Censorship and Free Speech

Some Philosophical Bearings

P.G. Ingram

• Publisher: Taylor & Francis
• Year: 2019
• Print ISBN: 9781138734784
• eBook ISBN: 9781351738859
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This title was first published in 2000: While there are many philosophical studies of free speech, treating censorship historically, politically, or by the medium restricted (films, press etc.), little has been written on censorship and free speech dealing with issues philosophically and approaching them from the perspective of restrictions. This book treats censorship and free speech as a problem of ideas, examining the issues as an aspect of our wider social and political lives and critically examining mainstream arguments against censorship. This unique approach takes issue with the concept of censorship as something aberrant, to examine where the limits of free speech lie in ensuring individual development and collective harmony. Examining the possibility of accepting censorship positively to serve legitimate purposes, it will be a thought-provoking challenge to prescriptive arguments for free speech.

1 Preliminaries

A Definition of Censorship

What is censorship? Initially, the answer to this question may appear so straightforward as hardly to be worth answering. A more difficult question is: what amounts to censorship? It is the significance and consequences of actions which have a censoring effect as well as the express practice of censorship, with which I shall he concerned in the following pages.

For many people—including, I imagine, the reader who has just opened this book—the word 'censorship' immediately suggests an activity to be condemned. Yet I think that if we allow ourselves unprejudicially to reflect on what may be referred to by the use of that word we will become aware of a complex of different social, political and moral problems meriting a range of restrictive responses which can be motivated and justified in not a few distinct ways. According to the case in question, restrictions on free speech may be seen as beneficial rather than detrimental, as necessary and desirable for society and not just expedient for the state or the government. Final judgments on censorship in general (if a single unequivocal conclusion is ever possible) as well as our opinions about censorship in particular cases will be dependent on the relative weights which we allot to diverse social values. In this book I aim to relate the value of free speech either directly to other values or to the social activities in which those values are embodied. By doing so I intend to provide a way of reassessing the place of public restrictions on freedom of expression.

Despite the complexities of what can be considered to amount in actuality to censorship, the best way to begin is with a definition of the explicit practice, since in discussion the term 'censorship' can be used in a wide-ranging manner that is not well-considered or substantiated. Censorship has been around for a long time, and so as a starting-point I take a sixty-year-old definition of the term which is clear and by no means out of date: censorship is 'the policy of restricting the public expression of ideas, opinions, conceptions and impulses which have or are believed to have the capacity to undermine the governing authority or the social and moral order which that authority considers itself bound to protect'.¹ I will come to modify this definition in some of my arguments in the following pages, but, taken as it stands for a starting-point, it requires some comments.

Firstly, censorship is claimed to be a policy of restriction: it is typically the policy of restricting the public expression of ideas. Two points immediately arise. First, that there is a policy involved implies that the practice is to a degree regular and rule-guided and, in addition, that it serves some external purpose, such as a moral principle or a political strategy. What the wider purpose of censorship may be is a theme which runs through this book. (At the same time, it should be borne in mind that censorship may in fact be practised in an irregular, arbitrary and self-defeating fashion.) Second, that censorship is about restriction highlights its connection with intolerance. It is not difficult to see that a desire to restrict involves a measure of intolerance. However, it is instructive to note how censorship and intolerance differ. Intolerance seeks to suppress completely, and not only to suppress expression but the thoughts themselves which give rise to that expression. Although censorship may on occasion bring about a total suppression of some ideas, more often than not it does not place an absolute ban on the expression of ideas but requires alterations or omissions within that expression, changes in detail, deletion of some content, or its confinement to a certain class of audience. Although censorship may result in suppression in particular cases, it typically and centrally involves restriction rather than suppression. It is not concerned so much to suppress the expression of an opinion as to effect changes within it or limit its dissemination in order that what is expressed falls within the limits of what received opinion or government itself wishes to permit. Of course, a government which imposes such restrictions as a policy intends that there should be further effects. I shall discuss some consequences of successsful restrictions at a later point in connection with the substantive links that exist between freedom of expression and freedom of thought; as I shall show, these two freedoms are inseparable in the real world.

Secondly, censorship is concerned with publication, or public performance or exhibition. It is the practice of restricting the public expression of ideas. It is directed towards the expression influenced by those thoughts. By contrast, intolerance is concerned with a person's ideas and thoughts in their own right. When a movement becomes the victim of intolerance it is suppressed; its members are often subjected to penal sanctions on account of the content of their beliefs, whether or not those beliefs are deliberately publicized or otherwise made known to the general public. Censorship attends to public expression. When it seems to interfere with opinions held privately only, it is perhaps seeking to anticipate and prevent their public expression. It is not typically concerned with privately held opinions or knowledge for their own sake; it is directed towards, and with respect to, their public dissemination.

