Exhibit Opening Commentary
by Frosty London
U.Va. Alderman Library, October 2000
FDR's speech-making hints to one of his sons: be sincere, be brief, be seated. I promise only to be sincere. I am a recovering journalist. That's a high-falutin' term for an editor or reporter who is out of work. Before I retired as editor in Roanoke in 1995, I told audiences that journalists were as popular as bill collectors and lawyers. But NPR reported recently that journalists make even lawyers look good. Janet Malcolm, in the New Yorker more than a decade ago wrote that all reporters are essentially con men, "preying on people's vanity, ignorance or loneliness, gaining their trust and betraying them without remorse." Apparently she never heard the admonishment from William Blake: "to generalize is to be an idiot." Harry Truman could also generalize: he thought newspapermen were even dumber than congressmen. (Back then, perhaps true!)
It is a great privilege to be with you, and I want to commend Alderman Library, University Librarian Karin Wittenborg and the University of Virginia for mounting this important exhibit, not just here but also on the Internet.
I particularly like the introduction: "This exhibition hopes not so much to judge censors and censorship but instead to provoke questions. As you move through the exhibition, we invite you to consider whether or not there are restrictions which you might impose on the First Amendment." I of course reserve the right to judge censors in this talk! As each of you surely knows, even ex-journalists regard the First Amendment as sacred.. The First Amendment belongs to all of us, and it says to all of us: An open marketplace of ideas is vital to a democracy -- whatever the medium for the message, be it today's sidewalk chalk or Internet postings or the Grapes of Wrath in hardback of yesteryear. It once was said: Freedom of the press belonged to the publisher who bought ink by the barrel. Now, as University of Richmond's First Amendment scholar Rod Smolla has said, with the Internet, everybody is a publisher. Fortunately, there is significant public support for free speech on the Internet. Seven-four percent of respondents to a recent First Amendment poll agreed that "material on the Internet should have the same First Amendment protections as printed material such as books and newspapers." But we can expect continuing attempts to censor the Internet because it has such extraordinary potential to make everybody a publisher, and to build all around the world an open marketplace of ideas.
But first some general comments to underscore the importance of our First Amendment freedoms, and to disclose fully my own near-absolutist views about government censorship. Unless the issue comes up in the question-and-answer period, I'll not have much to say about non-government restrictions on freedom of expression, whether on the movie screen or the computer screen, in the columns of the New York Times or the Daily Press, in the lyrics of the rap musicians or the codes of ethics that journalists sometimes follow. Because I'm an activist for access to government information, my comments will mostly focus on the dangers to a self-governing society from attempts by government, legal and illegal, to control information.
But this exhibit rightly asks you to consider many of those other free-speech issues, and to reflect on whether self-regulation by media, old or new, is a form of censorship also. Interestingly, at least one dictionary I checked defined a censor as any person who supervises the manners or morals of others. I do think that a certain point, when government uses not just a bully pulpit to suggest better self-regulation but actually forces regulation, then of course we are still seeing a form of censorship by government. At what point does the implied threat of government control in fact constitute government censorship? Not easy to draw that line. But we should stay vigilant, for it's a great temptation, in Washington and Richmond, to suppress subtly by intimidation. Or, as The Washington Post has said, "The line between urging self-restraint and threatening government censorship is a thin one. The White House, no less than Congress, needs to watch its step." As civil libertarians always warn, it's a slippery slope that starts with politically popular calls for voluntary self-policing . . . and winds up as state censorship.
The past few weeks of election campaigning have seen a whirlwind of activity with regard to supposedly violent content contained in movies, music and video games purported to be marketed toward teens and children. This has culminated in two hearings before the Committee on Commerce, Science and Transportation of the U.S. Senate during which the entertainment industry was taken to task for both its content and its marketing practices. The industry has long been criticized for the content in its movies, music, television programs, books, magazines, video games, etc. Most of this criticism stems from the perception that the content in these media is excessively sexual or violent in nature. It will be interesting to see if these cynical pressures for regulation continue after the election.
