First Amendment News

Ian Rosenberg and Robert Corn-Revere

The mind of the reviewer and the eye of the author — Rosenberg reviews Corn-Revere, author replies — FAN 321

December 1, 2021

Below is a review by Ian Rosenberg — a media lawyer and the author of “The Fight for Free Speech: Ten Cases That Define Our First Amendment Freedoms” (NYU Press, 2021), and the graphic novel “Free Speech Handbook” (Macmillan, 2021) — of Robert Corn-Revere’s latest book “The Mind of the Censor and the Eye of the Beholder” (Cambridge University Press, 2021). Following Mr. Rosenberg’s review is a reply by Mr. Corn-Revere.


Prominent First Amendment litigator Robert Corn-Revere’s new book, “The Mind of the Censor and the Eye of the Beholder” brings to life fascinating stories of censorship throughout American history. Filled with impressive details and insightful analysis, this is an important new contribution to the chronicles of free expression. Unfortunately, however, the work is also hampered by Corn-Revere’s discursive style that is often repetitive and lacking in narrative direction.

Ian RosenbergIan Rosenberg

Corn-Revere writes that one of the goals of “The Mind of the Censor” is “to examine the role that censors have played in [free expression case law] development, and to suggest ways to recognize them when they are in our midst.” In that regard, he succeeds admirably. Corn-Revere paints sweeping pictures of American censors over time and draws clear parallels between such figures in the past and their more contemporary compatriots.

“The Mind of the Censor” begins with four chapters on the life and legacy of Anthony Comstock, whom Corn-Revere anoints as “the nation’s first professional anti-vice crusader.” Comstock’s vicious dedication to censorship and self-aggrandizement are presented compellingly by Corn-Revere, particularly when he describes the plight of those lives Comstock sought to destroy. However, with each additional chapter on this archetypal censor, taking up almost one-third of the entire text, the deep dive into Comstock hijacks the book, leaving us with something that is too short for a biography, and too long for a project directed at providing an overview of censorship in the United States.

The next section of “The Mind of the Censor” is the book’s strongest, as Corn-Revere recounts the censorship efforts against a variety of artistic mediums, from comic books in the 1940s and 1950s; to music lyrics in the 1980s; and on to radio and television indecency battles through the present day (including an astute section on the demise of the fairness doctrine). Corn-Revere’s chapter chronicling the outrageous efforts that “noted psychiatrist and liberal social activist, Dr. Frederic Wertham” pursued against the comics industry, leading to two separate Senate hearings, is a showstopper (an evocative tidbit from Corn-Revere’s research of this period comes when he refers to a critic from 1947 who called comic books “‘intellectual marijuana’ and harbingers of cultural doom.”). These tales provide Corn-Revere an opportunity to showcase his gift for summarizing complex legal doctrine with an enlightening phrase or two, such as when he describes the “traffic control” justification for FCC regulation as an “origin story for broadcast regulation [that] has been used for nearly a hundred years to justify a different level of First Amendment protection for broadcast speech, yet it has been dismissed by leading economists and broadcast historians as pure folklore.” In each one of these stories, Corn-Revere maintains an engrossing mixture of scene-setting, historical documentation, and legal commentary.

The Mind of the Censor and the Eye of the Beholder

At the same time, Corn-Revere makes a number of jarring editorial remarks that deviate from his more successfully straightforward storytelling passages. He asserts, without citation, that the 2004 Super Bowl halftime show scandal was “secretly contrived by [Janet] Jackson and her choreographer,” but gives Justin Timberlake a forgiving pass and calls him merely “hapless.” (For what will likely be a more nuanced look at the incident, we will need to wait for the forthcoming The New York Times Presents documentary, “Malfunction: The Dressing Down of Janet Jackson.”)

More troublingly, in the book’s epilogue, Corn-Revere creates a startlingly false equivalency comparing crimes by “those who stormed the U.S. Capitol because they disliked the election result” and “those freelance socialists who destroyed property and looted stores under the cover of demonstrations for social justice.” Inexplicably, Corn-Revere writes that these divergent groups “deserve the same treatment.” A violent insurrection and attempted takeover of the Capitol building that left five dead hardly seems legally or morally equivalent to property damage and theft. Although Corn-Revere indicates he is no fan of former President Trump, these “a plague on both your houses” points are eerily reminiscent of Trump’s deservedly maligned remark that the 2017 Charlottesville rally “had people that were very fine people, on both sides.”

