Dangerous Ideas. By Eric Berkowitz. Beacon Press; 320 pages; $29.95. The Westbourne Press; £20
THIS LIVELY and wide-ranging history of censorship opens with a wise reminder. “The compulsion to silence others”, writes Eric Berkowitz, an American lawyer and author, “is as old as the urge to speak.” As a firm believer in free speech, Mr Berkowitz views censorship through the ages as mostly futile, perverse or wrong. Yet he grasps that neither side in this ancient contest is pure or simple. Nor, in his engrossing account, do either free speech or its opponents ever win final victories.
Mr Berkowitz focuses chiefly on the United States and Britain, with glances at other European countries—such as 17th- and 18th-century France, famous for libelles, scurrilous and usually sexual attacks on royalty, clergy and other notables. He briefly widens the field at the end for a discouraging look at enemies of free speech in less liberal or less democratic places.
Silencers of speech operate directly and indirectly. The most obvious direct kind is state censorship. It may forbid speech unless cleared in advance (pre-censorship), punish it after the event (criminal libel) or burden publishers and media with undue regulations or taxes. Speech here includes not just voicing or disseminating words but proclaiming your faith as you wish, campaigning for your chosen causes and making art without interference.
Pre-censorship has often proved self-defeating. With the coming of print, books as a rule needed licence before publication. In Britain, where licensing was outsourced to the printers’ guild, prior control proved ineffective and corrupt, and was abandoned by the end of the 17th century. The papal Index of Forbidden Books (1559-1966), backed by the law in many Catholic countries, gave publicity to works that would otherwise have remained obscure. The harder Soviet censors worked, the stronger grew underground papers, political jokes and public disbelief.
Criminal libel, which replaced pre-censorship in common-law countries, might be seditious, obscene or blasphemous. That threefold division tracked the silencers’ chief preoccupations: political dissent, fascination with sex and disregard for religion. Prosecutions continued even late into the 20th century. Especially before juries, they could backfire, as Mr Berkowitz recounts with relish. In 1817 William Hone was charged in Britain with blasphemy for parodying church liturgy. In defence, Hone read out passages of his parodies that so reduced the courtroom to laughter that acquittal was assured. Obscenity trials have commonly stumbled on the prosecution’s dilemma as to whether to say the unsayable or primly allude to it.
Entertaining as they are, court pratfalls were the exception. Mr Berkowitz stresses that suppression had the upper hand until recently. Free speech’s most eloquent modern champion, John Stuart Mill, published “On Liberty” in 1859; but in Europe and America state censorship weakened only in the 1950s-60s. Then and at other times, the law responded to public opinion. That is the second, indirect means by which speech may be silenced—or freed. Pressure may come from the majority view or (as now) from the sensitivities of ethno-religious minorities.
In America, where the First Amendment bars the government from limiting speech save on exceptional grounds, courts have tended to strike down post-1945 laws controlling “hate speech”. In Europe, by contrast, such laws are common and accepted even by free-speech liberals. Thus American courts are often said to be more “absolutist” about free expression. Mr Berkowitz corrects that half-truth, noting that American courts have upheld speech bans on pacifists in wartime and communists during the cold war.
Another indirect control turns on opportunities to speak. Even if all should be free to do so, must everyone be given a platform, a newspaper, an audience? To approach the question differently, does the gatekeeping power of media and web giants distort public argument?
Governments have stepped in at times to make the giants share their megaphones and refrained from interfering at others. Recently American regulators and courts have favoured the giants. Requirements for fairness in political broadcasting were dropped in the 1980s. A law of 1996 deemed web providers not to be publishers, hence protected from civil suits over material posted. The Supreme Court ruled in 2010 that corporations enjoy free-speech protection, making limits on political spending, among other things, harder to enforce. Different social silencers, those now called no-platforming and “cancel culture”, make up in stridency what they lack in formal clout (though Mr Berkowitz thinks their significance is exaggerated).
Without always diving deep or giving clear answers, “Dangerous Ideas”shows that conflicts between free speech and censorship are rarely simple or settled for long. Above all, Mr Berkowitz grasps how quarrels over free speech are often, at bottom, fights for control of the argument. ■
This article appeared in the Books & arts section of the print edition under the headline “And be damned”