Foreword

by Robert B. Downs

IT IS HIGHLY SIGNIFICANT that when the Bill of Rights was added to the U.S. Constitution in December 1791, after being ratified by the required three fourths of the states, the First Amendment specifically stated, "Congress shall make no law . . . abridging the freedom of speech or of the press."

One hundred and fifty years later, when America was on the verge of war with the Axis powers, Franklin D. Roosevelt enunciated the Four Freedoms: "In the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms. The first is freedom of speech and expression everywhere in the world".

Reaffirmation from another distinguished source came on December 14, 1946, when the UN General Assembly resolved, "Freedom of information is a fundamental human right, and the touchstone of all the freedoms to which the United Nations is consecrated." Eloquent statements of faith in free expression have come from various spokesmen. Illustrative are the views of a great American jurist and a distinguished American historian, Louis D. Brandeis and Bruce Catton. Justice Brandeis, in Whitney v. California, emphasized that "Those who won our independence believed that . . . the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means . . . They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; . . . that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government".

The same basic truth was restated by Bruce Catton: "The greatest of all American traditions is the simple tradition of freedom. From our earliest days as a people, this tradition has provided us with a faith to live by. It has shaped what Americans have done and what they have dreamed. If any one word tells what America really is, it is the one word--freedom . . . The secret of the American tradition is freedom--freedom unabridged and unadulterated, freedom that applies to everybody in the land at all times and places, freedom for those with whom we disagree as well as for those with whom we do agree."

Viewed in historical retrospect, censorship and all varieties of thought suppression are ancient phenomena, exhibiting the same characteristics in every era. One age may be predominantly concerned with religious heresy, another with political orthodoxy, and the next with obscenity and morality. No longer is it customary to burn authors at the stake--as happened, for example, to Michael Servetus and William Tyndale--though under totalitarian regimes they may be imprisoned or exiled, and in democracies deprived of their livelihoods.

Little is heard these days about religious heresy. There is intense concern, however, with obscenity and with unorthodox political opinions.

Legal precedents and practices relating to censorship in America, in common with other aspects of Anglo-American law, have British foundations. The antecedents of English censorship are ancient. Rigid restrictions on the press, in fact, were an important feature of ecclesiastical and state policy from the time of the invention of printing.

Henry VIII in the sixteenth century placed the entire press under a licensing system. Before anyone could publish he must submit his intended work to the government for approval. This licensing system prevailed in England until 1695. Throughout the Tudor and Stuart periods the primary function of the violently-hated Court of the Star Chamber was the censorship of books. Prior to the outbreak of the Civil War in 1642, several flagrant cases had aroused popular resentment against the censors. Offenders were sentenced to long terms in prison, were heavily fined, had their ears cut off and their noses slit, and were branded on the cheeks, pilloried, and otherwise subjected to cruel and inhuman punishments.

In the struggle between King Charles I and the Long Parliament, the detested Star Chamber was finally abolished by parliamentary action in 1641. With its passing, the great poet John Milton anticipated the lifting of arbitrary restrictions on a free press. Parliament, composed overwhelmingly of English Presbyterians, was alarmed, however, by the flood of "scandalous, seditious, and libelous" publications that began to appear as soon as the censorship was lifted. Accordingly, in 1643, the Parliament passed a new censorship act, modeled upon the old Star Chamber rules, but with the distinction that the censors were to be appointed by Parliament. Unlicensed printing was forbidden, and the Stationers' Company (the organized printers and publishers of the country) and the officers of Parliament were authorized to search out and destroy unlicensed presses, confiscate unlicensed books, and arrest all printers and authors who issued uncensored books.

It was at this point that Milton stepped into the censorship fight with a purposely unregistered and unlicensed pamphlet entitled Areopagitica, "for the liberty of unlicenc'd printing," the most celebrated of all his prose works, abounding in eloquent declarations on the transcendent importance of books and in compelling arguments supporting an unfettered press.

Milton's vigorous denunciation of censorship and licensing apparently had no perceptible impact on his own time. The Presbyterians were in an intolerant mood. Parliament was deaf to all suggestions for reform, and press control continued without moderation for the next fifty years. It was not until the accession of William and Mary to the throne in 1689 that a new spirit of tolerance allowed the press licensing act to die.

