NOTICE: The Library is continuing to work on the transition to a new and improved library management system. As the transition continues some functions and services will continue to operate at a limited capacity. Users can still check out and return items and search the catalog. Users will not be able to log in to their library accounts, request items online, or use self check-out machines. If you have questions please email email@example.com or call (202) 687-7607. Thank you for your continued patience during this transition.
Should There Be a Law?
The Question of Censorship
IN FOREGOING CHAPTERS I have had occasion to emphasize the providential good fortune that befell the American Republic in that its constitutional structure was defined and its major institutions established within the context of the liberal tradition of politics. Within this wider civilizational current of ideas—Greek, Roman, Germanic, and Christian—the tradition of law has held a place of primacy. It is not too much to say that there has been a virtue in the Western tradition of law which warrants us in calling it redemptive, at least in a terrestrial sense. Western man has sought in the idea of law a manifold redemption—from the arbitrary. despotisms of uncontrolled power; from the threat or fact of injustice to his person and to his property; from dispossession of his human and civil rights; from the degradation that ensues upon social inequalities destructive of his personal significance and worth; from the oppressive evils of an inequitable distribution of wealth; from the multiple rapacities that seem to lurk in the human enterprises of commerce and trade; from the disruption of life by the irrational forces of passion, caprice, and chance that militate against the "life of expectability," to use Sir Ernest Barker's phrase for the high human good that is guaranteed by the rule of law.
In America the force of law has been used for all these worthy pur-
poses. They are visibly the purposes of justice in society. On the whole, the record in this area of justice reveals both wisdom and effectiveness in the use of civilization's most indispensable instrument. There are, however, other pages in the record. The force of law has also been used in other areas of moral concern; and in them the results, when not disastrous, have been dubious. There seems to be sufficient reason for thinking that the American mind has never been clear about the relation between morals and law. These two orders of reality are frequently confused, in either one of two ways.
First, there is a failure to understand the true meaning of the medieval adage: "Whatever is right ought to be law." The medieval man was not thinking of coercive statutes, backed by the state and its police, that would compel the people to do whatever is right. He was merely saying that whatever is right ought to be a matter of custom; that is, the moral order ought to be reflected in the habitual order of everyday life and action. He could also, as he did, turn the adage around and say: "Whatever is law (custom) ought to be right." That is, the sanction of the mores, as we call them, is not in the sheer fact that they prevail, but in their rightness. In both cases the medieval man was expressing, quite exactly, a right concept of the distinction and relation that obtains between the order of moral law and the order of human law or custom. In American history, however, a perverted sense of the adage has been frequent. It chiefly appears in the reformer's constant shout: "There ought to be a law!" That is, whenever it appears that some good thing needs doing, or some evil thing needs to be done away with, the immediate cry is for the arm of the law. And there has often been no pause to ask, whether this is the sort of good or evil that law can, or ought to, cope with. The reformer's adage has been: "Whatever is moral ought to be legislated." The simplism of the adage reveals the failure to grasp the difference in order between moral precepts and civil statutes.
This confusion breeds another. If what is moral ought by that fact to be legal, it follows that what is legal is by that fact also moral. In common speech, if it's not against the law, it's all right; stay within the law and you can't go wrong. Here the chaos is complete. Law is deprived of all true sanction from the order of morals. Morality is invoked to sanction any sort of law. And as a result both law and morality lose all meaning.
Perhaps the heyday of reformist confusion of law and morals was the notorious "Comstock Era," the 1870's. And doubtless the most famous relic of the era is the Connecticut birth-control statute. It was passed in 1879 under Protestant pressure. Originally Chapter 78, Public Acts of Connecticut (1879), it is now Section 8568 of the General Statutes, Revision of 1949. Since most people have never seen the text, it ought to be cited:
"Use of drugs or instruments to prevent conception. Any person who shall use any drug, medical article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned."