In its conclusion, “The Mind of the Censor” takes a sour turn. Corn-Revere dismisses significant critical race theorists’ advocacy for hate speech protections with arguments that read as transparently one-sided. It is disappointing that he makes this critique of the academic left without addressing the fact that the censors he described in earlier chapters were always people in power enforcing majoritarian culture, often against minorities and their views. The disproportionate emphasis at the tail end of the book that Corn-Revere places on those he lumps together as members of the “anti-free speech movement” seems disconnected from what came before. Its abruptness feels contrived to provide a politically balanced coda to his censorship case studies.

Nevertheless, even with these issues, “The Mind of the Censor” presents invaluable evidence of how censors have repeatedly sought to attack free expression in America’s past and provides a vital rallying call for how we must be on our guard to fight the forces of censorship whenever they reappear in the future.

Response by Robert Corn-Revere

I appreciate Ian Rosenberg’s review of “The Mind of the Censor and the Eye of the Beholder,” and particularly his judgment that the book “succeeds admirably” in its goal of showing the role censors have played in the law of free expression and how to recognize them when they are in our midst. So, mission accomplished, I guess. But Mr. Rosenberg also expresses some reservations about the book, which I’d like to address.

Robert Corn-RevereRobert Corn-Revere

He points to what he calls the book’s “discursive style that is often repetitive and lacking in narrative direction.” While I may not agree with his conclusion, this is a fair point. I readily acknowledge the book might not be for everyone. Aficionados of law review style, or those who just want to read lists of case descriptions, may find it not to be their cup of tea. This is a judgment readers can make on their own. Or, as I note in Chapter 1, de gustibus non est disputandum [“In matters of taste, there can be no disputes”].

Mr. Rosenberg notes the book “begins with four chapters on the life and legacy of Anthony Comstock,” and suggests too much space is devoted to Comstock. I might be inclined to agree if I had written four chapters on Comstock, but in fact, there are only three: Chapter 2 addresses his career as a professional censor; Chapter 3 examines his legacy (spoiler alert: it doesn’t end well for him); and Chapter 4 briefly summarizes his tactics (the “Comstock Playbook”) that are still used by anti-speech activists today. Chapter 1 introduces Comstock as a historical figure but is devoted principally to discussing the nature of free speech, the bipartisan nature of censorship, and the concept of the censor’s dilemma. Too much Comstock? You be the judge.

His main concerns, however, seem more politically oriented. He calls my description of the 2004 Super Bowl wardrobe malfunction (“a poorly-planned and flawed execution of a last-minute stunt secretly contrived by Jackson and her choreographer”) a “jarring editorial remark” that lacks support. Importantly, that characterization is drawn from CBS’s response to the FCC in 2004 (based on interviews of more than 70 individuals who had any connection with the halftime show, public statements from both performers, and review of tens of thousands of pages of documents and other materials). I represented Viacom/CBS in its response to the FCC, and my description is based on the investigation I conducted. Mr. Rosenberg’s objection is to a throwaway line in Chapter 1 whereas the discussion of legal issues in the Super Bowl case comes in Chapter 8.

He suggests a “more nuanced” look at the incident may be presented in a just-released documentary “Malfunction: The Dressing Down of Janet Jackson,” which had not yet aired when Mr. Rosenberg wrote his review. Now, with the advantage of having just seen it, I can report the documentary adds nothing new to the story; if anything, it verifies the CBS account of how the “malfunction” occurred. But its main focus is to argue that Jackson was unfairly treated more harshly than Timberlake in the event’s aftermath, a point about which my book takes no position. More nuanced? Hardly. The documentary mainly just tells viewers how they should feel about Janet Jackson.

Mr. Rosenberg’s most serious concern — and the most glaring flaw in his analysis — is the assertion that the book suggests a “startling false equivalency” between the mob that stormed the U.S. Capitol on Jan. 6, 2021, and those who destroyed property and looted stores during social justice protests, and compares my analysis to President Trump’s remarks about “fine people” on both sides of the 2017 Charlottesville demonstrations.

