Thursday, June 16, 2011
Robert A. Sedler, Wayne State University Law School, has published Self-Censorship and the First Amendment in volume 25 of the Notre Dame Journal of Law, Ethics and Public Policy (2011). Here is the abstract.
Self-censorship refers to the decision by an individual or group to refrain from speaking and to the decision by a media organization to refrain from publishing information. Whenever an individual or group or the media engages in self-censorship, the values of the First Amendment are compromised, because the public is denied information or the expression of ideas that the public would have received were it not for the self-censorship. It should not be surprising, therefore, that the principles, doctrines and precedents of what I have referred to as “the law of the First Amendment” are designed to prevent self-censorship due to the fear of governmental sanctions against expression. Self-censorship due to the fear of governmental sanctions against expression may be denominated “self-censorship bad.”
At the same time, the First Amendment also embodies a right to silence, and the right to remain silent is also a value of the First Amendment. The values embodied in the First Amendment right to silence support self-censorship in the sense that an individual or group may decide to refrain from speaking and the media may decide to refrain from publishing, because they believe that the public interest is better served by the decision to refrain from speaking than by the decision to speak and by the decision to refrain from publishing than by the decision to publish. This form of self-censorship may be denominated “self-censorship good.”
In this writing, we will first discuss “self-censorship bad.” Here we will discuss the principles, doctrines and precedents of the First Amendment that are designed to prevent self-censorship due to the fear of governmental sanctions against expression. We will see that in their totality, these principles, doctrines and precedents comprise a major part of the “law of the First Amendment,” and stand as a bulwark against “self-censorship bad.” We will then discuss “self-censorship good” in the context of media organizations exercising their editorial discretion to refuse to publish certain information. Here will use two examples. The first is the refusal of the media to identify victims of rape and other sexual offenses. The second is the refusal of the media to disclose certain information on ground that the disclosure of the information would cause serious harm to the national security. In this connection, we will review at length the process by which the media makes the decision to refuse to disclose information on national security grounds. We will conclude by relating “self-censorship bad” and “self-censorship good” to the values of the First Amendment and the function of the First Amendment in the Nation’s constitutional system.
Download the full text from SSRN at the link.