The first reported case on judicial censorship of obscene literature involved the poetry of a gay young rake, Sir Charles Sedley, early in the eighteenth century. A short time later, Edmund Curll's piratical and flourishing trade in obscene literature was legally estopped. In the same century, Wilkes' prosecution for publishing his Essay on Woman gave that allegedly obscene poem great notoriety.

These isolated incidents were followed during the quarter of the nineteenth century by a rash of cases implicating figures of considerably greater literary stature, notably Robert Southey's Wat Tyler, Lord Byron's Cain and Don Juan, and Shelley's Queen Mab.

England's laws dealing with obscenity are little more than a century old. In 1857 Lord Chief Justice Campbell drafted and steered through the British Parliament the statute of 20 and 21 Victoria. Its author described the measure as "intended to apply exclusively to works written for the single purpose of corrupting the morals of youth, and of shock the common feelings of decency mind."

About a decade after its enactment, the Campbell statute received a classical interpretation at the hands of Chief Justice Cockburn in the case of Regina v. Hicklin (1868). The case involved a pamphlet entitled The Confessional Unmasked Showing the Depravity of the Romish Priesthood; the Iniquity of the Confessional, and the Questions Put to Females in the Confession, an anti-Catholic publication being distributed by a member of a Protestant union. In connection with the case Justice Cockburn formulated his famous rule for judging obscenity: "I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."

As David Fellman pointed out, "The objection to this test, of course, is that it fixes a standard for the community's reading matter geared to the feeblest mentality or most suggestible psyche in the community." Nevertheless, the Cockburn dictum has since served as a guiding principle for a majority of English and American judges. Only within recent years has there been any tendency to break away from its limitations.

Turning from British precedents, a review of "the rise and fall of prudery" or the relation of obscenity to morality in the United States is revealing. The changes in American standards of literary decency over the past three hundred years have been astonishing. We have moved so far from Puritan restrictions that most of the inhibitions of our grandparents seem grotesque. A little more than one hundred years ago, Robert Browning's Man and Woman was widely denounced as immoral; shortly afterward, Walt Whitman was accused of writing obscene poetry and discharged from the Interior Department for his Leaves of Grass; eighty years ago, Mark Twain's Huckleberry Finn was termed unfit reading for "pure minded lads and lasses;" and Hawthorne's Scarlet Letter was condemned for "perpetrating bad morals" and described as a "brokerage of lust." About the same time, a standard work on etiquette recommended that books by male and female authors not be placed on library shelves together, except for married couples.

For almost a century after the Revolution, the United States managed to get along without any censorship laws, though that did not prevent the suppression of unpopular literature during the colonial and early Federal period. The full flower of literary repression bloomed with the Comstock era in 1873, under the inspiration of a young man by the name of Anthony Comstock, who had emerged from the backwoods of Connecticut to lead a crusade against what he considered indecent literature. Under a special act of the New York State Legislature, Comstock organized the New York Society for the Suppression of Vice. The law gave the Society a monopoly in the field and its agents the rights of search, seizure, and arrest--rights which had previously belonged exclusively to the police authorities.

The idea spread quickly, and within a few years there were founded the Western Society for the Suppression of Vice, with headquarters in Cincinnati, and the New England Watch and Ward Society in Boston. The history of the latter organization has been ably chronicled by the author of the present work, Ralph E. McCoy, in his Banned in Boston.

Also in 1873, the moral forces obtained the passage of a federal statute entitled the "Comstock Law," providing penalties for the mailing of allegedly obscene publications. Comstock became a special post-office agent and instituted a series of famous prosecutions. For years the battle raged between what George Bernard Shaw called "Comstockery" and its opponents, as Comstock and his Society banned or attempted to ban innumerable works of art, science, literature, and drama. In its first seventy-three years of existence, Society confiscated some 397,000 books and brought about the arrest of 5,567 defendants.

Then the tide began to turn. Censorship was discredited by ridicule, by the growth of liberal thought, and changing literary tastes. The transition from reticence to realism in our literature came slowly, but was speeded up considerably by World War I and such works as All Quiet on the Western Front and What Price Glory? Even so, few who were involved in the controversies over Dreiser's Sister Carrie and Cabell's Jurgen early in the present century would have imagined that in the nineteen sixties uninhibited books like Miller's Tropic of Cancer, Cleland's Fanny Hill, and Baldwin's Another Country would be circulated in the United States with minimal legal interference.