This charge misses the point entirely. Nothing in the book suggests the crimes committed were equally serious, or that I was making moral judgments about the participants on either side. Actually, I thought my meaning was pretty obvious if you read the entire passage in context:

But all rationalizations aside, one thing must be made clear: violence is not speech, and speech is not violence. Those who stormed the U.S. Capitol because they disliked the election result committed crimes that call for prosecution, regardless of any political message they might have intended. And those freelance socialists who destroyed property and looted stores under the cover of demonstrations for social justice deserve the same treatment. The First Amendment protects heated rhetoric even when it is hateful and irresponsible, but it has never protected acts of violence and destruction.

To call this (or anything else in the book) “eerily reminiscent” of Trump indicates inattention to the many references in the book to the former president as speaking “like a sixth-grader who flunked civics,” his staff as a group of people who “would be right at home in Orwell’s Oceania,” and to the tiki torch-wielding marchers in Charlottesville as a “repulsive spectacle.”

Overall, Mr. Rosenberg’s claims illustrate the danger — of which I warned against in my book — of analyzing First Amendment issues through the lens of one’s own political sympathies. His concern that the book includes a “critique of the academic left” fails to acknowledge that much of the current argument against “free speech values” comes from there, and it ignores that most of my book argues against examples of censorship by conservatives. He labels my defense of a culture of free expression as “one-sided” without any suggestion that I failed to accurately characterize the main arguments of free speech skeptics, or that my analysis is wrong.

The ideas in my book, like all ideas, are fair game for discussion and debate. But that debate should begin with what the book actually says.


ACLU settlement in Arelene’s Flowers case

This from a recent ACLU press release:

A settlement has been reached in Arlene’s Flowers v. Ingersoll and Freed, the case where a flower shop refused to provide Robert Ingersoll and Curt Freed flowers for their wedding.

The U.S. Supreme Court denied a petition for certiorari in July 2021, and the flower shop filed a petition for rehearing. Under the settlement, the parties agreed that the flower shop would withdraw the petition for rehearing. The settlement leaves in place the two unanimous decisions from the Washington Supreme Court that the Constitution does not grant a license to discriminate against LGBTQ people. The couple will donate a settlement payment by Arlene’s Flowers of $5,000 to a local PFLAG chapter, and the couple plans to personally match the donation.

The following statement is from Freed and Ingersoll:

“We took on this case because we were worried about the harm being turned away would cause LGBTQ people. We are glad the Washington Supreme Court rulings will stay in place to ensure that same-sex couples are protected from discrimination and should be served by businesses like anyone else. We are also pleased to support our local PFLAG’s work to support LGBTQ people in the Tri-Cities area. It was painful to be turned away and we are thankful that this long journey for us is finally over.”

David Schulz files cert. petition in media access case

The case is Asociación de Periodistas de Puerto Rico v. Commonwealth of Puerto Rico. The two issues raised in the case are:

David A. SchulzDavid A. Schulz

(1) Whether courts may summarily close judicial proceedings and deny access to the official recordings of those proceedings without determining whether the First Amendment public access right attaches to them; and (2) whether Article 5.005 of Puerto Rico’s Judiciary Act of 2003, as construed by the Puerto Rico Supreme Court to require automatic closure of all domestic violence proceedings and the official recordings of those proceedings, violates the First Amendment public access right under Globe Newspaper Co. v. Superior Court.

Facts

This Petition by the Asociación de Periodistas de Puerto Rico (the Puerto Rico Journalists’ Association, or “ASPPRO”) seeks review of the Puerto Rico Supreme Court’s holding that all judicial proceedings involving allegations of domestic abuse must be closed to the press and public, without exception, pursuant to Article 5.005 of Puerto Rico’s Judiciary Act of 2003. The decision refused a motion for access to the sealed recordings of civil and criminal judicial proceedings in which courts denied a victim of domestic violence protection from her abuser three times over the course of a single week. She was murdered by her abuser soon thereafter.