The risk of state control of music and the arts increases, of course, when tax dollars are tapped for the arts. Should taxes support the arts if citizens find them offensive, dangerous or exploitive? In the mid-90s, the answer was No, at least in the House of Representatives, But the pendulum has swung back, at least for the moment, and public funding of the arts has continued without overt censorship. In Virginia recently, even Gov. Gilmore emerged as an art critic, protesting some of Sally Mann's slides shown at a Richmond museum that gets some support from state taxpayers. Implicit in the criticism, as everybody knew, was a threat to cut off that funding. Fortunately, this exhibit reminds us of something much worse -- Nazi Germany's ham-fisted suppression of music not so very long ago.
As you will see throughout this exhibit, when censors wield the red pen, history itself gets rewritten. Or as George Orwell's Ministry of Truth kept saying, he who controls the present, controls the future and the past. We're all drowning in information -- and much of it is misinformation. I am an ardent advocate of more information, but I want it to be quality information. I just don't want government taking on a Big Brother role and defining the words, or worse. It's always hard to distinguish between reputable vs. questionable information. I wish the education system could get a better handle on how to teach the skills of critical thinking - so each of us could better evaluate the quality of information, especially in a future with fewer gatekeepers. Librarian of Congress James Billington has noted, "It's significant we call it the Information Age. We don't call it the Knowledge Age." Somehow, we must convert information to knowledge; otherwise more information may not be worth much. A writer in The Washington Post once lamented, "We can surf the web for hours, yet find nothing written before 1995."
So it's great that this exhibit is online. (It's distance learning, at its best.) Of course, when I got to the pull-down menu for banned books and Catcher in the Rye's "785 dirty words," I was disappointed to find there was no search engine, no hot links, no way to re-read all those 785 dirty words. I the interests of full disclosure, I should reveal that my son probably read the entire book 785 times. Book-banning is always serious. We should remember it was just a few months ago that the head of the English department at a Rockingham County high school posted a list of banned books on his office door -- and got run out of the county because one or two people complained.
Consider some of the 68 other titles in this exhibit about banned books: Raisin in the Sun The Sun Also Rises Grapes of Wrath To Kill a Mockingbird (Hanover County) George Orwell, Animal Farm Lady Chatterly's Lover Margaret Sanger's birth control pamphlets James Joyce's Ulysses Even Harry Potter Anti-family, violent content, occult themes? How silly! Uncle Remus is fast fading from even library shelves. Huckleberry Finn was the fifth most banned book in the last decade. Clearly there is a danger that the politically incorrect will get banned into obscurity. As long as there are books, there will be would-be book-burners. If only for that reason, it's good to remember the words of John Milton, 1644 (speaking to the British parliament against licensing of books): "He who kills a good book kills reason itself."
Nicholas Negroponte, MIT, has said: "Words will remain the most powerful way for humans to communicate with one again -- but books as we know them may become obsolete." (I hope he's wrong!) (Negroponte, incidentally, envisions a computer of the future lodged in a shoe; Maxwell Smart was ahead of his time) I thought we had just about gotten past the attempts to suppress speech about explicit sexual matters. Then the other day the Lynchburg school board almost voted to tear out a page from each of its 11th grade textbooks that pictured the female vagina. Good sense eventually prevailed..
Paul McMasters, the Freedom Forum's First Amendment ombudsman, underscores the problem with this comment: "Those who would ban books come from all sectors of society, regardless of ideology or religious belief. If each sector of society is allowed to remove its slice of the First Amendment pie, there'd be nothing left of free speech but crumbs." That is why I hope this exhibit stays on line forever. Maybe someday, all of these banned books will be online; then, you can even offer hot links to the full text of everyone of them, with or without search engines for those who only want to see supposedly "dirty words." The exhibit tells us that ultimately, censors are unable to suppress. But what sacrifices occurred along the way until freedom of expression prevailed! Adults should have the freedom to read what they want, almost always.