The text reveals a characteristic Comstockian-Protestant ignorance of the rules of traditional jurisprudence. In general, the "free churches," so called, have never given attention to this subtle discipline, at once a science and an art, that mediates between the imperatives of the moral order and the commands or prohibitions of civil law. In fact, so far from understanding jurisprudence, these sects have never really understood law but only power, whether they wield the latter in the form of majority rule or of minority protest. In any case, the Connecticut statute confuses the moral and legal, in that it transposes without further ado a private sin into a public crime. The criminal act here is the private use of contraceptives. The real area where the coercions of law might, and ought to, be applied, at least to control an evil—namely, the contraceptive industry—is quite overlooked. As it stands, the
statue is, of course, unenforceable without police invasion of the bedroom, and is therefore indefensible as a piece of legal draughtmanship. (The two decisions handed down by the Connecticut Supreme Court of Errors were in actions brought, not under the statute itself but under the general accessory statute, Section 8875, Revision of 1949.)
But what matters here is the mentality exhibited, and the menace in it. Protestant moral theory, as I shall later suggest, seems never to have been able to grasp the distinction between private and public morality. But unless this distinction, like that between morality and law, is grasped, the result is a fiasco of all morality. From the foolish position that all sins ought to be made crimes, it is only a step to the knavish position that, since certain acts (like the private use of contraceptives) are obviously not crimes, they are not even sins. Upon a foolish disregard of the distinction between private and public morality there ensues a knavish denial that there is any such thing as public morality.
From this point of view—the relation between law and morality—it might be interesting to explore the issue of censorship. The issue itself is not of major importance in American society. What is important is that so much bad argument gets into the discussion of it. It presents itself therefore as an issue in right thinking. This is the sort of issue with which this book is concerned.
In the difficult matter of censorship the casuistry could be endless. I shall therefore simply attempt to define certain central issues and to state some of the principles that bear upon their solution. We shall not be concerned with the problem of censorship in the area of news or opinion, or of public morality in general, but only as it arises in the fields of literature and the arts. Here the perennial issue of obscenity has recently come to the fore.
The discipline of the Catholic Church in this matter is stated in canon 1399 of the Code of Canon Law. Among the eleven categories of books whose reading is ipso iure prohibited to Catholics
the ninth is this: "Books which have for their principal purpose the description, narration, or teaching of matter lascivious or obscene." However, this canonical discipline is outside our present subject, which deals with the issue of censorship as it arises in the civil order.
An argument is sometimes set afoot about whether "the state," abstractly conceived, has or has not some right of censorship over the media of communications. And there is the complementary argument whether the individual writer or artist has or has not a right to absolute freedom of expression. These arguments I leave aside. We can start from a fact of political history, that every government has always claimed what is called police power, as an attribute of government.
This power in itself is simply the principle of self-preservation and self-protection transferred to the body politic. It extends to the requirements of public morals, public health, public safety, public order, and the general comfort of society. The only question is, how far and in what circumstances does it extend to all these social values?
In virtue of the police power, society, acting through the agency of government, is entitled to impose restraints on property rights and on personal freedoms. The question is, what manner of restraints, under what conditions, is government thus empowered to impose, in restriction of rights and in restraint of freedom? These are the concrete questions that are relevant to censorship, which is, I take it, an exercise of the police power. It might, if you wish, be an exercise of what is called patria potestas, the emergency power which government is entitled to use, on occasion, to protect children and those who are ad instar puerorum, legally to be reckoned as children by reason of their helplessness. But the same concrete questions return: when and for what reasons and under what limitations is government empowered thus to act in loco parentis?
In addition to the problem of governmental or legal censorship
there is the problem of censorship (at least in some wide sense of the word) as exercised by non-governmental bodies—by civic committees or voluntary associations of one sort or another. We shall also have to consider this aspect of the problem.
THE CENTRAL ISSUE
The issue that is central in the whole problem is the issue of social freedom. More exactly, it is the issue of striking a right balance between freedom and restraint in society. This is the most difficult problem of social science, to such an extent that all other difficulties are reducible to this one. No complete discussion is possible here; I shall simply make certain assertions, general in themselves, but relevant to our special problem.
First, in society constraint must be for the sake of freedom. It seems a paradox to assert that the imposition of a constraint must be justified by an increase in freedom, since every constraint is a decrease of freedom. What I mean, however, is that the constraint must create a freedom in another respect. Traffic regulations, for instance, are a constraint on freedom of movement on the streets; but they are justified because they create a freedom to move—at least, nowadays, in some minimal sense! Tax laws are a constraint on your freedom to do what you want with your money; but they create other freedoms—to live in security behind a national defense establishment, for instance. The whole texture of civilization is a web of restraints, which deliver man from a host of slaveries—to darkness, cold, and hunger; to ignorance and illness and wearisome labors. Delivered from these base slaveries man is free to be a man, to live the inner life of reason and love, the classic life of wisdom, the Christian life of faith.
