"We can ban books!"... Hope and Change (TM), coming your way!

Recently the Supreme Court heard oral arguments in Citizens United v. Federal Election Commission, the latest in a series of challenges to the application of the McCain-Feingold Bipartisan Campaign Finance Reform Act (or, as I've taken to calling it, Johnny McCain's Magical Muzzle). Not surprisingly, the Solicitor General for the new administration argued in favor of the lower court's ruling that Citizens United could be prevented from showing their film, Hillary: The Movie, on an On Demand service shortly before the Democratic primaries.

What is surprising (or not) is the statements made by the Solicitor General in these arguments in response to questions from the bench. On page 27 of the oral arguments transcript, Justice Alito engages Malcolm Stewart (the Solicitor General) in an exchange where Stewart makes some pretty bold statements regarding the administration's view of its authority under BCRA:

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JUSTICE ALITO: That's pretty incredible. You think that if -- if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?

MR. STEWART: I'm not saying it could be banned. I'm saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its --

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At this point Justice Alito interjects with another question, but given the rest of his arguments, we can safely assume Stewart was going to finish with "political action committee." On the next page, Justice Kenndy engages Stewart in another question:

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JUSTICE KENNEDY: Well, suppose it were an advocacy organization that had a book. Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60 -- 90-day period -- the 60 -- the 30-day period?

MR. STEWART: If the book contained the functional equivalent of express advocacy.

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I sure hope I'm not the only one alarmed by this assertion of power. I've always been against BCRA not only on first amendment grounds, but also because it's at least arguable that the power granted to Congress by the Constitution to regulate federal elections does not extend to regulating the campaigns that precede them. And now the federal government is asserting that it has the power to ban books under this law, provided that they aren't paid for in a certain manner.

If that doesn't sound too onerous, the manner in which such books must be funded should be given a second glance. Federal election law is probably about as complex as the federal tax code, so I resorted to the Wikipedia entry on [ame=http://en.wikipedia.org/wiki/Political_action_committee]political action committees[/ame] to see if it explains how they must be funded. Indeed, it does. According to Wikipedia (an important caveat, to be sure) a PAC must be funded by donations from individuals, and any individual cannot donate more than five thousand dollars per year. Corporations are not allowed to donate to PACs. This means a publisher is prohibited from printing and distributing a book that it pays for itself if the book is deemed to be an "electioneering communication." According to Stewart (page 29):

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CHIEF JUSTICE ROBERTS: If it has one name, one use of the candidate's name, it would be covered, correct?

MR. STEWART: That's correct.

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Although the law explicitly exempts newspapers from funding requirements, I can't imagine why they should be treated any different from any other publisher which puts words to paper. If corporations can be prohibited from publishing "electioneering communications" under BCRA and it does not run afoul of the Constitution, I fail to see why that provision which exempts newspapers from the funding requirements cannot be removed at some future date with no problems at all.

Book banning, and the theoretical muzzling of the press: this is "Hope and Change"?

Book banning my ass. This is no more banning books than having to get a license is banning driving.

It's called regulation champ.

Agree with the regulation, or don't. If you agree with the regulation, you agree with it's enforcement.
If you disagree with it, then act towards getting the regulation removed, don't sit around being an armchair advocate criticising the fact that the law is or should be enforced.

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Originally Posted by MrShrike

If you disagree with it, then act towards getting the regulation removed, don't sit around being an armchair advocate criticising the fact that the law is or should be enforced.

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Whoa, what the fuck is this? This forum is dedicated to discussion. Hassling people for expressing an opinion on the internet instead of doing something about the issue in real life is retarded. Expressing and discussing ideas is what we're all here for. By all means, disagree with the opinion if you like, but don't do what you just did. If you can't deal with the fact that people express their opinions in a discussion forum, don't spend time in discussion forums.

Haha....except of course, that's exactly what you just did to me; told me not to express an opinion I hold. Ironic, no?

I understand you're sympathetic to that opinion, but I'm sure you'd agree there nothing improprer about telling someone that their approach to an issue (i.e. laws they disagree with should be ignored, rather than changed) is the wrong one.

I'm just expressing my opinion, afterall. None of us actually have the power to command one another to silence.

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Originally Posted by MrShrike

I'm just expressing my opinion, afterall. None of us actually have the power to command one another to silence.

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Syme is a moderator

ok guys less meta-debating and more back to the topic ok

Right.

Put simply, the OP's chief complaints can be summed up as "regulation is fascism" and "ooooh scary, laws can be changed".

This doesn't even seem to be about banning books per se, so much as limiting the ability for campaigners to campaign via the medium of books. There isn't anything particularly wrong with that, imo.

