ. Press, 1991), 137.
17. Ibid., 138.
18. Michael Holquist, "Corrupt Originals: The Paradox of Censorship," PMLA 109 (1994): 14, 17.
19. Ibid., 16.
20. See, for example Richard Burt, "Introduction: The `New' Censorship," in Richard Burt, ed., The Administration of Aesthetics: , Censorship, Political Criticism, and the Public Sphere (Minneapolis: Univ. of Minnesota Press, 1994), xvii.
21. Michel Foucault, "The Subject and Power," in Hubert L. Dreyfus and Paul Rabinow, eds., Michel Foucault: Beyond Structuralism and Hermeneutics, 2nd ed. (Chicago: Univ. of Chicago Press, 1983), 212.
22. Francis G. Couvares, "Introduction," in idem, Movie Censorship and American Culture (Washington, D.C.: Smithsonian Institution Press, 1996), 10. See Sue Curry Jansen, Censorship: The Knot That Binds Power and Knowledge (New York: Oxford Univ. Press, 1988), 7-8; Francis Barker, The Tremulous Private Body: Essays on Subjection (New York: Methuen, 1984), 51-52.
23. Zamir Niazi, The Web of Censorship (New York: Oxford Univ. Press, 1994), xv, xviii.
24. Seamus Heaney, The Government of the Tongue: The 1986 T. S. Eliot Memorial Lectures and Other Critical Writings (New York: Faber, 1988), 38-39. See J. M Coetzee, Giving Offense: Essays on Censorship (Chicago: Univ. Chicago Press, 1996).
25. Foucault, "The Subject and Power" (see note 23), 221-22.
26. Anthony V. Alfieri, "Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative," Yale Law Journal 100 (1991): 2107, 2126, 2139, 2142. For the Foucaultian influence in this conceptualization, see "The Subject and Power" (see note 23), 2120 n. 43.
27. Annabel Patterson, "Censorship," in Martin Coyle, et al., eds., Encyclopedia of Literature and Criticism (Detroit: Gale Research Inc., 1991), 901. Or, if not by the state exactly, then, as Patterson also puts it, "by men with sovereign power" (ibid.).
28. Burt also intends to undermine any simple opposition between governmental and non-governmental constraints on speech, proposing instead a concept of censorship that can "be located virtually anywhere: not only in the market and in governmental agencies . . . but also in the institution of censorship itself." See Richard Burt, "(Un)Censoring in Detail: The Fetish of Censorship in the Early Modern Past and Postmodern Present," in this volume.
29. For a discussion, see Robert C. Post, "Between Management and Governance: The History and Theory of the Public Forum," UCLA Law Review 34 (1987): 1713; Robert C. Post, "The Management of Speech: Discretion and Rights," Supreme Court Review (1984): 169.
30. Freedman v. Maryland, 380 U.S. 51 (1965). For a discussion of the scope of public discourse, see Robert C. Post, "The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell," Harvard Law Review 103 (1990): 601; Robert C. Post, "Between Democracy and Community: The Legal Constitution of Social Form," NOMOS 35, "Democratic Community" (1993): 163-90. For a discussion of indirect state control over public discourse, see Robert C. Post, "Subsidized Speech," Yale Law Journal 106 (1996): 151.
31. There is a vast literature on this subject, which is not duplicated in this volume. A good place to begin is Frederick Schauer, Free Speech: A Philosophical Enquiry (New York: Cambridge Univ. Press, 1982); Thomas I. Emerson, The System of Freedom of Expression (New York: Vintage, 1970).
32. See Robert C. Post, Constitutional Domains (Cambridge, Mass.: Harvard Univ. Press, 1995), 1-4, 51-88, 127-140, 179-96.
33. See E. S. Burt, "'An Immoderate Taste for Truth': Censoring History in Baudelaire's 'Les bijoux,'" page 133 in this volume.
34. Donald W. Hawthorne, "Subversive Subsidization: How NEA Art Funding Abridges Private Speech," Kansas Law Review 40 (1992): 437, 437.
35. Stanley C. Brubaker, "In Praise of Censorship," The Public Interest, no. 114 (Winter 1994): 48-64.
36. People for the American Way, Attacks on the Freedom to Learn (People for the American Way, 1996), 10-11.
37. See Frederick Schauer, "The Ontology of Censorship," pages 149, 163 in this volume.
38. On an analogous conflation of descriptive and ascriptive accounts of autonomy, see Robert C. Post, "Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse," Colorado Law Review 64 (1993): 1109, 1128-33.
39. Jansen (see note 24), 167, also 16-17.
40. Fiss (see note 5), 143.
41. See Judith Butler, "Ruled Out: Vocabularies of the Censor," pages 255, 253, 251 in this volume.
42. See Rae Langton, "Subordination, Silence, and Pornography's Authority," page 276 in this volume.
43. For a discussion of the communitarian structure of such egalitarian norms, see Robert C. Post, "Racist Speech, Democracy, and the First Amendment," William and Mary Law Review 32 (1990): 267.
44. See Wendy Brown, "Freedom's Silences," pages 318, 324, in this volume.
|
 |