Legal precedents in the field of obscenity have a long history--for the most part a depressing one. Reviewing them over the past century and a half, one is left with an over-all impression of a labyrinth of judicial confusion, quibbling, hairsplitting, widely contradictory views, struggles with definitions, and general futility. The over-all murkiness is dispelled only occasionally by the enlightened, civilized views of such jurists as Augustus and Learned Hand, John M. Woolsey, William O. Douglas, Curtis Bok, and Jerome Frank.

One of the landmarks in the legal annals of censorship is the 1933 case of James Joyce's Ulysses, a storm center on both sides of the Atlantic for a number of years. Judge John M. Woolsey delivered the opinion of the federal court. Such a book, he stated, "must be tested by the Court's opinion as to its effect on a person with average sex instincts . . . who plays, in this branch of legal inquiry, the same role of hypothetical reagent as does the 'reasonable man' in the law of torts . . . It is only that the law is concerned."

The same point was underlined by Walter Gellhorn, lawyer and political scientist, and a leading writer on intellectual freedom. "The stable and well adjusted members of the community," he said, "must make many sacrifices because there are unstable and disturbed members as well. But freedom of communication and freedom to read ought not to be among the sacrifices when the gain is so dubious and the deprivation so plain."

Another famous case is dated 1948. The Philadelphia police had raided fifty-four bookstores and seized without warrants about 2,000 allegedly obscene books, including works by William Faulkner, Erskine Caldwell, and James T. Farrell. In his opinion, the presiding judge, Curtis Bok, stated in part: "It will be asked whether one would care to have one's young daughter read these books. I suppose that by the time she is old enough to wish to read them she will have learned the biologic facts of life and the words that go with them.... Our daughters must live in the world and decide what sort of women they are to be, and we should be willing to prefer their deliberate and informed choice of decency rather than an innocence that continues to spring from ignorance."

Judge Bok's conclusion is most pertinent. Would-be censors almost invariably rest their cases on the protection of children and young people. The testimony of medical, psychiatric, and sociological authorities rebuts their contentions. Two research criminologists, Eleanor and Sheldon Glueck, intensively examined a thousand delinquent boys from the Boston area. The most significant factors contributing to delinquency, they found, were culture conflict, unwholesome family environment, educational deficiencies, socially undesirable use of leisure time (for example, gambling, drinking, drug addiction, and sex misbehavior), and psychological defects. There was no evidence that erotic or other types of reading matter were contributing elements in delinquency. In the same vein, George W. Smyth, one of the nation's outstanding children's court judges, listed for a New York state legislative commission 878 factors that had troubled children brought before him. Reading was not on the list, but difficulty in reading was. This point has been confirmed by other workers in the field of antisocial juvenile behavior. Far from discovering delinquency grows out of reading, the clinicians report that it is more likely to grow out of inability to read. It is the consensus, in short, that delinquent children read much less than do the law-abiding.

But granting that it is undesirable to expose immature minds to hard-core pornography and obscenity, normal adult readers hardly require such tender coddling. The definitive word on the subject was stated by a U.S. Supreme Court decision in 1957. Invalidating a Michigan statute designed mainly to protect young people, the court ruled: "The State of Michigan insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to protect the general welfare. Surely this is to burn the house to roast the pig. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children."

In the same year, an eminent English judge, Justice Stable, was asking a jury: "Are we to take our literary standards as being the level of something that is suitable for a fourteen-year-old girl? Or do we go even further back than that, and are we to be reduced to the sort of books that one reads as a child in the nursery? The answer to that is: of course not. A mass of literature, great literature, from many angles is wholly unsuitable for reading by adolescents, but that does not mean that the publisher is guilty of a criminal offense for making those works available to the general public."

The U.S. Supreme Court continues to have able and eloquent champions of the liberal point of view. Justice Douglas, for example, maintains that "if a board of censors can tell the American people what it is in their best interests to see or to read or to hear, then thought is regimented, authority substituted for liberty, and the great purpose of the First Amendment to keep uncontrolled the freedom of expression is defeated." His colleague Justice Harlan concurs: "The federal government," he declares, "has no business, whether under the postal or commerce power, to bar the sale of books because they might lead to any kind of 'thoughts."'

