The Censor’s Dilemma

Pity the plight of poor Anthony Comstock.  The man H.L. Mencken described as “the Copernicus of a quite new art and science,” who literally invented the profession of anti-obscenity crusader in the waning days of the 19th century, ultimately got, as legendary comic Rodney Dangerfield would say, “no respect, no respect at all.”  

As head of the New York Society for the Suppression of Vice and special agent for the U.S. Post Office under a law that popularly bore his name, Comstock was, in Mencken’s words, the one “who first capitalized moral endeavor like baseball or the soap business, and made himself the first of its kept professors.”

For more than four decades, Comstock terrorized writers, publishers, and artists – driving some to suicide – yet he also was the butt of public ridicule.  George Bernard Shaw popularized the term “Comstockery” to mock the unique blend of militant sanctimony and fascination with the lurid that marks American prudishness.  Comstock frequently was lampooned in illustrated comics, and in his final days, even his supporters distanced themselves from his excessive zeal.  In this respect, Comstock personified the censor’s dilemma in a free society – the capacity to wield great power combined with the inability to shake off the taint of illegitimacy.

Comstock’s mindset lives on, both in the extension of his law to modern communications technologies, and in the army of Lilliputian Comstocks pursuing the same profession, but who, like Elvis impersonators, can never quite come close to the real thing.  His outsized shadow looms over the likes of Dr. Fredric Wertham, the psychiatrist who stoked a national panic about comic books, and Tipper Gore of the Parents Music Resource Center, who leveraged her political connections to cow the music industry.  

Comstock’s shadow dwarfs the impact of Newton Minow, JFK’s Federal Communications Commission Chairman, who endeavored to tell Americans that the television medium they so loved was nothing but a “vast wasteland,” and who used the power of the FCC to homogenize broadcasting.  Comstock’s accomplishments also overshadow such lesser zealots as Brent Bozell, founding president of the Parents Television and Media Council (PTC), an organization created to keep the world safe from fleeting expletives and wardrobe malfunctions.

It’s worth examining the work of these and other would-be censors to explore reasons why, while destructive to freedom in their time, they had no permanent impact in the United States.  Or, more accurately, they didn’t achieve their intended impact.  This is not a partisan argument.  No political philosophy has a monopoly on sanctimony, or on the belief that revealed truth – as its adherents define it – should be enforced as a matter of public policy.  

Progressives and conservatives are united in the common conviction that they know what speech should be banned (or required) and that their choices should be enforced by law; they only differ in their preferences.  In this respect, the eye of the beholder governs the mind of the censor.  But, in part because the arbiters of propriety wish to suppress or supplant what the public embraces, they are the ultimate counterculture warriors, and therefore, doomed, in the end, to failure and disrepute.

A Fundamental(ist) Disconnect

A more fundamental reason for the censor’s harsh fate is that his very existence contradicts the arc of history among societies that value freedom.  From the time Anthony Comstock shuffled off into the void in 1915 to the present day, constitutional protections for the freedom of imagination and expression have become well-established to a degree Comstock could never have anticipated, and that would have horrified him.  

The year Comstock died, the Supreme Court held that the First Amendment’s protections did not extend to the then-new medium of cinema.  It reasoned “the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit,” and, more to the point, “capable of evil, having power for it, the greater because of their attractiveness and manner of exhibition.”

The Court’s opinion produced a result and employed a rhetorical style worthy of the great morals crusader himself, but would not stand the test of time.  As both the sophistication and artistry of film evolved, the public enthusiastically embraced it, as did – eventually – the courts. When Comstock passed, the Supreme Court had not yet issued a single decision upholding any First Amendment claim.  

Over the next 50 years, however, the Court would decide that the medium of film was constitutionally protected in the same way as newspapers and books; that the government’s ability to impose prior restraints – to censor expression in advance of publication – was strictly limited; that sex and obscenity are not synonymous; and that discussions of intimate subjects could be banned only if they were “prurient” and utterly lacked redeeming social value.  At the same time, both public and judicial estimations of what is socially valuable shifted radically.  Since then, the legal component of the so-called “culture war” has continued to be waged along the border, and it is an ever-expanding frontier.

It is tempting to think of Comstock’s Victorian Era reign of censorship as a limited episode in our history – like the Red Scare and McCarthyism – that erupted for a time only to be left behind as law and social understandings evolved.  But the reality is not so simple, if only because no such phenomenon is ever a one-time thing when we fail to learn from history.  

Even at the height of his power, Comstock was ridiculed almost as much as he was feared, and his death did not signal the end of the profession of moral crusader.  Far from it.  The names and faces may change, as do the specific problems that represent the latest threat to civil society (and usually to our children), but there has never been a shortage of volunteers eager to save us from our own bad taste and poor manners.

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My purpose in writing The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma was not to present a grand theory of freedom of expression nor engage in the ongoing academic debate about how to interpret the First Amendment.  The purpose was more modest – to understand something about the nature of free speech by exploring the mind of the censor.  

The First Amendment may best be understood by examining what it was designed to prevent rather than by speculating about what it was intended to promote.  And, quite apart from what the Framers may have intended originally, modern First Amendment doctrine developed as a response to episodes of suppression and the excesses of censors.  What came from this may not be a perfectly consistent or coherent body of law, but it has produced increasing levels of protection against would-be censors as it continues to evolve.

The book has provided an opportunity to explore various incarnations of censorship in American history, beginning with the rise and decline of Anthony Comstock, the nation’s first professional anti-vice crusader.  His career set the standard, and for many, the rhetorical tone, for those seeking to condemn various forms of speech.  

Although all who follow in Comstock’s outsized footsteps try to claim moral superiority – characterizing the speech they would restrict as distasteful, trivial, valueless, or downright harmful – the plain fact is that the censor in a free society never has the moral high ground.  The censor’s dilemma is that somewhere, down deep inside, he – or she – is painfully aware of it.

Robert Corn-Revere is a partner at Davis Wright Tremaine LLP in Washington, D.C.  His latest book, The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma (from which this article is adapted), is published by Cambridge University Press and is available on their website and from other booksellers.  Mr. Corn-Revere is a member and former chairman of The Media Institute’s First Amendment Advisory Council.