Discussant: Molly Land: categorizing rationales states offer for censorship. Prior normative commitments, which often don’t leave us with much room to negotiate and push us to extremes. Five categories: designed to prevent individual harm; preventing tangible social harm (military secrets); inchoate harm to social fabric/deeply held values (hate speech/Holocaust denial); something larger than the state (blasphemy); widgets/economic values (copyright). How do we distinguish censorship of hate speech from censorship of political dissent? Bambauer’s past work: we should have a framework for evaluating censorship that focuses on process, not on the reasons for the censorship. At the very least we should hold states to the consequences of their own rationales, and if there’s contradiction then we have an additional tool to attack the state’s actions.
Her comments: additional rationales. Speech that is critical of the gov’t pure and simple; political organizing that might threaten the state; inappropriateness—gay rights/family planning. The categories chosen almost presuppose a well-intentioned state.
Possible responses: you are emphasizing proferred reasons rather than real reasons. State might be self-serving but offer more palatable rationale in public. Use that rationale instrumentally to hold the state to its own reasons? Another possible response: maybe these self-serving rationales fall into the harm to society/social fabric categories. But if so, the categories may be so broad as to deprive them of any power to hold the state to account. If your argument is that the state has to accurately report on the threat, or articulate what beliefs and values ought to be enduring, the categories may lack rationales for determining validity. What counts as a threat? Without that, there’s no traction for limiting outlier repressive regimes. Categories one and four do offer some constraints—articulate the harm and show that censorship addresses the harm. These harms are more definable.
Maybe we can’t assess the validity of the claims—do we have to be value-neutral? Uses Russia as an example, targeting political dissent with other rationales. Do we simply to defer to the state’s claim that these are valid rationales?
Domestically, most of our rules are one and four, and that does offer a helpful framework. Takes us to first principles: is this a harm we want to prevent and do these measures work. But it’s hard to figure out how to challenge claims by a state that censorship prevents the overthrow of the government.
Q: continuum? Profaning the sacred can work a harm on every member of the affected group.
A: could do both—saps the strength of the thing that links them together.
Jack Balkin: You could map censorship for sociological reasons; because you want normative judgments; because you want to know the most effective techniques. What is the purpose of the typology?
A: starts with the first. Censorship is widespread.
Balkin: if sociological, ask what work is being done for society by the particular techniques of censorship? What values is society attempting to protect or defend? Is the state the central actor in censorship or one among many?
A: I think the project is looking at state action. Private censorship: don’t yet have a useful way to deal with that. Not sure that the First Amendment should apply to Google.
Balkin: Althusser talks about schools, the church, markets/capitalist system. Censorship as a practice does particular work—shoring up religious belief, protecting relations between the sexes, securing property, legitimating/justifying the use of power both public and private. In those categories the public/private line will sometimes be salient and sometimes not. When a Republican congressman insists on no sex education that can be understood as the state or as a group using the state for a particular purpose.
A: the state as one mechanism of effectuating particular goals. Are functions and values different here? Copyright is instrumental—we want more stuff—but that may not be a value, where natural rights claims do the work.
Balkin: control over culture—the work copyright does is to allow particular people to control what things mean in society and also to make money. Critiques of copyright often focus on control over cultural meaning more than money. Interesting connections between copyright and blasphemy: certain things shouldn’t be said so as not to undermine particular kinds of meanings (that’s TM dilution!). Even if the actor is the state, others’ goals are served.
Robert Post posits democracy, community and management as the key axes—we can imagine censorship that defends any of these. This is a sociological division of life into boxes.
We could understand Google as censoring for its own purposes, or as a pawn to serve the interests of various states. You might see both of these—Google wants a quiet moneymaking life and thus lets itself be used.
A: history of censorship is a larger project.
David Thaw: have to take the claim on its own terms, and also investigate what it is doing: empirically or analytically is there a mismatch between the claim and the solution.
A: it might be both. Censorship for copyright is both to get more movies and to control who gets to say what.
Robert Post: private power has to come into it. MPAA couldn’t get SOPA/PIPA, so it pressured ISPs into six strikes through private agreement. ICANN; other institutions coming in to take over the roles that state actors used to fill.
A: Agreed, but this is the difficulty of being an American lawyer. Free speech is directed at gov’t initially. Then we have to decide what restraints on private actors are appropriate.
Land: another thing to think about is that different perspectives will categorize harms different ways: European perspective is that hate speech is category one: it harms specific individuals.
Nonstate actors: this is the approach people have taken to nonstate actors—we want transparency and we want to hold them to the promises they make/claims about their goals they make. That seems like all we have with respect to private actors. Applying this to state actors seems like a new move; perhaps normative judgments can be made about state actors that we can’t make with private actors. Functional analysis may be all we can do for Google, but not all we can do for states.
Balkin: might be interested in technologies/techniques of what’s generally regarded as censorship (attempts to prevent people from expressing opinions or making claims in public sphere), or might expand concepts of censorship—subsidization, public education, scientific research.
Post: if you start with Foucault, information flows/censorship are everywhere.
Balkin: but that’s not where he’s starting. Paradigm: gov’t beats you up for your speech, and expands from there.
A: particularly interested to what happens to broadcast—interdiction because the gov’t stops you from broadcasting your message and substitutes a cartoon instead, even if it allows you to use a public square.
Post: what’s the state of nature? Can’t use unmediated communication as a baseline. You have to start with values if you go that way: the idea of censorship may look meaningless from that perspective where flows of information are always shaped.
Thaw: who I get to talk to because of where the roads go is affected by gov’t decisions. Shaping the flows of information: there is no such thing as unmediated communication. Definition of censorship: introducing another variable after whatever the starting point is. The paper could be about what happens after the starting point. Not sure whether that works, but could explore.
Post: but why privilege the starting point if it could be different? If Google could start in one configuration or another, why privilege the one it chose? (The discussion has in general been going back and forth between gov’t and private actors deciding to interrupt information flows that would otherwise occur, given the background conditions already in place.)
Thaw: not so much privileging but a way of deciding what to talk about.
Post: but we want to talk about some things separately in a way that’s normatively loaded, which “censorship” is.