Mark Twain: By the goodness of God we have three unspeakably precious thing: freedom of speech, freedom of conscience -- and the prudence never to practice either of them. Fortunately, there is abundant evidence here that at least a few brave souls will always speak out.
The First Amendment -- particularly its free-speech guarantee -- is our overarching constitutional principle, the one core value that has kept this republic in one piece ever since the colonies revolted. I also would argue that free access to information is embodied in our First Amendment ideals -- although few courts have ever said that.
But, to quote the chairman of the Freedom Forum, Charles Overby: "Unfortunately, the First Amendment has a problem. Not enough people know what it stands for. Not enough people stand up for it. And it's coming under attack more often. In fact, polarizing issues are evident at every turn -- which sometimes makes it tough for reasonable people to solve tough issues with reason."
Roger Rosenblatt once wrote that our Bill of Rights and the first of the 10 amendments launched us on a journey of self-discovery -- one that should take us away from self-interest and toward some common benefit: "That jerry-built, troublesome afterthought to the Constitution did not merely guarantee a range of personal freedoms; it said in effect that Americans are free to discover their moral selves -- to say and write whatever we wish, within reason, and thus to realize by the exercise of that freedom who we are and might become. " For the 200th anniversary of the Bill of Rights, Life magazine rephrased the First Amendment as if it were a wholly new proposal, and took a Gallup poll to see if today's Americans would still approve it. Even in these times of passionate rhetoric about abortion and flag-burning, three quarters approved -- which may be more than approved the original.
But do we really understand what the First Amendment is all about? In this year's State of the First Amendment poll, conducted by the Freedom Forum, one half of the American public said the news media have too much freedom. More than one-half said press should not report what the government does not want reported. Yet 70% say they don't trust government. If government guards us against media excess, who, then, guards government? About one-half said public speech that is offensive to a member of a religious group should not be allowed.
Two-thirds said speech that offends racial groups should be banned. And nearly 80 percent would support restrictions on flag burning as an act of political protest. Ken Paulson, president of the Freedom Forum, has said that our founding fathers could not have foreseen the effects of today's popular culture, but they recognized the right to express unpopular opinions is the cornerstone of a democracy. Every year, an average five American flags are burned in an act of political protest. Each year Congress tries to pass a Flag Desecration Act. If passed, it would be the first in America's history to restrict our Bill of Rights. Burning of the US flag, however repugnant to each of us, should it be protected free speech, as a majority of the Supreme Court has said. The US House of Representatives and a majority of the US Senate disagree. Former ASNE FOI chair Stan Tiner told Congress: "America is a haven for freedom, where all kinds of thinking can occur, and where free people can speak their minds without fear of state police. The impuse to restrict those individual rights is as ancient as the very history of mankind. But we are better than that impulse." Well-intentioned, patriotic Americans who support a ban on flag burning need to heed Tiner's message. So do members of Congress who care more about polls than principle. One-third of the country is functionally illiterate. The may help explain why 7 out of 10 Americans don't recognize the First Amendment when they see it, and why one-third cannot name even one of the five First Amendment freedoms. (No wonder one-half don't ever vote!)
You say you trust your government?
Jefferson, 1788: "The natural progress of things is for government to gain ground and liberty to yield." Or as Ronald Reagan said: Trust but verify. Be skeptical of those in power. Federal government creates 1,000 new secrets every day -- 400,000 new secrets in one recent year. Still classified is a 1917 memo on intelligence-gathering methods. $5-$6 billion a year just to maintain the federal government's secrets.
3 million government employees can classify a federal document -- two million, just in the military. National security should be invoked to protect troop movements -- not to keep us from knowing of embarrassing policy mistakes. Pentagon papers (1971) showed that government had lied to the American people about Vietnam. In that case, Justice Hugo Black warned:
"Every moment's continuance of an injunction against newspapers amounts to a flagrant, indefensible, continuing violence of the First Amendment."
