Sense or Censorship?
Every once in a while an issue comes along that elucidates a fundamental misunderstanding many Americans have with respect to Constitutional rights. The latest flap involves “The Pedophile’s Guide to Love and Pleasure” a self-published e-book by author Philip Greaves, a 47-year-old retired nurse’s aide. Internet retailer Amazon had originally made the book available for sale, but has pulled it from the site following public outcry and calls for a nationwide boycott against the company. Predictably, some Americans call Amazon’s decision to pull the book “censorship.” Is it?
Let’s begin with the book itself. In a fairly extensive search of stories on this issue, I didn’t come across a single one in which anyone demanded that the author be forbidden to write the “The Pedophile’s Guide to Love and Pleasure.” There is no question that such a demand would constitute the essence of censorship and would clearly violate the First Amendment’s protection of free speech.
Not that the First Amendment itself is sacrosanct. For example, the Smith Act passed in 1940 (Sec. 2835) states that ”whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.”
Nor are its limitations crystal clear. The Bipartisan Campaign Reform Act of 2002, aka the McCain-Feingold Act, un-Constitutionally regulated political speech for almost eight years. It was overturned by the Supreme Court earlier this year, which was a reversal of two previous decisions made by the same Court. The act was a misguided attempt to “clean up” politics by limiting campaigns’ spending and by imposing a ban on advocacy advertising in the closing days of those campaigns.
The case centered on a 90-minute movie made by Citizens United, a conservative group, that criticized Hillary Clinton during the 2008 election campaign. Federal courts contended that the movie was a essentially a very long campaign ad and should be regulated as such. It should be noted that many of the same people who supported censorship then, are the ones accusing Amazon of censorship now.
Author Greaves may be advocating something most Americans find distasteful, as in making ”pedophile situations safer for those juveniles that find themselves involved in them,” which was the product description of the book while it was still for sale. But nothing there violates any codified restrictions of speech.
This point brings us to another aspect of the law, the area where most of the confusion resides. Highlighting that confusion is the rather obtuse definition of “obscenity,” which, as defined by the Supreme Court, is determined by “community standards.” Apparently what kept this book on the acceptable side of the line was the fact that it didn’t have illustrations or pictures referencing pedophilia, which is a clear no-no according to established legal precedents. Even so, community standards are still tremendously flexible. What might be considered obscene in Mormon-dominated Utah could end up on a Broadway stage in New York City. Amazon is a nationwide book retailer, which means that it has the unenviable task of determining who is offended by what in thousands of separate communities. The most logical solution to such a problem was Amazon’s initial one: to make the book available everywhere, so that those who are offended can simply choose not to buy it.
Yet sometimes what looks good on paper doesn’t pan out. The backlash has been ferocious, and the last thing a viable business needs in any economic climate, much less this one, is to fend off calls for a nationwide boycott. There is no doubt that the public outcry is directly responsible for the company’s “reassessment,” which resulted in its dropping the book from its onsite sales inventory.
Does that move constitute censorship? It does only if one contends that Amazon, as well as every other book-seller, is obligated to sell every book that is published. No retail outlet can be held to such an impossible standard, and there is no question that each of them chooses which books to sell based on the simplest business consideration: Will this product turn a profit or not? Speech may indeed be free, but no one is constitutionally obligated to print, package, and promote that speech.
Thus Amazon, like many other businesses, is forced to make choices about what will be available at its store. On what are those particular choices based? Here’s where the issue gets really interesting. For the last several years, there is little question that our entertainment companies have, to quote the late Daniel Patrick Moynihan, “defined deviancy down.” What used to be considered socially unacceptable has made its way into mainstream movies, television, and music. Purveyors of popular culture have taken it upon themselves to cater to the lowest common denominator of public taste, which they refer to as “cutting-edge.” These were free choices made by individuals in executive suites, based on the idea that vulgarity and coarseness lead to profits.
Many Americans may be annoyed by what they perceive as a corresponding deleterious effect on society, but if cutting-edge keeps selling, expect more of it. On the other hand, one can also expect concerned Americans to exercise their free speech rights by attempting to pressure entertainment-industry executives to make more socially responsible decisions (a pipe dream), or to make it clear that the failure to do so will result in boycotts or in any other measures aimed at affecting a company’s bottom line. Such boycotts have been tried before, with varying amounts of success.
If Amazon determines that it will lose more revenue from disaffected customers by making the book available than it will gain in profit by selling the book, then expect it to remain unavailable. That’s not censorship; that’s just common business sense. On the other hand, Amazon may decide to stand on principle and sell the book anyway. But one imagines that there are better fights to choose than standing tall for a volume about the pleasures of pedophilia.
There are also liability issues. Some legal experts contend that Amazon could be held liable if someone buys such a book and commits an act of pedophilia as a result. At first blush, such an extension of “causality” is absurd, especially considering the number of books available that could conceivably influence or teach people to perform any number of illegal acts. There are books available that teach how to make a bomb or how to smuggle drugs into the US. Should the authors, publishers, and purveyors of such books be held liable if someone is caught making a bomb or smuggling a truckload of drugs into the country?
Such questions ought to be laughable. Yet when one considers that several municipalities have attempted to sue gun dealers for crimes committed using those guns, it remains quite possible that such a tortured definition of extended liability could be used to pursue litigation in this arena. Ironically, the success of such a legal tactic would likely produce a level of censorship beyond anything America has ever witnessed.
Americans have a right to be angry at a company that was apparently unconcerned about selling a particular book, and that company has a right to address that anger in any way that it sees fit to do so. Whatever Amazon ultimately decides, some group of Americans will come away unhappy. Accusations of censorship, however, are misplaced. With few limitations, American are free to say what they want. Speech is not consequence-free, though, as far too many Americans like to believe that it is. Being criticized for something is a world apart from being prosecuted for it. Only the latter constitutes censorship.