Private pressure groups probably are more numerous, more vocal, and more active in the censorship field than in any other area. Innumerable veterans organizations, religious bodies, White Citizens Councils, superpatriotic societies, Congressional committees and similar groups appear to be working incessantly to place restrictions on what the American people may be allowed to read, see, or hear. They are voices calling for conformity, for unanimity of opinion, for eliminating all ideas with which they happen to disagree. Operating extralegally, such groups use, as their chief method, pressure on news dealers, drugstores, and booksellers, to force them to remove from their stocks every item on blacklists prepared by headquarters organizations. The books so listed have not been banned from the mails, and in an overwhelming majority of cases no legal charges have ever been brought against them.

The private pressure groups, following vigilante methods, deliberately ignore the fact that there are established legal channels for proceeding against books that are thought to be improper. The statute books contain adequate federal, state, and municipal laws to deal with real pornography. Furthermore, once started on their crusades for reform the "do-gooders" are constantly seeking new worlds to conquer. From cheap magazines and lurid-covered paperback books, they proceed to books of genuine literary merit, to serious motion pictures, and to the stage, radio, and television, determined, as Judge Bok phrased it, "to give others the courage of their convictions."

A well-known educator, Willard E. Goslin, has made fitting commentary on the activities of private pressure groups.

"No particular special interest group makes up the people. The people are not the Chamber of Commerce, or the labor unions, or the league for constitutional governments, or the Methodists, or the Parent Teacher Association, or the Catholics, or the Liberty Belles, or the American Legion, or the Protestants, or the Sons of the Golden West, or the Jews, or the American Association of University Women, or the Presbyterians, or the Rotarians, or the farmers, or the college graduates, or the whites, or the poor, or the Negroes, or the teachers, or the bankers, or the Democrats, or the commentators, or any other segmented or special interest group in America. The people, as we use the term, are that broad base of citizens representative of the diversity and strength of this nation."

Also full of common sense and broad toleration is a series of rules proposed by Father John Courtney Murray, for the guidance of minority groups, including the statement that "in a pluralist society no minority group has the right to impose its own religious or moral views on other groups, through the use of the methods of force, coercion, or violence."

Directly related to the activities of pressure groups is the problem of censorship in the schools. No institutions in our society are more vulnerable to pressures from every direction than are the public schools. It is perhaps surprising that the schools--close to the grass-roots level, their affairs always in the center of public attention, and dependent for support upon tax funds--retain any large degree of freedom. Economic, nationalistic, political, and religious groups, intent upon shaping the educational system to fit their particular ideologies, have sought to dictate to the schools what may or may not be taught. Also, legislatures in a number of states, sensitive to lobbies and other forms of organized pressure, have enacted statutes highly arbitrary and restrictive in nature to control textbook selection and curricula.

There would doubtless be universal agreement on the principle that textbooks used in U.S. schools should be American and should never be permitted to become vehicles for the propagation of obnoxious doctrines. The task of selection, however, is obviously not one to be delegated to self-appointed experts, with axes to grind. Instead, trust must be placed in the integrity, good faith, and plain common sense of the school boards and teachers of the country. As an investigating committee of the U.S. House of Representatives stated in its report: "If these educators are so utterly naive and untrained as to need help from a lobbying organization in selecting proper classroom materials, then our educational system has decayed beyond all help, a proposition we cannot accept."

A brief review of another major area for censorship activity--sedition and subversion--should be inserted here to round out a discussion of freedom of the mind. Throughout American history, so-called radical economic, political, and social ideas have been subject to attack. As long ago as 1689, William Bradford, Pennsylvania's first printer, was arrested and prosecuted for printing the colony's charter for distribution among the people. The following year, an attempt to start a newspaper in the British colonies was suppressed after the first issue. Another celebrated case involved the second newspaper established in New York and its publisher, John Peter Zenger. The paper, the New York Weekly Journal, was strongly antagonistic to the government, and in 1734 Zenger was arrested and charged with libel. His defense was in the hands of able lawyers, who succeeded in having the case tried before a jury instead of a judge. Zenger was acquitted, thereby establishing the basis for a free press in New York.

Potentially, one of the most menacing attacks on freedom of political thought and expression was the infamous Alien and Sedition Acts, forced through Congress in 1798 by the Federalists, who were fearful of the threat of foreign ideas and of their subversive tendencies. The statutes made it a criminal offense for "brawlers against government" to voice opinions considered dangerous or revolutionary. Thomas Jefferson's unyielding opposition to the repressive legislation was overwhelmingly endorsed by the electorate, who sent Jefferson to the White House and the Federalists into political oblivion.