Counsel of record

 David A. Schulz, Media Freedom & Information Access Clinic & Abrams Institute, Yale Law School

Cert. petition: Knight Institute and ACLU challenge ‘prepublication review’ process

The case is Edgar et al v. Haines. In its cert. petition (Jameel Jaffer, counsel of record), the petitioner’s state:

Jameel JafferJameel Jaffer

All eighteen U.S. intelligence agencies, including the four that are party to this suit, impose lifetime “prepublication review” obligations on former employees, prohibiting them from writing or speaking publicly without first obtaining the government’s approval. The agencies’ prepublication review regimes have expanded dramatically since this Court decided Snepp v. United States, 444 U.S.507 (1980) (per curiam), which held, in a cursory footnote, that the First Amendment did not preclude the Central Intelligence Agency from imposing a prepublication review obligation on a former CIA officer. The lower courts, including the Fourth Circuit in this case, have understood Sneppto mean that agencies’ prepublication review regimes are exempt from meaningful scrutiny under the First Amendment. As a result, Petitioners here, and millions of former public servants like them, are subject to an onerous and far-reaching system of prior restraint that lacks the substantive and procedural safeguards that the Court has insisted on in all other contexts involving the licensing of speech. In addition, the public is routinely and unjustifiably denied access to speech that could inform public debate about foreign policy, national security, and war—issues as to which public opinion plays an especially important role in checking government power.

This from a Knight Institute press release:

ACLU

On behalf of five former government employees, the Knight First Amendment Institute at Columbia University and the American Civil Liberties Union petitioned the U.S. Supreme Court to review a challenge to the government’s system of “prepublication review,” which prohibits former public servants from writing or speaking publicly without first obtaining the government’s approval. The groups urge the Court to overrule a 41-year-old Supreme Court decision, reconsider the legal standard applicable to government prepublication review, and hold that the prepublication review regimes being challenged are unconstitutional.

“The prepublication review system imposes an intolerable cost on the free speech rights of former public servants, and it distorts and impoverishes public debate about issues that could hardly be more important,” said Jameel Jaffer, executive director of the Knight First Amendment Institute. “At least in their current form, these prepublication review regimes are fundamentally inconsistent with the First Amendment.”

Judge orders prior restraint against The New York Times

Forthcoming book: Mamet on the ‘death of free speech’

Recessional: The Death of Free Speech and the Cost of a Free Lunch

Renowned author and playwright David Mamet decries how activists on the left are repressing free thinking, freedom of speech, and the bohemian American spirit, in this hard-hitting, definitive account of how cultural commissars are trying to turn America into a homogenous state.

The conservative right was once the party of moralistic stick-in the-muds, but now, they’re the defenders of rebels and iconoclasts. How did this happen? In a broad-ranging journey through history, the Bible, and literature, David Mamet examines how politics and cultural attitudes about rebellion have shifted in the United States.

Mamet reveals how culture is being homogenized — how stories, including movies and books, are being shaped with the aid of focus groups, committee meetings, and sensitivity readers, and how it is being “cancelled” by diversity boards and social media mobs poised to call out any transgression. Exposing how oppressive cultural codes—encapsulated in buzzwords such as inclusion, diversity, social justice, appropriation—are constricting the vibrant intellectual life of the world’s freest country, Mamet calls for it to stop. By trying to shut down freedom of thought and expression.

Forthcoming book: Simon and Mahoney on censorship and lies 

The Infodemic: How Censorship and Lies Made the World Sicker and Less Free

How censorship turned a terrible disease into an assault on rights

As COVID-19 spread around the world, so did government censorship. The Infodemic lays bare not just old-fashioned censorship, but also the mechanisms of a modern brand of “censorship through noise,” which moves beyond traditional means of state control—such as the jailing of critics and restricting the flow of information—to open the floodgates of misinformation, overwhelming the public with lies and half-truths.

Joel Simon and Robert Mahoney, who have traveled the world for many years defending press freedom and journalists’ rights as the directors of the Committee to Protect Journalists, chart the onslaught of COVID censorship beginning in China, through Iran, Russia, India, Egypt, Brazil, and inside the Trump White House. Increased surveillance in the name of public health, the collapse of public trust in institutions, and the demise of local news reporting all contributed to help governments hijack the flow of information and usurp power. Full of vivid characters and behind the scenes accounts, The Infodemic shows how under the cover of a global pandemic, governments have undermined freedom and taken control—this new political order may be the legacy of the disease.

More in the news

2021-2022 SCOTUS term: Free expression & related cases

Review granted

Pending petitions

Petition withdrawn 

Review denied

Last FAN

This article is part of First Amendment News, an editorially independent publication edited by Professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. Opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Professor Collins.