In Boston, the Kennedy library -- run by the National Archives and Records Administration -- distorts the Kennedy record by censoring pages of oral history to avoid anything that might detract from the Kennedy image. We should not want the press to be an instrument of government or a mouthpiece for our rulers. As a Washington Post writer once reminded us: If you are going to have a watchdog, there will be mistaken barking. John Gardner: If you want the hen to lay hegs, must put up with some cackling. That's why Madison wrote those extraordinary words: Congress shall make NO law abridging the freedom of speech or of the press.
Two centuries later, what is it about NO that we don't understand?
Hugo Black: It means what it says. To an absolutist like Black, it thus was easy to defend publication of the Pentagon papers. But we don't have many Hugo Blacks. Press freedom is not intended to give reporters special privileges -- but they enjoy a constitutionally assigned role as surrogates or public ombudsmen to serve the interests of the larger society. Yet public opinion surveys tell us as many as two-thirds of the American public believe there are times media should not be allowed to publish or broadcast certain things. Not that people trust government. A generation ago, 75% did; now, 20%. 70% think government is more corrupt than it was 2 decades ago. That said, you'd think there would be a broad constituency for Freedom of Information -- even amid legitimate concerns about big media conglomerates and threats to individual privacy. Instead there's massive public indifference and, in legislatures, a lot of press bashing (journalists make cheap targets).
Only in the last three and a half centuries have great thinkers argued that truth prevails when people are free to express themselves. Before that, those who uttered truth got punished for it . . . And it was little more than two centuries ago that Madison and George Mason and Thomas Jefferson made sure we embraced that concept in our fundamental law. When the First Amendment was first drafted, it was intended to be a restraint on central-government power. In today's era of big government, that need is even greater. That's why we need a greater appreciation of why those 45 words are in the First Amendment -- to protect people from government. Prior restraint against freedom of expression has been prohibited ever since the demise of the Alien and Sedition acts - and in a large sense we have Jefferson to thank for that.
Judge Learned Hand summed it up this way: "The First Amendment presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many, this is, and will always be, folly -- but we have staked upon it our all."
Jefferson knew that debate was the best way to suppress a bad idea. Back then, political leaders didn't consult a poll Walter Cronkite: "The more voices out there, the more likely you are to find the truth among the babble." In these times, citizen web pages are providing those new voices.
First Amendment says, with no ifs/ands/buts: "Congress shall make NO law abridging the freedom of speech or of the press." But what does that word "abridging" mean? That's where the tough issues arise, for lawmakers, for the Supreme Court and for us near-absolutists. The Virginia Bill of Rights -- Article 1, Section 12 of the Virginia Constitution -- not much help either: "The General Assembly shall not pass any law abridging the freedom of speech or of the press; any citizen may freely speak, write and publish his sentimenents on all subjects, being responsible for the abuse of that right.
Unresolvable conflicts inevitably arise from those words -- especially for cultural conservatives. But people with prejudices are not without First Amendment rights, as Nat Hentoff wrote in the Post recently. Fortunately, few politicians are against civic virtue -- so our challenge at the state and federal level is to make open government a civic virtue. Give us the freedom to search for information, with nobody controlling its flow!
Samuel Gompers, 92 years ago: "The freedom of speech and the freedom of the press have not been granted to the people in order that they may say the things which please -- but that (they have the) right to say the things which displease." Dunagin's People, the cartoon panel, said it this way more recently: A citizen is holding up a newspaper with a headline, "Decency on Internet." She tells her companion: "I just wish it wasn't always the crummiest people fighting our First Amendment battles for us." Jean Otto, president of the now-defunct First Amendment Congress: "We must give the same freedom to speech we hate, as to what we love" -- just as the Supreme Court has affirmed many times, in saying the answer to speech we dislike is more speech. Defending free speech is not always easy. The late Harriet Pilpel noted: "It is easy to embrace freedom of speech for ideas we accept; it is hard to protect ideas we hate." H. L. Mencken said it well: The cure for the evils of democracy is more democracy. Just because free speech protects people like Larry Flynt is not a reason to admire him -- but he must be tolerated. Otherwise rationale people who generally see the risks of government power are wlling to permit a government crackdown on speech, over the airwaves, in print, on the Internet Oliver Wendell Holmes explained it a long time ago: "the natural inclination when you don't like what somebody says is to shut him up."