In these introductory remarks about the definition of censorship it is appropriate to make some comments about the relation of censorship to free speech. Much censorship frequently only changes or edits the expression of ideas and opinions; therefore the existence of a policy of censorship does not of itself mean the complete control of people's public opinions—the total absence of freedom—but rather the limitation or qualification of their freedom of expression. Let us accept from the start that no matter how extensive free speech is in any society it is always at some points limited or qualified. However liberal our attitudes we do not think that the complete absence of what we willingly call censorship would bring about a freedom of speech that was completely unchecked. Free speech will always have its bounds. The classical examples are familiar enough: a man cannot wantonly shout 'Fire!' in a crowded theatre when there is nothing amiss, or publish abusive and untruthful statements about personal enemies, or (undesirably not only from the authorities' point of view but also for ordinary citizens going about their everyday business) incite an angry mob with revolutionary statements in support of violence, or—to suggest more contemporary examples—make hoax bomb warnings or advocate paedophilia. Our liberal beliefs are safeguarded, it seems, because we readily believe that an abuse of free speech is in some significant, if paradoxical, sense not an example of free speech at all; consequently, the restriction of such abuse does not amount to censorship. But this begs the question of what is to count as an abuse of free speech. To imply, if not to say explicitly, that universally acceptable restrictions do not amount to censorship is unhelpful in coming to terms with the point of restricting what people say and write and publish. It also makes it difficult to accept that boundaries shift between accepted and unaccepted expression and acceptable and unacceptable restrictions, and to understand how they do.

Freedom of information, like freedom of expression, is similarly bound to be limited. Although there may be criticisms concerning their abuse, the necessity of some restrictions on public information in the interests of national security is not disputed. A society must always protect itself against immediate threats to public order, its stability and its own existence. In pursuit of these ends limitations on many kinds of freedoms are almost universally thought justified; foreclosing public access to sensitive factual information (particularly of a military or economic kind) is at least a necessary evil. In appropriate circumstances measures of censorship may be provided with analogous justifications to those based on national security. Reference may be made to a short-term need to maintain public order or social stability or a longer-term need to defend society against internal threats, as, for example, in the areas of race relations or the prevention of terrorism, rather than immediate dangers. Debate in these areas concerns the extent of restrictions, not the principle of restriction itself.

Certainly we may still continue to think of censorship in general as undesirable; we may even believe it to be an evil to be avoided altogether in all but the most exceptional circumstances. However, it is not correct to assume that censorship leads inexorably to a general destruction of liberty or that it is by its very nature a repressive social or legal activity. To limit the abuse of a freedom is not repression. Therefore not all restriction is repression, and censorship is only one limitation of liberty among many in every democratic society. Censorship needs examination of an impartial kind, as a term covering certain restrictive activities which will at a minimum sometimes be justifiable in their motivations and aims and beneficial in their consequences for the majority of society's members. Of course, it may still be argued that freedom of speech is a paramount value, outweighing any social disadvantages and even harm that can rightly be attributed to it in a particular instance; but the discussion of this position is more properly left for me to take up later.

Forms and Methods

At the beginning of this book I posed the question: 'what amounts to censorship?' Although it may seem premature for me to indulge so early in an excursus on the forms taken by explicit censorship and the methods used to enforce censorship both directly and indirectly, I am doing this in order to show that although wide and rather vague references to 'censorship' may sometimes be mistaken, the extent of restrictions amounting to censorship is much greater than the few activities clearly covered by the ordinary use of the term. My contention here is that as far as issues of principle are concerned, direct and indirect censorship are to be considered together. Censorship is to be assessed in relation to its motivation and intentions rather than its means. It should also be seen that to describe censorship as a policy—a word which suggests deliberate and well-defined intentions—is often to mischaracterize it. Censorship of an indirect kind may sometimes be haphazard, and often the policies and principles behind it (whatever they are) are not capable of being easily or clearly formulated.

The most obvious form of censorship is the legal form. Censorship of this kind may be well formulated in clear laws which define its purpose and scope, those officials who have power to enforce the laws, and the ways in which they are to be enforced; or it may be couched in very general terms imposing few strict limits, as with the Official Secrets Acts in the United Kingdom, which can, if required, be construed to cover a vast range of cases; or it may be vaguer still, giving wide discretionary powers to officials of many kinds to impose restrictions as they see fit.²

Legal measures may amount to full or partial censorship. The latter is exemplified by the 'adults only' tag on some magazines and films; but it is not necessarily confined to the distinction between child and adult. Partial censorship can be practised, for example, through distinctions based on class, education, or purpose. A partial censorship that we so often do not question is with us all the time in the distinction between information accessible only to public officials and information accessible to the general public. From time to time there is talk of 'open government', but however genuinely open our government may be, there will always be a large amount of factual information, policy considerations and comment which are excluded from the public domain but to which the public arguably have a right of access.³

