Censorship Is Not the Answer

Chris Finan

Chris Finan, president of the American Booksellers Foundation for Free Expression and author of the forthcoming From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in America (Beacon Press), recently explained to readers of the San Francisco Chronicle why a lawsuit filed by the Humane Society of the United States will have a chilling effect on books and magazines that are protected by the First Amendment's guarantee of freedom of speech and freedom of the press. This Open Forum column originally appeared in the Friday, March 2, edition of the newspaper.

By Christopher M. Finan

Censors often act with the best of intentions.

They see some books and magazines as incitements to harmful and even illegal acts -- and they're right. "Every idea is an incitement," U.S. Supreme Court Justice Oliver Wendell Holmes Jr. wrote in 1925. "Eloquence can set fire to reason."

The lawsuit filed by the Humane Society of the United States in an effort to ban the sale of two cockfighting magazines is undoubtedly motivated by its strong desire to protect defenseless animals.

But even the most well-meaning organization makes a terrible mistake when it attempts to advance its mission through censorship.

Like all censors, the Humane Society believes that the material that it opposes is so clearly identifiable that it can be suppressed without any danger that it will have a chilling effect on books and magazines that are protected by the First Amendment's guarantee of freedom of speech and freedom of the press. It contends that the magazines Feathered Warrior and Gamecock are "criminal materials" because they contain ads for the sale of fighting birds.

But history demonstrates that government inevitably abuses the power to censor. Under the Comstock Act of 1873, the government tried to suppress not only "obscene" books and magazines, but important literary works with sexual content, including novels by D.H. Lawrence, James Joyce, Theodore Dreiser, and Ernest Hemingway. The Comstock Act was also used to prosecute Margaret Sanger and other advocates of birth control and sex education. During World War I, the Espionage Act targeted spies and saboteurs, but it also was used to convict more than 1,000 Americans who had merely criticized the war.

In reaction to these abuses, the U.S. Supreme Court has gradually eliminated almost all restrictions on free speech. In 1968, in the case of Brandenburg vs. Ohio, it ruled that even calling for the violent overthrow of the government is protected by the First Amendment so long as the would-be revolutionary does not cross the line between advocating the idea of revolution and directly inciting people to engage in illegal acts.

It is this distinction between advocacy and incitement that the Humane Society is depending on in its lawsuit against Amazon.com and the publishers of the two cockfighting magazines. It hopes to persuade the court that the ads in the magazines are incitements to criminal acts and that the magazines must be banned for violating the federal Animal Welfare Act.

But the lawsuit faces enormous hurdles. While the Humane Society claims that Feathered Warrior and Gamecock are "criminal," they have never been declared to be illegal. They contain articles about an activity that is still legal in two states. The Humane Society has acknowledged that the magazines include political speech, which is at the heart of what the First Amendment is intended to protect.

The Humane Society is also guilty of exaggerating the scope of the Animal Welfare Act. Its ban on shipping materials that "promote" animal fighting has been applied only to people who stage the fights. It has never been used to punish the publisher of a cockfighting magazine or any of its advertisers. It is even more unlikely that a court would punish a bookseller who has no way of determining whether a cockfighting magazine contains illegal material. The Humane Society has allowed passion for its cause to blind it to the fact that it is attacking free speech, the freedom that a democracy needs most.

It should remember the words of Justice Holmes. "If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought -- not free thought for those who agree with us but freedom for those we hate," he wrote.