We should not forget what James Madison wrote: Knowledge will forever govern ignorance. In a system of self- government, people "must arm themselves with the power which knowledge gives." He introduced the First Amendment as a member of the first U.S. Congress. Born 249 years ago in neighboring Orange County.
A lot of people demonize the Internet these days. But as one intellectual property lawyer has written: "Technology has inexorably begun the process of dismantling centralized control by governments, bureaucracies and corporations." Cyber-government is in its infancy. But just in the last few weeks, the federal government launched Firstgov.org -- a home page that actually offers hope of breaking down barriers between citizens and government. As speakers said Friday night on a public-TV program, the Net is radically changing the relationship between citizens and government, and the way government works. It has the potential to replace middle levels of bureaucracy, and enable the citizen to get government information and services online, without ever knowing which agency does what. An information-technology revolution is occurring at the state and local level as well. All of a sudden even our property taxes are online. But many government agencies are years away from providing fully interactive services to the public. Some people simply don't want stuff on the Net. Some fear it will be too easy to find government records, even though the information already is public. Some invoke privacy concerns simply as an excuse to keep information from us. Justice John Stevens has written: "The Net is much like the town crier of old, but on a global basis, empowering each individual citizen to own his own bully pulpit and his own printing press."
Some concerns are valid.
Do we need greater privacy protections, for example, simply because a computer can sort through public information fast? However that shakes out, we should continue to guarantee full First Amendment rights for electronically transmitted information provided by online information services. The net is largely an extension of the printed word, as most court rulings have held. The most important of those cases, the landmark Internet free-speech case, featured an uneasy coalition of counterculture academics and computer types, and gigantic commercial interests. They agreed on one thing only: Web filtering could not work, Internet censorship was unthinkable. I thought it significant when a Michigan town last February voted 55%-45% not to force their public library to filter Web access. The vote came on a 41% turnout, in Michigan's so-called Bible Belt. There's no consensus yet on what the Internet rules ought to be, if any -- not in matters of information access or in matters of personal privacy. . . and, in China at least, certainly not in matters of government regulation.
However, as the Supreme Court repeatedly has said, government has a right to protect minors from "indecent" and "patently offensive" speech, and it has a right to prohibit hard-core obscenity in any forum. Loudoun County's library tried to install filtering software on all of its public access terminals, dumbing them down to a level appropriate for juveniles. It also wanted to bar access altogether for people under 18 unless they had written permission from parents or guardians. So much for celebrating the library as a place for ideas. In the name of protecting children, Loudoun's board would have us infringe on the free-speech rights of adults with a wholesale installation of censorware. As Judith Krug, director of the American Library Association's Office for Intellectual Freedom, has argued, it's never been the librarian's job to keep people from hearing what other people say. If we expect people to be self-governed, they must be informed. The right to seek and receive information is at the heart of our political system. Software exists that permits parents to block transmissions they do not want young children to see. Parents have the right to censor ideas. The State does not.
But many parents abdicate their responsibilities. If only for that reason, minors' exposure to sexual speech will always be an emotional issue, on the Net or off, for 12th graders as well as 6th. I believe public libraries must shield young children from harmful materials, on or off the Internet . . . and without interfering with everybody else's First Amendment rights. I would be the first to argue that if a librarian spots somebody in its computer station viewing a homepage that children should not see, he ought to be told to turn it off if kids are around. Some libraries have adhered with puritanical fervor to the Library Bill of Rights, which states that a person's right to use a library should be denied because of age; that the rights of users who are minors shall in no way be abridged." If we're talking about 7-year olds, not 17-year-olds, a minor's protected right to use the library should NOT mean a right to look at a web page with soft-core porno, whether or not a parent is around. One size does not fit all. But we always need to remember, filtering software, whether it is called SmartFilter/SurfWatch/CyberPatrol/whatever -- works both ways: It keeps you from seeing stuff, it also helps you find stuff.