The problem of constraint for the sake of freedom is difficult enough when it is only a question of organizing the material conditions of life. But it becomes even more inextricable when it is a
question of organizing communications within society; for in this field religious and moral, intellectual and emotional values come into play. It is easy enough to see that the "press" (understood to mean all the media of communication) can be the vehicle both of corruptive and of beneficial influences. It is easy enough to say that corruptive influences ought to be put under reasonable restraints. And it is easy enough to define what you mean by a corruptive influence; it is that which destroys or diminishes the rational freedom of man, either by damaging his power of personal reflection or by exciting his passions to the point where they interfere with his rational control of his thoughts and action. On these grounds you can certainly make a case against sexual propaganda of certain kinds as corruptive of human freedom. The influence of inordinate and unregulated sexual passion on the life of reason in man is a commonplace of human and historical experience. The susceptibility of youth to dominance by carnal desires, to the detriment of rational freedom, is particularly well documented—and hardly in need of documentation.
However, when you have made your case against these influences as socially corruptive, you have only reached the threshold of the problem of social freedom. Many questions remain. For instance, when and under what circumstances do these influences become so corruptive that they require animadvertence by organized society itself? (It is presumed that the first solicitations of corruptive influences are resisted by the special resources of the family and the Church.) Again, what agencies are to be enlisted against these influences—the public agencies of government and law, or the private agencies known as voluntary associations? Either or both? And to what extent each? Above all, what is the norm whose requirements are to be enforced, in one way or another, against influences that are corruptive? It is, of course, the norm of public order. But what requirements of public order can be made valid against the claims of freedom?
Even supposing these questions to have been satisfactorily answered, a further complicating consideration remains. The fact is that the imposition of constraints, the limitation of freedom, has consequences. They are numerous; but two require special notice.
First, if you impose a constraint on freedom in one domain, in order to increase freedom in another, you may take the risk of damaging freedom in a third domain, with consequences more dangerous to the community. Social freedom is a complex, whose constituent elements are closely interlocked. You may, for instance, wish to "clean up" political campaigns by limiting the freedom of the contestants to attack each other's personal integrity; but the means you take to this end may damage the freedom of the electoral process itself. Every constraint has multiple effects; it may impose restraints on a freedom which you would wish to see untouched.
There is, secondly, a consequent consideration. Because social freedoms interlock so tightly, it is not possible to know antecedently what the multiple effects of a regulation will be. At best, the effect you want can only be foreseen with probability, not certainty. And unforeseen effects may follow, with the result that a regulation, in itself sensible, may in the end do more harm than good.
For this reason, the social reformer whose only strength is a sense of logic may well be a menace. For instance, if drunkenness and alcoholism are social vices whose effect is to diminish and impair the free will of men (as indeed they are), the logical thing is to ban alcohol. Here in America we learned by experience the disastrous effects of that type of mad logic. In contrast, the illogicality of the liquor law in Belgium commends itself. The retail sale of liquor in public bars is forbidden, but you can get liquor if you go to a store and buy two quarts at once. When you unravel its seeming lack of logic, you find that the Belgian liquor law protects the citizen against his own reckless impulses, but permits him the freedom to act deliberately. This, of course, is his essential human freedom.
I should call attention here to the somewhat unique difficulties
presented by the problem of the public enforcement of standards of sexual morality. Jacques Leclercq, of the Catholic University of Louvain, who is no slight authority, concludes a brief advertence to this subject with this remark: "In short, it may be said that no government has ever succeeded in finding a balanced policy of combating unhealthy sexual propaganda without injuring legitimate freedom or provoking other equally grave or worse disorders."
Everybody agrees that debauchery of the sexual faculty is morally wrong, and that incitement to such debauchery should be legally forbidden. On the other hand, in the case of incitement as open as houses of debauchery, a view that goes back to St. Augustine's treatise, De ordine, warns against the dangers of attempting a total coercive repression of this particular incitement.