A quite different area of selective censorship is provided by the way m which in the past certain books have been published solely in an expensive edition; the denial of easy availability for suspect material has from time to time been used as a crude measure to ensure that they would not be read by the 'wrong' people. This has not been the case only with pornography; with revolution so much in the air in the last decade of the eighteenth century one famous objection to Thomas Paine's Rights of Man was that it was published at such a low price as to find a wide distribution among the lower classes; and since newspapers and periodicals percolated to those classes at the time they were prone to encounter serious restrictions. Expensive books could be relied on not to fall into the wrong hands without the need for formal restrictive measures. Further examples of selective censorship at the present time are found in the ways sensitive material—books, videos and the like of a sexual or violent nature—may be readily available to people like doctors and lawyers for their professional purposes but not to the general public whose interest in the material could presumably only be prurient. Full censorship entails a universal application of the measures involved, without regard to distinctions between classes or groups of individuals. No censorship is ever completely universal, of course, since someone must always see the material in order to censor it or continue the restrictions; and, short of the physical destruction of uncensored material, such material remains available to certain persons in virtue of their office. Nevertheless, it is worth while to maintain a pragmatic distinction in place between partial and full censorship.

Related to legal censorship are a number of different kinds which may broadly be included under the term 'quasi-legal'. The clearest examples are found in actions taken by those in some official capacity who nevertheless have no express legal backing for what they do in the case in question. In the United Kingdom successive governments have used various means (in particular, the so-called D-notices) to 'advise' the media that references to certain matters or the publication of certain information would not be in the public interest. Especially in the past, such instructions were usually heeded, although no formal prior sanctions could be legally enforced. Of course, if there are no legal sanctions to be threatened, the success of any measures depends on tacit understandings and agreements. When these can no longer be taken for granted, old systems of restrictions either break down or are transformed into more explicit, legally backed procedures. Other quasi-legal forms of censorship are applied not by governmental authorities but by public bodies and institutions, private employers, professional associations, private clubs and societies, and even political parties. The limitation of a person's freedom of speech may be an actual or effective condition of membership or employment, as evidenced by the use of gagging clauses in contracts and other measures to deter 'whistle-blowing' or render it ineffective. Alternatively, although there may be no pre-existing restrictions in place, the consequences of speaking out are all too clear.

Why do we have so many kinds of both legal and extra-legal censorship in a supposedly free society? Obviously, many restrictions can be linked to the distribution and maintenance of power—by a state over its citizens, by a company over its employees, by a club or political party over its members. Beyond their overt functions they must also be seen in many instances as formalized or organized extensions of social censorship, although this also often reduces either to a manifestation of the desire of a majority to constrain a minority or to the intention of a minority with power and influence to continue to impose on the majority the values in which they believe. Informal social censorship on its own lacks the backing of law or specific authority but has from time to time been no less powerful. It may occasionally take a direct form, as, for example, where a small social group ostracizes offending members, either leading them to mend their ways by encouraging the practice of self-censorship, or denying them effective self-expression. It is much more likely to take indirect forms which discourage the expression of unacceptable opinions or ensure that other members of the community are prevented by social pressures from actively taking up whatever ideas have been disseminated. Social censorship and other restrictions limiting free speech extend importantly into the field of education and the general upbringing of children to ensure that these fall within the range of the usual social expectations. Education is a wide area with its own special problems and I shall be giving this subject more detailed treatment in due course.

In its legal, quasi-legal, and social forms censorship is manifested in two ways, either in penal sanctions following the transgression of a law or in pre-censorship and 'prior restraint', where publication of offending information or opinions is prevented in advance. The former, naturally, is intended to encourage the self-imposition of the latter. Sanctions will mostly be associated with the legal form, through fines, imprisonment, or the destruction of books and other matter, or with the extra-legal form, through loss of employment or other material advantages. Sanctioning measures of a kind can be enforced in connection with more diffuse social desires for censorship, but in a heterogeneous society they will tend to be non-existent or weak because of their informality; in order to be effective, such measures require a strong social cohesion based on common, shared beliefs not only about a basic system of values but also about the detailed interpretation of that system. Whatever our society was like in the past, to say that it lacks a homogeneous character at the present time needs no argument.

Pre-censorship may be of two kinds. The clearest example is where material for publication in any way is submitted for clearance beforehand (as all films and videos for public showing or sale in the United Kingdom are submitted before distribution to the British Board of Film Classification in order to obtain a certificate). Publication will be permitted with or without changes, or with restrictions as to age, or forbidden altogether.⁴ If the state or other authority had complete control of the media of publication, pre-censorship would eliminate entirely the need for possibly offensive penal s...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Series Preface
• Preface
• 1 Preliminaries
• 2 Criticisms of Censorship
• 3 Philosophical Connections
• 4 Social Order
• Bibliography
• Index