Digital Media Forum reported last week: 92% of Americans believe porno should be blocked on school computers; 70% said filters should be used to bar hate speech. More affluent and more educated respondents oppose government interference, but there is broad support across income, race and educational groups for requiring school filters.
As courts repeatedly have held, for young childen, it's a protection, not censorship. Yet Marc Rotenberg, director of the Electronic Privacy Information Center, insists that installing filters on school computers is akin to banning books from a library. I disagree - particularly for the 6th grader, or the 3rd, or the first.
Most of us would wish for a decent public culture -- and in the cultural tug of war that's now under way across the country - and not just in the election campaign - risks of government censorship are heightened. But as Anthony Lewis has written: The First Amendment does not require a further coarsening of society. We see signs of moral and artistic bankruptcy everywhere: trash TV, Larry Flynt's porno magazines, rap lyrics that celebrate sodomizing of women. Herbert London, James M. Olin profess or humanities, NYU, urged in a recent op-ed piece: Using shame, not censorship, to clean up Hollywood. Shame may be in short supply in the nation at the moment, he wrote, but it does exist and could be a weapon against Tinseltown. Call on board members of the entertainment companies to justify the obscene lyrics of singers. Call on Hollywood producers to explain gratuitous violence It's been said that what is shouted often enough from the top of the roof will not fall on deaf ears. So perhaps we should shout instead of asking government to be our Nanny. But vulgarity is not new. John Adams called Alexander Hamilton a creole bastard Nor has the First Amendment ever been absolute. As that great philosopher, Bart Simpson, once reminded us: "The First Amendment does not cover burping.
The Thomas Jefferson Center for Protection of Free Expression id a poll a decade ago that underscored how "schizo" we all are about censorship. The poll indicated 90 percent of us were absolutists when the issue was our own freedom to speak. But on issues such as government censorship on the sale of records with sexually explicit lyrics, or lyrics favoring drug use or the broadcasting of music with sexually explicit themes, more than one-half endorsed censorship.
As James Jackson Kilpatrick wrote: The poll was saying: "Don't tell ME what I may say or read or listen to, but it's perfectly OK to tell somebody else he may not express himself in ways that offend me." The TJ Center will defend the right of an individual, wrote Kilpatrick, "to think, to see, to read, to say, to sing, to print, to sculpt, to film, to paint, or to embody beliefs or ideas, graphically or symbolically." Rod Smolla once wrote: "The question is not what we are allowed to do under the First Amendment, but should do. Screams and slogans do not make discourse As our language becomes fractured, our community becomes fragmented. As a people we need to . . . learn to genuinely communicate, in two-way conversation, race to race, religion to religion, party to party, profession to profession. The interlocking freedoms protected by the First Amendment are, in the end, about communication and connection, challenging us to speak, chiding us to listen." A central challenge, he said, is to bring our wild-eyed individualism into balance with our desire to create a decent and humane national community. We might start by talking to each other as mature citizens, he suggested, Winston Churchill once said "democracy is the worst form of government -- except for all the others." The presidential campaign proves just how insightful Churchill was. Watching the debates reminded me of a quote from a Fortune writer: "The truth doesn't need to be managed, it needs to be told."
Justice Brandeis once said: "The highest responsibility is that of being a citizen. Many duck the responsibility. But many do not. When citizens are well informed, they are engaged in civic life. They read. They listen. They vote. And, contrary to the views of some, they generally can be counted on to make good decisions, in the voting booth, and at the public hearing."
Ultimately, those good decisions will mean defeat for government censors, just as in the past. That, above all else, is the message of hope that emerges in this exhibit, however difficult the censorship struggles of the past.