The strictness of traditional Catholic doctrine in regard to sexual lust appalls the libertarian; the laxness of the many Catholic governments in the same regard equally appalls the Puritan. In 1517 the number of prostitutes in the city of Rome considerably surpassed the number of married women. And in 1592, under a Pope of formidable strictness, Sixtus V, there were more than 9,000 prostitutes amid a population of 70,000. This was in the capital of the papal states. The figures are not indeed edifying; but perhaps they are interesting, not least when one considers that during the same era the newly constituted Index of Forbidden Books was being used with extreme severity by successive Pontiffs (Paul IV, Pius IV, Pius V) against heretical propaganda. To this day the Italian who is merely amused by the obscene pasquinata is deeply offended by the earnest heresies of a Baptist minister from Texas.
To the proper Bostonian all this is profoundly shocking. Just as to the Continental European, especially if he is a Latin, the spectacle of the U.S.A. is infinitely puzzling. A man is free to call error truth, and truth error, if he likes; but he is not free to use the notorious four-letter word which, in direct French monosyllabic translation, has achieved literary dignity in Larousse as le mot de Cambronne.
Again, the Supreme Court declares that the category of the sacrilegious is altogether indefinable, while the Post Office rules that Aristophanes' Lysistrata is an obscene book. This is indeed puzzling.
Considerations such as these would seem to indicate that the problem of social freedom is insoluble, if by solution is meant a simple formula that is applicable to all cases and similar for all countries. However, a community can do one important thing; it can decide on the general orientation it wishes to give to its particular solution. We have done this in the United States. We have constitutionally decided that the presumption is in favor of freedom, and that the advocate of constraint must make a convincing argument for its necessity or utility in the particular case.
I would only add that the presumption in favor of freedom does not rest on doctrinaire grounds. Its basis was not the philosophic rationalism that called itself Enlightenment, but only a political pragmatism more enlightened than the Enlightenment ever was, because it looked to the light of experience to illuminate the prudential norms necessary to guide it in handling a concrete social reality that is vastly complicated. In this light the option was made for the civil freedom of the citizen under a government whose powers are limited, and under a rule of the law whose reach is likewise limited, chiefly by the axiom that the constraints of law must serve the cause of essential social freedom.
In our case, the consequence of this fundamental option, which gives a basic orientation to our constitutional law, is that freedom of expression is the rule, and censorship the exception. A more particular further consequence is the ban laid by the First Amendment (exceptional cases apart) on all prior restraint of communications, at the same time that the government reserves the right to punish, subsequently, communications that offend against law. The freedom toward which the American people are fundamentally orientated is a freedom under God, a freedom that knows itself to be bound by the imperatives of the moral law. Antecedently it is
presumed that a man will make morally and socially responsible use of his freedom of expression; hence there is to be no prior restraint on it. However, if his use of freedom is irresponsible, he is summoned after the fact to responsibility before the judgment of the law. There are indeed other reasons why prior restraint on communications is outlawed; but none are more fundamental than this.
After this brief discussion of the central issue involved in censorship I come to my proposition. It may be briefly stated thus: censorship in the civil order ought to be a juridical process. In using the word "juridical" I mean that the premises and objectives of the process should be defined in accord with the norms of good jurisprudence; that the forms of procedure should be properly judicial; and that the structure and workings of the process should be sustained by the consent of the community. I should maintain that this concept of a juridical process should be verified, mutatis mutandis, in every form of censorship, whether governmental or non-governmental.
GOVERNMENTAL OR LEGAL CENSORSHIP
Censorship exercised by public authority is obliged to be literally juridical, in the sense described. As a legal process this censorship is controlled by the canons of necessity or utility for the common good. That some degree of punitive censorship is necessary is sufficiently evident. Pornography, for instance, the kind of obscenity that is a perverse and vicious profanation of the sacredness of sex, seems to hold a permanent attraction for a portion of humanity. That it is a corruptive social influence is not to be denied; consequently, few would deny that its repression is necessary. Beyond this, how much more censorship is useful, and how useful is it? That seems to be the central question.
