Private “censorship”

Here’s a thought experiment about what some people call censorship.

Let’s imagine we all live in a community called Mayberry. This is a pre-internet time, and imagine too that very few of us have a TV or a radio. The main media outlet in our town is the Mayberry Gazette.

Some community leaders worry our town is getting a bit overweight. They want to pass a law that enacts a 10 cent tax on the sale of any ice cream cone in Mayberry. They plan to use the revenue to fund free community tai chi classes in the Mayberry Community Center each morning.

I draft an op-ed to argue against the proposed tax. I make economic arguments about how this will impact the ice-cream marketplace (“it’ll encourage bigger cones!”). I warn of the adverse effects on our beloved local ice-cream parlor. I also make moral appeals. I say that people should be free to choose their treats and decide which if any exercise they will pursue. And so on.

I submit that to the Mayberry Gazette, which refuses to publish it. I spot the editor coming out of Floyd’s Barbershop. I ask why the paper declined my op-ed. The editor tells me that the proposed tax is a great idea and so the paper has no room for my views.

I say to the editor, “Shouldn’t we have open discussion?”

“Of course,” the editor replies. “We should have open discussion of sensible views. But, Andrew, your views threaten to undermine public health and morals.”

I then appeal to fairness. “Your refusal to publish my views is not right. You have the only newspaper and the only printing press in our town! You’re making it nearly impossible to get my views to the community. You’re censoring me!”

The editor then says: “If you don’t like that, go get your own newspaper.”

There are several issues here. Bracket whether the proposed law has merit. If you think it does, substitute another one that does not. Consider instead three issues about what the newspaper may, should, or should not do. First, there is a conceptual issue about whether to call the newspaper’s conduct “censorship.” Second, there is the issue of whether the newspaper has a right to do (or not do) what they do. Third there is the question about whether the newspaper is doing the right thing.

I am uneasy calling it censorship when the Mayberry Gazette refuses to publish my op-ed. My unease revolves around using the same term for what private people do as compared to what people who wield political power do.

Suppose I say you may remain in my home only if you make no mention of a certain politician’s name. That does not seem to be censorship. I offer you terms of our association, which you are free to decline by not entering my home. If you come in my home and speak that person’s name anyway, I am within my rights to demand that you leave. If you complain of censorship, I might reply, “whatever you want to call it, if you don’t like it, go speak your views elsewhere.”

I take the notion of censorship to include some notion of impermissibility. Whether something is permissible turns significantly on whether one has a right to do it. As a private party, the newspaper can do what it wants with its resources, just as you may decide what speech is permissible in your home.

Suppose instead the Mayberry Police tells the Gazette that if it publishes my op-ed, they will shut down the newspaper. That would surely be censorship. What seems to make it censorship is the legal prohibition, supported by the force of the state, against the dissemination of certain ideas. (This formulation is incomplete, since some legal prohibitions on speech and writing seem justifiable but don’t easily seem to be censorship.)

I do not want to press too hard on the conceptual point. It might come down to a battle of intuitions. Many people think of censorship more capaciously than I do. (See Andrew Jason Cohen’s recent post.) Let us bracket the conceptual point and move forward. Consider what private parties do when they withhold their own property as vehicles for disseminating certain ideas. Call that “schmensorship.” When if ever may someone schmensor?

The US Supreme Court restricts some private parties’ rights to schmensor. In Pruneyard Shopping Center v. Robins (1980), the Court said the state of California may require owners of shopping malls to allow people to petition on their premises. The Court said a state may require this of malls provided it does not clash with other constitutional protections. Suppose there is a compelling argument that shows it is not a restriction (or not a worrisome restriction) on private parties’ rights of free speech, free association, and property, when the state forces them to open their property to views they reject. Maybe we can argue shopping malls are (well, perhaps they were) the modern “town square” to which everyone must have access. I doubt the public’s access to a shopping center implies the owner’s diminished private authority over what happens in and through the private resource.

Back to Mayberry. I’m the local llama farmer (a seldom-mentioned business in the episodes). I am too busy with my llamas to have the time, the resources, or the know-how to “go get my own newspaper.” Nothing beats the Gazette for publicly airing views. When the paper schmensors me, the economic barriers to getting my views out are formidable. I can still print up my ideas and spread my brilliant prose. Doing so might be hard. It might be expensive. It might be time-consuming. But I could do that without jeopardizing my freedom.

In contrast, when the Mayberry Police censors me by threatening to shut down newspapers or imprison people who speak my ideas, the barriers they put up against my views seem importantly different. I may not then “go get my own newspaper” to publish my views. The barriers on disseminating ideas under censorship seem different in kind, and not just degree, compared to those of schmensorship. The prohibitions track different moral stakes. Schmensors leave me free to speak my mind if I can find the resources. Censors deny me the freedom to speak my mind no matter what resources I have.

Here’s a wrinkle to my little thought experiment. For fans of the show: who was the editor of the Mayberry Gazette?

That was none other than Sheriff Andy Taylor, who was also the local justice of the peace. That… complicates things. Even then, his schmensorship regime is not necessarily a censorship one. Will Andy lock me up for handing out my essay to willing passersby on property where I have permission to stand? If not, then he’s merely a schmensor. When I’m merely schmensored, I still have a shot at speaking my mind.

(Thanks to Andrew Jason Cohen for feedback on an earlier draft, and also for neither schmensoring nor censoring me.)

One thought on “Private “censorship””

Comments are closed.