It's not necessarily a bad thing to have a limited amount of censorship going on - what makes it a problem is when the censorship becomes intrusive and gains a dangerous agenda. I have no problem with the idea of censorship for things such as materials promoting hate, child pornography, snuff films etc., so it's actually counterproductive to cry 'censorship is bad!' when it's not being used in a bad way.

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Originally Posted by coqauvin

This doesn't even seem to be about banning books per se, so much as limiting the ability for campaigners to campaign via the medium of books. There isn't anything particularly wrong with that, imo.

It's not necessarily a bad thing to have a limited amount of censorship going on - what makes it a problem is when the censorship becomes intrusive and gains a dangerous agenda. I have no problem with the idea of censorship for things such as materials promoting hate, child pornography, snuff films etc., so it's actually counterproductive to cry 'censorship is bad!' when it's not being used in a bad way.

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But isn't censorship by its very nature intrusive?

Well to a point, but if it's cutting off material that I would consider either intrusive or well beyond reasonable distaste, does that make it instrusive?

I see it more as a filter, albeit one prone to abuse.

It's okay to censor material that you consider "well beyond reasonable distaste"???

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Originally Posted by coqauvin

Well to a point, but if it's cutting off material that I would consider either intrusive or well beyond reasonable distaste, does that make it instrusive?

I see it more as a filter, albeit one prone to abuse.

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Who is setting the moral standard for reasonable distaste?

It's pretty much a culture by culture thing.

Look, I realize all this stuff is completely relative and subjective, and that i'm arguing against some libertarians. The point I'm making is that there are certain acts that are universally distasteful, generally because their creation requires the abuse of another group, whether it's women, kids and/or any other human being.

Are you telling me the video of the decapitation of a hostage in Afghanistan shouldn't be censored? That the video of the brutal hammer murders in eastern Europe aren't beyond 'reasonable distaste'? That child pornography shouldn't be censored or stamped out and snuff videos are ok to distribute, but illegal to make?

Ok, enough of the hyperbole. Like I've already stated, by 'reasonable distaste' I mean material whose creation requires the abuse of another entity, whether or not said entity is there willingly.

I'd agree that it's reasonable to ban child pornography. Why should videos of people be killed be banned, though? Yes, I am basically telling you that a video of al-Qaeda beheading someone shouldn't be banned. And of course a video of a murder is "beyond reasonable distaste"; what does taste have to do with legality though?

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Originally Posted by Syme

I'd agree that it's reasonable to ban child pornography. Why should videos of people be killed be banned, though?

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What is the difference between censoring child pornography and censoring videos of beheadings? Both are non-consensual for the victim and both are crimes in our countries.

On first glance there seems to be a big gulf between the two, but looking deeper I can't see much difference. Would the beheading of a child be censored? What about videos of adult rape?





[disclaimer: I'm in no way advocating any of the above]

Child pornography is an industry; people make child porn specifically for the purpose of providing it to people who want to see child porn. They make money off it. Banning the possession or distribution of that kind of material is part of fighting the industry that creates it, and therefore is part of preventing the kids from being abused in the first place. Videos of killings generally don't fit the same model. Al-Qaeda's beheading videos certainly don't, nor do those hammer-murder videos.

IF someone was videotaping murders for the purpose of selling the video to people who want to see it, then I'd be okay with banning that, because banning that sort of video would make it less likely that it'd be produced at all. But snuff videos of that kind are really an urban legend.

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Originally Posted by Syme

Child pornography is an industry; people make child porn specifically for the purpose of providing it to people who want to see child porn. They make money off it. Banning the possession or distribution of that kind of material is part of fighting the industry that creates it, and therefore is part of preventing the kids from being abused in the first place. Videos of killings generally don't fit the same model. Al-Qaeda's beheading videos certainly don't, nor do those hammer-murder videos.

IF someone was videotaping murders for the purpose of selling the video to people who want to see it, then I'd be okay with banning that, because banning that sort of video would make it less likely that it'd be produced at all. But snuff videos of that kind are really an urban legend.

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That seems kind of arbitrary. Simple illegality isn't enough for censorship, but if the material is produced on a large enough scale then it qualifies. Of course, money isn't the only object. Al Qaeda and others were probably counting on their video getting publicity for without it their killing of one or two hostages would be rendered useless; similarly, if producers of child pornography have no audience, it is also rendered useless as an industry.

Is there a distinction to be made between protecting the victims, or potential victims, portrayed in such material, and protecting the viewers? That seems to me to be a more realistic distinction, but then it comes back to the problem of who exactly decides what needs to be censored.

That said, I don't really have an answer myself right now.