A preliminary answer is furnished by the principle, basic to jurisprudence, that morals and law are differentiated in character, and not coextensive in their functions. It is not the function of the legislator
to forbid everything that the moral law forbids, or to enjoin everything that the moral law enjoins. The moral law governs the entire order of human conduct, personal and social; it extends even to motivations and interior acts. Law, on the other hand, looks only to the public order of human society; it touches only external acts, and regards only values that are formally social. For this reason the scope of law is limited. Moreover, though law is indeed a moral force, directive of human society to the common good, it relies ultimately for its observance on coercion. And men can be coerced only into a minimal amount of moral action. Again from this point of view the scope of law is limited.
Therefore the moral aspirations of law are minimal. Law seeks to establish and maintain only that minimum of actualized morality that is necessary for the healthy functioning of the social order. It does not look to what is morally desirable, or attempt to remove every moral taint from the atmosphere of society. It enforces only what is minimally acceptable, and in this sense socially necessary. Beyond this, society must look to other institutions for the elevation and maintenance of its moral standards—that is, to the church, the home, the school, and the whole network of voluntary associations that concern themselves with public morality in one or other aspect.
Law and morality are indeed related, even though differentiated. That is, the premises of law are ultimately found in the moral law. And human legislation does look to the moralization of society. But, mindful of its own nature and mode of action, it must not moralize excessively; otherwise it tends to defeat even its own more modest aims, by bringing itself into contempt.
Therefore the law, mindful of its nature, is required to be tolerant of many evils that morality condemns. A moral condemnation regards only the evil itself, in itself. A legal ban on an evil must consider what St. Thomas calls its own "possibility." That is, will the ban be obeyed, at least by the generality? Is it enforceable against the disobedient? Is it prudent to undertake the enforcement of this
or that ban, in view of the possibility of harmful effects in other areas of social life? Is the instrumentality of coercive law a good means for the eradication of this or that social vice? And, since a means is not a good means if it fails to work in most cases, what are the lessons of experience in the matter? What is the prudent view of results—the long view or the short view? These are the questions that jurisprudence must answer, in order that legislation may be drawn with requisite craftsmanship.
It is, in fact, the differentiated character of law and morals that justifies the lawyer or judge when he insists that punitive censorship statutes should be clearly drawn, with the margin of uncertainty as narrow as possible.
The net of all this is that no society should expect very much in the way of moral uplift from its censorship statutes. Indeed the whole criminal code is only a minimal moral force. Particularly in the field of sexual morality the expectations are small; as I have suggested, they are smaller here than anywhere else. It is a sort of paradox, though an understandable one, that the greater the social evil, the less effective against it is the instrument of coercive law. Philip Wylie may have been right in saying that American society "is technically insane in the matter of sex." If so, it cannot be coerced into sanity by the force of law. In proportion as literary obscenity is a major social evil, the power of the police against it is severely limited.
This brings up the matter of consent. Law is indeed a coercive force; it compels obedience by the fear of penalty. However, a human society is inhumanly ruled when it is ruled only, or mostly, by fear. Good laws are obeyed by the generality because they are good laws; they merit and receive the consent of the community, as valid legal expressions of the community's own convictions as to what is just or unjust, good or evil. In the absence of this consent law either withers away or becomes tyrannical.
The problem of popular consent to the order of law and to its
manifold coercions becomes critical in a pluralist society, such as ours. Basic religious divisions lead to conflict of moral views; certain asserted "rights" clash with other "rights" no less strongly asserted. And the divergences are often irreducible. Nevertheless, despite all the pluralism, some manner of consensus must support the order of law to which the whole community and all its groups are commonly subject. This consensus must include, in addition to other agreements, an agreement on certain rules which regulate the relations of the divergent groups among one another, and their common relation to the order of law. In what concerns our present subject of censorship, I suggest that there are four such rules. Before stating them I would note that in the United States at present all the religious groups are—from the sociological, even if not from the statistical, point of view—minority groups.
First, within the larger pluralist society each minority group has the right to censor for its own members, if it so chooses, the content of the various media of communication, and to protect them, by means of its own choosing, from materials considered harmful according to its own standards.
Second, in a pluralist society no minority group has the right to and that government should impose a general censorship, affecting all the citizenry, upon any medium of communication, with a view to punishing the communication of materials that are judged to be harmful according to the special standards held within one group.
Third, any minority group has the right to work toward the elevation of standards of public morality in the pluralist society, through the use of the methods of persuasion and pacific argument.
Fourth, 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.
