Postmodern censorship revisited: a reply to Richard Delgado.

• Author: Gey, Steven G.
• Position: Response to article by Richard Delgado, University of Pennsylvania Law Review, vol. 146, p. 865, 1998

Richard Delgado's recent response(1) to my article, The Case Against Postmodern Censorship Theory(2), provides a concise example of the phenomenon addressed in my original piece. Professor Delgado's essay illustrates many of the problematic characteristics I find scattered throughout postmodern censorship theory--in particular, its failure to address the broader consequences of proposed doctrinal change in free-speech jurisprudence, its tendency to slide into rhetorical excess and allegations of bad faith against those who challenge the wisdom of broad speech-regulation proposals, and its political naivete. Unfortunately, Professor Delgado's response adds little to what he has already said on the subject and does not confront many of the very difficult issues at the heart of this debate. It strikes me as a political response, not an academic one.

At one level, therefore, my inclination is simply to suggest that readers go back to the original sources--my article and the work of various postmodern censorship theorists cited therein--and leave it at that. On the other hand, I fear that some readers will read Professor Delgado's succinct response and avoid wading through the original 104-page document. Those readers will be left with an inaccurate impression of what I said in my article, and an equally inaccurate impression of the real issues in these discussions. To avoid these misunderstandings, I feel obligated to respond to what Professor Delgado said, and to comment briefly on what he did not say.

1. PROFESSOR DELGADO AND THE PROBLEM OF DISTORTED PERSPECTIVES

   Professor Delgado seems especially concerned about the fact that my article considers postmodernist proposals to regulate hate speech and pornography in the context of the long history of badly misconceived government efforts to regulate other types of antisocial speech. He even complains that I refer to such proposals as "censorship" and to proponents of the new regulations as "new censors."(3) This is not, as Delgado claims, an effort on my part to heap sarcasm on my adversaries;(4) I use the words "censorship" and "censor" in their ordinary senses--as objective descriptions of the proposals under discussion. "Censorship" is the act of censoring, and the verb "censor" means "to alter, delete, or ban completely after examination."(5) As I understand it, the proposals of Delgado and similar theorists are intended to "alter, delete, or ban completely" hate speech, pornography, and other types of antisocial expression. Thus, the term "censorship" accurately describes the intent and effect of these proposals. A glance at the dictionary also provides a definition of the noun "censor" that describes precisely the role assumed by Delgado and other proponents of new speech regulations: "[O]ne who lacking official sanction but acting ostensibly in society's interests scrutinizes communications, compositions, and entertainments to discover anything immoral, profane, seditious, heretical, or otherwise offensive."(6)

   Although I intend to convey disapproval by using these terms, I do not believe the use of this terminology automatically determines the outcome of the debate over the legitimacy of new speech regulations. I recognize that people of good faith can honestly disagree about whether censorship is justified in particular circumstances, and I respect the opinions of those who disagree with my position on the matter. But Delgado's refusal even to acknowledge the obvious thrust of his proposals allows him to avoid addressing difficult questions about the implications such proposals will have for a wide range of political, social, and cultural speech. Instead of confronting these issues, Delgado tries to isolate the discussion from numerous other attempts to cede control over communication to a virtually unrestrained political process. More insidiously, Delgado falls back on the recitation of emotional hypotheticals to challenge my analysis, and ascribes to me views that I do not hold and did not assert in my original article.(7)

   Perhaps the most egregious example of mistaken attribution is Delgado's claim that I argued against new speech regulations because minorities are "too close to the problem [of hate speech] to write about it objectively."(8) Likewise, Delgado cites my "contention that minorities have no business writing about hate speech because [they] are blinded by self-interest."(9) According to Delgado, the fact that I overlook how my "own argument cuts both ways is telling."(10) He ascribes this to something called "white transparency," which "shows how the white point of view masquerades as colorless, raceless, and systematically devoid of bias."(11)

   These assertions not only misconstrue what I said in my article; they actually attribute arguments to me that I found implicit in the postmodern censorship literature itself. The passages of my article to which Delgado addresses his comments(12) were a specific response to the claim of postmodern censors that all people are "constructed" by social conditions and therefore view reality in distorted ways. My point was that social-constructionism arguments are inevitably self-defeating because proponents of such arguments must concede that they, too, are "constructed" and therefore have a distorted perception of reality. Delgado's indignant claim that the "argument cuts both ways" sounds familiar because it was the very point I made in my article.

