”Common sense suggests that something is seriously awry“ with this Judge.

Censorship

Censorship -- the control of the information and ideas circulated within a society -- has been a hallmark of dictatorships throughout history. In the 20th Century, censorship was achieved through the examination of books, plays, films, television and radio programs, news reports, and other forms of communication for the purpose of altering or suppressing ideas found to be objectionable or offensive.

Not all censorship is equal, nor does all arise from government or external force. People self-censor all the time; such restraint can be part of the price of rational dialogue.

To understand censorship, and the impulse to censor, it is necessary to strip away the shock epithet value that is attached to the word at first utterance. One must recognize that censorship and the ideology supporting it go back to ancient times, and that every society has had customs, taboos, or laws by which speech, dress, religious observance, and sexual expression were regulated. In Athens, where democracy first emerged, censorship was well known as a means of enforcing the prevailing orthodoxy. Freedom of speech in Ancient Rome was reserved for those in positions of authority. The poets Ovid and Juvenal were both banished, and authors of seditious writings were punished severely. The emperor Nero deported his critics and burned their books.

Censorship is no more acceptable for being practiced in the name of religion than for national security (which is certainly an acceptable secular substitute for religious rationales in the 20th Century). It only indicates that confronting censorship must always involve confronting some part of ourselves and our common history that is both painful and deep-seated.

Unique historical considerations can also spawn censorship. Perhaps the best example is the "Haßsprache" (hate speech) law in Germany. It is illegal, under German law, to depict any kind of glorification of the Nazis or even to display the emblem of the swastika. The law is enforced to the point where even historical battle simulations may not use the actual emblems that were used during World War II (by the Waffen SS, for instance). That is why this series of snapshots of conditions in various countries and regions will first deal with other areas and levels of censorship and access problems, and then return to the situation in the EU.

In a global context, governments have used a powerful array of techniques and arguments to marshal support for their censorship efforts. One of the earliest, as noted, is the religious argument. Certain things are deemed to be offensive in the eyes of the Deity. These things vary from country to country, religion to religion, even sect to sect. They are mostly, though not always, sexual in nature. The commentaries on the nature of the impulse to be censorious towards sexual expression are too numerous even for a wide ranging project like this. The curious reader is urged to read far and wide in the classic texts to see that the problem of governments and citizens reacting in this way is not a new one. What is new are the potential global consequences.

National security and defense runs a very close second to the religious impulse as a rationale for suppression. While nowhere near as old as the religious impulse to censor, in its more modern form it has been even more pervasive. And while the influence of religion on secular affairs is muted in certain parts of the world, the influence of governments usually is not. It is difficult to think of any government that would forego the power, in perceived extreme circumstances, to censor all media, not simply those that appear online. The question, asked in a real world scenario, is what could be considered extreme enough circumstances to justify such action?

There are also forms of censorship that are not so obtrusive, and that have to be examined very carefully to define. "Censorship through intimidation" can be anything from threats against individuals to a government proposing to monitor all activities online (as in one proposal current at the time of this writing in Russia). If citizens feel their activities online will be screened by governmental agencies in their country, their inclination to engage in expression will be much less than if their government stays away -- the classic "chilling effect."

"Censorship through consensus" is also a real possibility. There are countries where the adherence to a shared social, though not religious, code is a fact of life. Understanding that entails discerning where the boundaries of expression are, and where they might be interfered with in a consensus situation.

Economic censorship is more difficult to define. The Roman essayist Cicero used the immortal phrase "Cui bono?" (Who Profits? -- the ancient version of our "Follow the money."). But numbers may tell only part of the story. In a situation where there is economic censorship, is it isolated or undertaken in conjunction with some type of political censorship? Is there a monopoly within a certain country that is threatened by competition, or a class of oligarchs that is threatened by the emergence of real economic opportunity for smaller firms? Is the economy in a locale more prone to monopolistic arrangements than to genuine competition and innovation?

On a different level, the actions and reactions of large corporations to the Internet has to be factored into any discussion of economic censorship. Some firms have paid search engine companies for preferential placement in particular subject categories when a user submits an online search inquiry. Is the information tainted because someone has paid for it to be "found," or should the standard be that so long as all responsive information is displayed to the user, placement is irrelevant?

Because so many nations of the world are now considering the filtering system known as PICS (Platform for Internet Content Selections) as an answer to their concerns, the question of parental controls also must be addressed. In many countries, the state justifies censorship with the claim that it is acting in loco parentis. Such claims, whether interpreted as "state as parent" or "state as Big Brother," are responsible for many of the restrictions on information distribution found today across the world.

The legal precedents, which usually provide clear guidelines in such matters, are mixed here. Courts have ordered operations and vaccinations in the public health interest, but courts have also ruled that religious beliefs are a compelling answer to public concerns. The question is not whether there are legitimate parental claims, but rather at what point is there a public interest that overrides them? Is it only in matters of imminent and life-threatening danger or does it extend beyond that clearly delineated realm?

That question is usually most clearly seen in the restriction on so-called "obscene" or "pornographic" material online. This is probably the most pervasive type of censorship around the world, even though the behavior it seeks to limit is, almost by definition, private and personal in the most fundamental way. "I know it when I see it," a U.S. Supreme Court Justice once said of obscene material.

That last formulation might seem, at first glance to be the most reasonable, but it excludes the biggest current issue in terms of pornographic material: child pornography. People trafficking in such material, even in the United States, have little or no recourse to free speech or free expression claims. Yet even in the United States, there is no uniform age of consent.

Those who were affluent enough (or desperate enough) to be in a place where different laws or customs were in effect became refugees or expatriates. But the Internet pushes against national, or even, supranational borders in a way that no medium before it has ever done. The potential for expansion, or opening economic and political opportunities where there had been none before, is vast on a scale beyond imagination. So, too, is the potential for calamitous misuse, both by governments and by corporations.

The one redeeming fact is that, in most parts of the world, the ideal of liberty is embraced at least theoretically, and no state openly claims a commitment to religious, intellectual, artistic, or political censorship. The universal philosophical embrace of free expression is reflected in the many covenants and declarations that have been passed in support of freedom and human rights; these include the UN Charter (1945), the UN Declaration of Human Rights (1948), the UN Covenants on Civil and Political Rights (1966) and on Economic, Social, and Cultural Rights (1966), the European Convention on Human Rights (1953), the Helsinki Final Act (1975), and the American (Western Hemisphere) Convention on Human Rights (1978).