I would argue that even if al-Qaeda's videos aren't seen by many people, they have their intended effect. After all, most people probably don't learn of these videos by watching the actual videos; they learn about by reading in the newspaper, or seeing on a news program, that al-Qaeda has produced another beheading video. The percentage of people who actually track down and watch the videos after learning about their existence is probably fairly small. To put it another way, the effectiveness of al-Qaeda beheading videos depends on people knowing of the videos, not necessarily seeing the videos. But the child porn industry needs people to actually buy and watch their videos, not just know that child porn exists.

I mean, can you seriously argue that it ought to be illegal to possess video footage that simply shows an illegal act occurring?

EDIT: Yes, I would say that the fundamental question to be asked when considering censorship of videos depicting criminal acts is whether the censorship will protect the victims. If banning the creation/possession/distribution of such videos makes it less likely that the criminal acts depicted in the videos will occur at all (as is certainly the case with child pornography), then the ban is justified. If not, then the ban isn't justified; it's just pointless moralizing. "Protecting the viewers" doesn't seem like it should matter; I'm not even sure that it makes sense. Protecting them from what, seeing something gross?

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Originally Posted by Syme

I would argue that even if al-Qaeda's videos aren't seen by many people, they have their intended effect. After all, most people probably don't learn of these videos by watching the actual videos; they learn about by reading in the newspaper, or seeing on a news program, that al-Qaeda has produced another beheading video. The percentage of people who actually track down and watch the videos after learning about their existence is probably fairly small.

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Granted, but without the existence and dissemination of the video the beheading and the various explanations would not be known. I see your point though. Inevitably people would get hold of the video, and it would hardly be illegal to report it.

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I mean, can you seriously argue that it ought to be illegal to possess video footage that simply shows an illegal act occurring?

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No, I can't, but apparently in some cases you can.

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EDIT: Yes, I would say that the fundamental question to be asked when considering censorship of videos depicting criminal acts is whether the censorship will protect the victims. If banning the creation/possession/distribution of such videos makes it less likely that the criminal acts depicted in the videos will occur at all (as is certainly the case with child pornography), then the ban is justified. If not, then the ban isn't justified; it's just pointless moralizing. "Protecting the viewers" doesn't seem like it should matter; I'm not even sure that it makes sense. Protecting them from what, seeing something gross?

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Heh, from seeing something gross perhaps, but also in other areas. Like certification of films (12, 15, 18 etc) and games out of fear they might influence people's behaviour, or the censorship of polarising figures... such as the BBC's voice ban on Gerry Adams in the 80s and 90s, or even Britain refusing entry to Geert Wilders and Canada refusing George Galloway. Censoring a beheading could be rationalised by arguing that such an extreme act might galvanise and radicalise certain people either way to imitate or commit other crimes.

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Originally Posted by benzss

Granted, but without the existence and dissemination of the video the beheading and the various explanations would not be known. I see your point though. Inevitably people would get hold of the video, and it would hardly be illegal to report it.

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I mean, yeah, obviously without the existence of the video there would be no issue; so it would be great if we could stop these videos from being made in the first place. We really can't, though. As for dissemination, they are usually posted to jihadist websites, and sent to news organizations. The news reports on them from there, so they have their intended effect regardless of how extensively the videos themselves are disseminated.

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Originally Posted by benzss

No, I can't, but apparently in some cases you can.

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I don't get it :(

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Originally Posted by benzss

Heh, from seeing something gross perhaps, but also in other areas. Like certification of films (12, 15, 18 etc) and games out of fear they might influence people's behaviour, or the censorship of polarising figures... such as the BBC's voice ban on Gerry Adams in the 80s and 90s, or even Britain refusing entry to Geert Wilders and Canada refusing George Galloway. Censoring a beheading could be rationalised by arguing that such an extreme act might galvanise and radicalise certain people either way to imitate or commit other crimes.

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I'm okay with rating films/games as being inappropriate for people below a certain age; what I'm arguing against here is outright prohibition, not age restrictions. As for censoring polarizing figures, or refusing them entry to a country, I think it's generally inexcusable. Whenever I hear about that sort of thing being, it just makes me shake my head at the low regard so many people (usually Europeans) seem to have for freedom of speech.

Before a beheading video could be banned on the grounds that it might encourage others to commit similar crimes, I'd want to see hard evidence supporting the realism of such a concern. Suggesting that something might inspire criminal acts seems to be a pretty good (and popular) way to attack free speech, so such suggestions need to be treated with a lot of initial skepticism and examined very carefully before being acted on. For every person making such claims because they have good reason to believe that the material in question might actually inspire more crime and are genuinely concerned about the possibility, there are probably ten people who are just trying to get something they don't like banned and know that playing on fears of copycat crime is a good way to do it.