I cannot pause here to demonstrate the reasonableness and justice of these four rules. I would only note that they are not put forth as
rules that were made in heaven, necessarily inherent in the constitution of an "ideal" society. On the contrary, they are to be considered as rules made on earth, by the practical reason of man, for application in the conditions—by no means "ideal"—of a religiously and morally divided society. Agreement on them would seem to be necessary in the common interests of social peace. Their supposition is the jurisprudential proposition that what is commonly imposed by law on all our citizens must be supported by general public opinion, by a reasonable consensus of the whole community. At the same time they suppose that within a pluralist society the minority groups have certain definite, if limited, rights to influence the standards and content of public morality. The statement of these rules leads to the next subject.
In the United States there are a multitude of voluntary agencies which exercise some measure of surveillance, judgment, and even control of various media of communication. For the most part they shy away from the idea of being called "censoring" agencies. We need not quibble over the word; the frequent fact is that many of them achieve the results of censorship, even when they refuse the name. With regard to these agencies I should maintain the general proposition stated above—that their censoring should also be a juridical process, if not literally, certainly in spirit.
The juridical premise of their action is not in doubt. In the United States it is generally acknowledged that the voluntary association is entitled to concern itself actively with matters that relate to the public welfare. It is invidious to stigmatize all such associations as "pressure-groups," pursuing "private interests." The fact is that, in their own way, they can perform a public function.
The more difficult question concerns the methods used by these associations or committees. There can be no slightest quarrel when
they use simply the methods of persuasion; that is, when they appeal for voluntary cooperation on the grounds of a common moral and social responsibility. Thus, for instance, many associations interested in decent literature and movies (surely a public interest) seek the responsible cooperation of producers and theater-owners, and publishers and distributors, with a view at least to diminishing the volume of obscenity, or other objectionable features, in these media. Surely here all is entirely rightful and prudent.
Other methods—at the other end of the spectrum, so to speak—seem to have at least the appearance of coercion. As an example one might take the organized boycott, against a merchant, a theater, etc. It is a sort of "consumers' strike"; it is sometimes accompanied by picketing; it normally involves some form of economic sanctions invoked against the offending party. What is to be thought of such methods?
It will be agreed that the use of formal coercion in society is reserved to public authority and its agencies of law. Coercion of a more informal kind—through economic pressure, etc.—is also employed by various associations that do not hesitate to identify themselves as "power-groups." Such, for instance, is a trade union. It does indeed seem a bit incongruous that other types of voluntary association, concerned with values that are spiritual and moral, aesthetic and cultural, should pursue their ends by what appear to be the methods of power rather than of persuasion. On the other hand, it is not possible to prove the position, taken by some, that an action like the boycott of a moving-picture is somehow "unrightful," or "unconstitutional," or "undemocratic." No one can show that such an action lies beyond the limits of a primeval American right to protest and object. The action may indeed be strenuous; but the American right to protest and object is permitted to run to some pretty strenuous extremes.
This, said, against the doctrinaire, it remains true that methods of action which verge upon the coercive exhibit some incongruity when
used by citizen-groups in the interests of morality in literature or on the screen. Even if they raise no issue of abstract right, they do raise the concrete issue of prudence, which, equally with justice, is one of the cardinal virtues. The issue rises most sharply in the case of Catholic associations. The chief danger is lest the Church itself be identified in the public mind as a power-association. The identification is injurious; it turns unto a hatred of the faith. And it has the disastrous effect of obscuring from the public view the true visage of the Church as God's kingdom of truth and freedom, justice and love. Our purpose is to stand before the world as men and women of faith, and therefore of reason too, whose reliance is on the methods of reason and not of force. We would wish always to be men and women of courage, ready to face any issue; but also men and women of prudence, who understand the art of procedure, and understand too that we are morally bound, by the virtue of prudence, to a concrete rightness of method in the pursuit of moral aims.
It should be noted too that prudence is an intellectual virtue, a refinement of intelligence. It may therefore properly be asked, how intelligent is it to have recourse to methods that approach coercion in this delicate field of censorship? Few things are worse than to make oneself ridiculous. And when an effort to coerce is made at the dictates of stupidity, the result arouses ridicule as well as resentment.