   The most revealing aspect of Delgado's claims regarding my earlier work is that he ignores my specific and unambiguous disavowal of the very view he attributes to me--the view that minorities are "blinded by self-interest" or incapable of writing about these problems objectively. I do not intend to weigh down this response with long excerpts from my previous work, but it is important here to demonstrate how clearly I made this point in the original article. I wrote:

   None of this criticism is meant to suggest that Professors Sunstein or

   Lawrence or any of the other postmodern censors are deluded or irrational

   or incapable of accurately perceiving or describing reality. I

   mean only to take note of the fact that the postmodernists cannot escape

   the corrosive effect of their own arguments regarding social constructionism

   and distorted preferences. If everyone's view of the world

   is irretrievably distorted by the observer's socially constructed psyche,

   then no one, including the postmodern critics of present reality, can escape

   their own distorted perceptions in order to critique society and

   suggest solutions to our problems.(13)

   Ironically, after zealously attributing to me a proposition I explicitly rejected, Delgado then suggests that I allowed my "zeal" to affect my "scholarly objectivity."(14) Perhaps the syndrome is contagious.

   In other, more subtle ways, Delgado misconstrues my position by oversimplifying my claims and finessing the contradictions of postmodern censorship that I detailed in my article. For example, Delgado objects to my characterization of speech regulation as an example of powerful political actors squelching the speech of speakers who lack political power. Delgado objects to the fact that "[I] write[] as though minorities were now in charge and running things."(15) With regard to university speech codes, he argues that "it is our very powerlessness and vulnerability that cause a few universities to consider passing hate-speech rules."(16) But in the very next paragraph, Delgado cites an argument he had made previously that campus officials tolerate racist speech because "racist speech benefits powerful white-dominated institutions" by keeping "non-white people on edge, a little off-balance," and eventually "assur[ing] that those of us of real spirit, real pride, just plain leave."(17)

   Delgado neglects to mention the fact, noted in my article, that the university officials whom he criticizes for intentionally benefiting "from a certain amount of low-grade racism in the environment"(18) are the same officials that took his advice at the University of Wisconsin and adopted a hate-speech regulation governing the expression of "low-grade racism."(19) Delgado's reductive view of reality not only leads him to ignore inconvenient facts such as these; his view also inhibits his analysis by allowing him to avoid addressing the very complicated political dynamics that produce speech regulations such as the University of Wisconsin speech code. The dynamics of speech regulation do not, as Delgado suggests, automatically correlate with race. Many members of racial minorities do not support speech regulations, while many members of the racial majority support such laws. Moreover, even if every member of every racial minority group supported postmodern speech regulations, they would not have sufficient political power to enact and enforce broad new limitations on speech. Additional support for this legislation therefore must come from politically powerful members of the racial majority. Delgado implicitly acknowledges this fact by chiding me for supposedly suggesting that "minorities [are] now in charge and running things."(20)

   By recognizing that minorities are not in charge and thus must rely on the support of other political factions to achieve their goals, Delgado also must acknowledge that speech codes and other regulations of antisocial expression can only be adopted with the support of these different factions. This acknowledgment is problematic for Delgado, because these factions will have interests in regulating speech that are very different from the interests of the postmodern censors. (The odd antipornography alliance of MacKinnon-style feminist activists, conservative Republicans, and elements of the Religious Right provides the clearest example of joint action against speech by political opposites.(21)) The need for a political alliance to enact and enforce speech regulations undercuts much of the postmodern case for...