The case against postmodern censorship theory.

• Author: Gey, Steven G.

Introduction

It is an unfortunate sign of our ambiguous times that the First Amendment's free speech protection no longer commands universal support among progressive constitutional scholars and legal activists. The political and legal circles that only a decade ago could be counted upon to defend First Amendment values are now increasingly willing to qualify their support for free speech, if not to abandon the cause altogether. Critical race theorists, feminists of the MacKinnon school and civic republicans have, each in their own ways, attacked the old-fashioned left-liberal fixation on the First Amendment and the quaint, if not antiquarian notions of intellectual freedom that the Amendment represents. Thus, old-line free speech litigation organizations such as the American Civil Liberties Union ("ACLU") have become the targets not just of conservative politicians, but also of the new progressives, who deride the ACLU for being "a handmaiden of the pornographers, the Nazis and the Ku Klux Klan"(1) because of its insistence on representing the free speech rights of those groups.

The anti-free-speech trend has advanced to the point that progressive critics of the First Amendment have begun to claim victory over relativistic liberalism. Richard Delgado announced not long ago that

the ground itself is shifting. The prevailing First Amendment

paradigm is undergoing a slow, inexorable transformation. We are

witnessing the arrival, nearly seventy years after its appearance in

other areas of law, of First Amendment Legal realism. The old,

formalist view of speech as a near-perfect instrument for testing

ideas and promoting social progress is passing into history.

Replacing it is a much more nuanced, skeptical, and realistic view

of what speech can do, one that looks to self- and class interest,

linguistic science, politics, and other tools of the realist approach

to understand how expression functions in our political system.(2)

Like most progressive opponents of a strong First Amendment, Delgado assures us that this new way of looking at free speech represents an evolutionary advance over the previous intellectual model. "We are losing our innocence about the First Amendment, Delgado writes, "but we will all be wiser, not to mention more humane, when that process is complete."(3)

First Amendment critics such as Delgado see a new era dawning, in which free speech will lose the aura it has developed over the years and will be put into proper perspective as merely one constitutional value among many other equally important values. The immediate consequence of this approach is that the First Amendment could be trumped by other values whenever the government could reasonably claim that speech must be suppressed in furtherance of some other important social goal. Unlike previous censorship regimes, which previous generations of political and legal progressives thought served the interests of wealth and power, this new, postmodern censorship is presented as serving goodness, equality and truth. The new critics proffer censorship with a human face.

Delgado is hardly alone in heralding this brave new First Amendment world. Variations of his position have become commonplace among progressive law professors and students, although not yet significantly among members of the practicing bar and judges. The incessant theoretical devaluation of the First Amendment by progressive scholars has put many of the remaining academic supporters of strong free speech protection on the defensive. For example, Kathleen Sullivan has recently attempted to defend First Amendment values against progressive attacks generated by what she terms the "free speech wars."(4) Sullivan rejects the prescription for more speech regulation, but gives considerable deference to the claims of those who propose to reduce significantly First Amendment protections. "The new speech regulators demand a response from those who would leave speech mostly deregulated@ and they deserve a response that goes beyond the rote and reflexive invocation of free speech as an article of faith."(5) Sullivan argues that the old defenses of free speech are no longer sufficient, and that new defenses must be devised "for those in my generation whose respect for the new speech regulators' insights does not extend to agreement with their proposed solutions."(6)

In this Article, I join Sullivan in rejecting the solutions of the postmodern censors. I will argue, however, that she has given the claims of the new regulators too much credit. The theoretical advances celebrated by Delgado and other progressive critics of the First Amendment are not really advances at all. They are simply refurbished versions of arguments used since the beginning of modern First Amendment jurisprudence to justify government authority to control the speech (and thought) of citizens. The fact that these arguments are now being used in the service of different social and political ends cannot cloak the fact that the underlying theories are the same ones that justified the prosecutions of antiwar protesters, socialists and anarchists in the early years of this century.(7) Moreover, despite the different objectives of the new censors, their reasons for supporting government control over speech are not significantly different from those of their reactionary predecessors. Both the new and the old censors fear political radicalism and its supposed attractiveness for the masses; both seek to implement an elitist system of value development, under which individuals will receive constant guidance from an enlightened government on the subject of public morality; and both insist that the principles of free speech should be treated as indistinguishable from the often dangerous or despicable principles of those who enjoy its protection. Thus, both the new and the old censors use prejudice against a practitioner of speech (communists, anarchists and conscientious objectors in the old days, "pornographers, the Nazis and the Ku Klux Klan"(8) today) to justify opposition to the principles that allow disfavored speakers to gain access to the public,s eyes and ears.

This Article assesses several major components of the "new" progressive theories of censorship and details the similarities between these new theories and earlier ones. The Article also addresses the obvious consequence of this analysis. Just as the new arguments for censorship track the old justifications, the old arguments against censorship -- tracing back to Milton, Mill, Holmes and Brandeis -- remain responsive to the flaws of any theoretical system in which government is empowered to regulate speech and thought.

This Article is structured around what Sullivan has identified as the three cornerstones of postmodern censorship theory. Thus, Part I is devoted to the postmodern theory of social constructionism, Part II addresses the postmodernists' rejection of the public/private distinction, and Part III discusses postmodern egalitarianism.(9) In each of these parts, I will address the corresponding arguments of three main branches of postmodern censorship theory: critical race theory, represented by Richard Delgado, Mari Matsuda and Charles Lawrence; civic republicanism, focusing especially on the work of Cass Sunstein; and the branch of feminism usually associated with the writings of Catharine MacKinnon.(10) Specific problems with the various forms of postmodern censorship theory will be detailed at length below, but the critique that follows is oriented around a consistent theme: The postmodern censorship theory offered by this new generation of politically progressive legal scholars is neither progressive nor, for that matter, even "postmodern." In the end, it is just censorship.

1. Postmodern Censorship and Social Construction

   The social constructionist argument is perhaps the clearest thread linking the various groups proposing new theories to justify speech regulation. Some version of this motif is the centerpiece of critical race, civic republican and feminist treatments of free speech. Although each group emphasizes different factors, the central argument is the same: Everyone in society is "constructed" by his or her society; antisocial individual behavior will occur as a direct result of the socialization that an individual experiences in his or her everyday life; such behavior cannot effectively be controlled solely through the application of disincentives or postbehavior punishments for illegal action; therefore, factors contributing to individual socialization must be subject to governmental control in order for the government adequately to protect every citizen,s full participation in the society's social and political life.

   The details emphasized by the different procensorship factions merely flesh out the central components of the argument by relating the claims concerning adverse socialization to the particular experiences of specific groups. These details bear out that the postmodern censors are true radicals in the sense that they define the world in a way that is contrary to the common understanding of those outside their ideological fold. The postmodern censors are also deeply conservative, however, in that they would reinstitute a degree of government control over speech and thought that has been unknown since World War II -- and they would do so precisely so that the government could mold political reality to its own liking. Thus, the instincts of the postmodern censors do not reflect the deeply antigovernment biases of the radical anarchists, conscientious objectors and antiwar (and thus necessarily antigovernment) left-wing radicals of the early twentieth century. Ironically, the new censors have instincts about speech and behavior that track the rigid, hierarchical and deeply reactionary predilections of the government that fought hard to silence earlier generations of radicals. Thus, the postmodern position on censorship...