Postwar states-of-mind and political pressures were responsible for numerous unsavory episodes following after World War I and II. A notorious example was the so-called Palmer raids on liberal and radical political groups considered subversive by A. Mitchell Palmer, U.S. Attorney General in Wilson's cabinet.

Most disruptive to national unity of any such events in American history were the activities of Senator Joseph R. McCarthy in the early nineteen-fifties. In a long-drawn-out series of sensational statements and committee hearings, McCarthy claimed that the federal government was thoroughly infiltrated by Communist agents. One of his prime targets was the U.S. information libraries abroad. Here was an excellent system of 194 centers in sixty-one countries, standing high in prestige and influence, among the most effective ambassadors any country could have, with 30,000,000 visitors passing through their doors each year. Within a few months, violent attacks by McCarthy and investigations by his agents had demoralized the library staffs, seriously damaged the libraries' reputation for objectivity, reduced congressional appropriations, and spread the impression around the world that freedom of speech and of the press no longer existed in the United States. Fortunately for the nation, the Senate condemned McCarthy in 1954 for abusing other senators and his political influence declined thereafter. It is doubtful, however, whether even yet the information libraries have fully recovered from the scourge of "McCarthyism."

Such phenomena as McCarthyism, the Subversive Activities Control Act, passed over President Truman's veto in 1950, and the pressures in recent years for conformity and for restricting civil liberties have doubtless resulted from the sense of insecurity which the American people have felt since the end of the Second World War. As country after country was overrun by communism, the tempo of the Cold War stepped up, and the world subjected to a relentless barrage of Communist propaganda, Americans naturally reacted with strong counter-measures. Investigating committees of Congress and state legislatures invaded college and university campuses and examined teachers for their patriotism. A rash of loyalty oaths was devised for university professors, public school teachers, government workers, and others. Blacklists were drawn up of teachers, journalists, actors, and many others accused of being Communists, or of having joined organizations into which Communists had infiltrated, or who may simply have refused to testify as to their political beliefs. For such reasons, voices of dissent were stilled, the unorthodox was equated with treason, the free exchange of ideas diminished, and the nation became increasingly wedded to the status quo.

The extent of publishing coming within the scope of the present work on Freedom of the Press is astonishing. It is a tribute to the publishers' recognition of the fundamental bearing of these themes on the great American heritage. Likewise, it is gratifying to find that so many first-rate writers are preoccupied with essential rights and freedoms, especially when such concepts are under attack and misunderstood.

The availability of reading materials of all kinds to Americans and to the rest of the world is greater than ever before in history. In the United States alone, 30,050 book titles in a total considerably in excess of one billion copies were issued and sold in 1966. Four billion copies of magazines, exclusive of comic books, are sold annually, and about sixty million copies of newspapers appear every day. A preponderance of this vast quantity of printed matter is distributed without incident or interference. Most Americans believe that every adult should have freedom of choice to read whatever he wants to read whenever he wants to read, except for treason, fraud, and pornography. Viewed objectively, we remain a free people in the field of reading, but it is a freedom that cannot be taken for granted, casually and indifferently. Instead, its protection requires "eternal vigilance."

No one of our freedoms is an island, alone, but is interdependent on others. As aptly phrased by J. R. Wiggins, editor of the Washington Post,

" A complex of many rights must co-exist unimpaired if the printed word is to be the effective agent of enlightenment. Men must have the right to discover the truth. They must have the right to print it without the prior restraint or pre-censorship of government. They must have access to printed materials. They must be able to print without fear of cruel or unusual punishment for publication alleged to be wrongful. They must have the right to put printed material into the hands of readers without obstruction by government, under cover of law, or obstruction by citizens acting in defiance of the law. Wherever these rights are threatened, the power of the printed word is incapable of performing its mission to mankind."

Taking the long view, the condemned books of one age are often the classics of later eras, because society's mores are constantly changing. In few instances since printing was invented has censorship resulted in the permanent loss or suppression of a literary work. Almost invariably copies survive and are subsequently revived under more hospitable conditions. To paraphrase Shakespeare's Mark Antony, the good that censors attempt to destroy lives after them; the evil is oft interred with their bones.

Freedom of the Press is destined to provide further strength and support for the great human rights of free press, free speech, and free expression.

Go back to Freedom of the Press