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Originally Posted by Syme

I'm okay with rating films/games as being inappropriate for people below a certain age; what I'm arguing against here is outright prohibition, not age restrictions. As for censoring polarizing figures, or refusing them entry to a country, I think it's generally inexcusable. Whenever I hear about that sort of thing being, it just makes me shake my head at the low regard so many people (usually Europeans) seem to have for freedom of speech.

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Couldn't agree more. It's a cause of much frustration for me.

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Before a beheading video could be banned on the grounds that it might encourage others to commit similar crimes, I'd want to see hard evidence supporting the realism of such a concern. Suggesting that something might inspire criminal acts seems to be a pretty good (and popular) way to attack free speech, so such suggestions need to be treated with a lot of initial skepticism and examined very carefully before being acted on. For every person making such claims because they have good reason to believe that the material in question might actually inspire more crime and are genuinely concerned about the possibility, there are probably ten people who are just trying to get something they don't like banned and know that playing on fears of copycat crime is a good way to do it.

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This seems like a reasonable way to look at censorship, but any kind of censorship where the viewer is apparently being protecting grates against my concepts of free opinion and speech etc. It's a similar argument to that of gun control advocates, who assume that because one bad apple will be influenced badly that nobody should enjoy the right of ownership to a gun. I mean, removing guns, or offending videos/games/beheadings, from society by force of law might initially have the desired effect, but for me that isn't really the point or a positive thing in the long term.

Censorship where the protection of the victim is paramount, like child pornography, is another matter. This is the instance where owning material which contains an illegal act should be illegal in itself. But yes, as you say, the link ought to be pretty clear.

Hm, there, we seem to have debated to a conclusion I'm happy with anyway, heh.

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Originally Posted by Syme

It's okay to censor material that you consider "well beyond reasonable distaste"???

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Well yes, we already do this. I know it's true in Australia and I'm pretty sure that it applies in the U.S. too.

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Originally Posted by MrShrike

Well yes, we already do this. I know it's true in Australia and I'm pretty sure that it applies in the U.S. too.

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Well, just because it's a policy in many countries does not necessarily make it the correct course of action, no?

You're quite right, of course.

My point should have been that in those countries, it's generally considered acceptable to censor some material and this is apparently not violating any enshrined legal right or precedent.

So whether it is 'correct' the answer is not necessarily, but whether it is 'ok' the answer is apparently so. And that makes a powerful argument to support it being 'right' (although not a sufficient one in itself).

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Originally Posted by MrShrike

So whether it is 'correct' the answer is not necessarily, but whether it is 'ok' the answer is apparently so. And that makes a powerful argument to support it being 'right' (although not a sufficient one in itself).

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:confused: I don't see how the fact that some censorship is legal in some places makes any argument whatsoever in support of censorship being "right". To me, there's no relationship at all. Why do you think that legality is a powerful argument in support of rightness?

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Originally Posted by Syme

:confused: I don't see how the fact that some censorship is legal in some places makes any argument whatsoever in support of censorship being "right". To me, there's no relationship at all. Why do you think that legality is a powerful argument in support of rightness?

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Whilst I agree that it is faulty reasoning, it is common for people to presume that that which is in place, is deemed acceptable, or constitutes "normal" must have merit or validity in order to be that way.
That's when you hit 'em with the slave trade and the holocaust.

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Originally Posted by Syme

:confused: I don't see how the fact that some censorship is legal in some places makes any argument whatsoever in support of censorship being "right". To me, there's no relationship at all. Why do you think that legality is a powerful argument in support of rightness?

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Well of course the fact that a thing is legal in some places does not an argument make. Because that argument would be bereft of the the context of the specific places and the circumstances which lend that argument credence.

To illustrate my point, consider this. Do you:
a) Accept the Right to freedom of speech, as that protection is circumscribed in the U.S. constitution, to be just and essentially congruent and consistent with a real right to freedom of speech?
AND
b) Believe that the actual censorship of, for instance, paedophilic materials etc, which occurs in the U.S. is not inconsistent with this protection?

If so, then although the actual justification for this censorship lay beyond the scope of a) and b), with the outlined context we can fairly claim without further argument that there is a demonstrated consistency and precedent in the United States for the just (with respect to the protection of freedom of speech) censorship of distasteful materials.

We can obviously build up this argument further in other contexts, and also taking to account the nature of the U.S. legislative, social and legal circumstances, and therefrom construct a powerful argument that says, in the U.S. for instance, where there is a demonstrated record of generally consistent and rightful censorship of certain materials, that any given case of long standing censorship is also likely rightful, and also consistent with the U.S. constitutional right to freedom of speech (assuming again that you support the fundamental thrust of this protection).

Again, I restate make my earlier point that is a powerful argument in favour, but I don't claim that it is a sufficient argument in itself.