This brings up the question, who is competent to censor, even in some extralegal fashion? To say that all censorship should be a juridical process is to say by implication that it ought to be intelligently done. This means close attention to the qualifications of the censor. Here the example of the Church is instructive. In his reform of the discipline of censorship Benedict XIV laid great stress on the rule that the censor is to possess professional competence in the particular field in which he is called upon to pass judgment. Censorship is no job for the amateur. Like stress is placed on the censor's obligation to perform his task impartially, in the fullness of the
judicial spirit that forbids the intrusion of any private likes or dislikes. In the process of censorship there is no room for the personal, the arbitrary, the passionate. The censor is not called upon for a display of moral indignation; he is asked only for a judgment, calm and cool, objective and unemotional. So too in the civil sphere, the less we have of moral indignation, and the more we have of professional competence and an unclouded faculty of judgment, the better it will be for the juridical nature of the censorship process.
In what concerns the problem of obscenity I would not discount the value of what is called the "common estimation" of men. People in general have a fairly clear notion of what obscenity is. And people in general can make, for themselves, a pretty good judgment on whether a particular work is obscene. Certainly the Code of Canon Law seems to suppose that the ordinary Catholic can make this concrete judgment for himself. I repeat, for himself. The question is, who can make it for others, i.e., as a censor?
Here a distinction is in order. Certainly the ordinary father and mother ought to be qualified to act as censors within the family and to decide what their children may or may not be prudently exposed to, in the way of reading, movies, etc. But I should not think that the ordinary father or mother, qua such, is qualified to act as censor within society at large, or to decide what literature and movies may be displayed before the general public. Society has an interest in the artist's freedom of expression which is not necessarily shared by the family. If adult standards of literature would be dangerous for children, a child's standard of literature is rather appalling to an adult. If therefore any censorship is to be administered in the interest of society, the professional competence of the literary critic must play a role in the process.
Here perhaps the characteristic Catholic care for the welfare of children (often coupled with the typically American cult of the child-centered home) ought to be aware of a danger. The contemporary argument about censorship is sometimes described as a
"battle between the literati and the philistines." The description is snobbish, if you will. But it would be lamentable if Catholics were to go over to the camp of the philistines. After all, we do stand, not only within the oldest religious tradition of the Western world, but also within its most venerable tradition of intellect, literature, and art. The tradition has produced great achievements in writing, painting, and the plastic arts. Not all of them are fit for children indeed not even the Bible in all its parts. But that is no justification for any form of philistinism.
In one further and final respect the process of extralegal censorship ought to be juridical, pursued in the spirit of law—that is, in its adoption of minimal aims. Fussiness is out of order. There ought to be a few, only a few, areas of concentration, in which a little bit (if not much) can be done. I suggest that the chief area is the "pornography of violence," as it has been called. Mischief enough is done by the obscenities that occur in the portrayal of illicit love (by literary hacks who never learned what the genuine artist knows instinctively—that, though art may "say all," there are certain things it is never allowed to say explicitly). But here sex is at least rescued from full profanation by its tenuous connection with love, as love is still resident in lust. However, when sex is associated with, and becomes symbolic of, the hatreds and hostilities, the angers and cruelties, that lie deep in men and women, the profanation of the most sacred thing in sex—its relation to love and to the hope of human life—is almost complete. It could move perhaps only one step deeper into the diabolical—in that association of sex and blasphemy that pervades the Black Mass.
The image of the truly evil thing in the obscenities of our day is seen on the typical cover of the "tough" kind of pocket-book—the seminude woman, with a smoking gun in her hand. The scene is one of impurity, but that is its lesser evil. The real evil is the violence in the impure scene. There is the perversion. If some restraint could be imposed upon this pornography of violence—so damning in its
revelation of a vice in our culture—it would indeed be a moral achievement.
It is a good thing to keep our problems in perspective. Our chief problem, of course, is not literary censorship, but literary creation. This is true in the Church. She has no trouble in finding censors; but she prays continually that God may give her men of learning who can write the works that need to be written. The American Catholic community particularly needs to attend seriously to this problem of literary creation. Leo XIII is indeed remembered for his revision of the Index of Forbidden Books. But he was not the first Pope to point to the dangers of reading bad books. It is his greater glory that he was the first Pope to say, in substance and effect, in a multitude of discourses, that today there is great danger in not reading good books.