Can You Stand Another “Re-run”?

The current wave of book banning efforts I referenced a few days ago reminded me of an essay I wrote about the importance of intellectual freedom some twenty-five years ago, for an ALA publication. I dug it out, and decided the observations were still valid–and, unfortunately, even more relevant. So– with apologies for both the length and self-citation– I’m sharing it.


Not too long ago, I had a conversation with a librarian involved professionally with issues of intellectual freedom. “Sometimes,” she said, “I get so tired of it. I wonder why I continue to fight.” I’ve thought about that conversation several times; if I could do an instant replay, I think I would tell her that I know why she keeps at it. It’s because it is so important.
I spent six years as Executive Director of the Indiana affiliate of the American Civil Liberties Union, and of all the lessons I learned during that time, the most profound was this: the future of western liberal democracy rests on the preservation of intellectual freedom.
If that statement seems extravagant, consider both the ideological basis of liberal democracy and the nature of contemporary threats to that tradition.
Our national history would have been impossible without the Enlightenment concept of the individual as a rights-bearing, autonomous being. That concept is integral to our legal system; it is the foundation upon which our forbears erected the Bill of Rights. The Founders envisioned the good society as one composed of morally independent citizens whose rights in certain important circumstances “trumped” both the dictates of the state and the desires of the majority.
Current assaults on that worldview come primarily, although certainly not exclusively, from communitarians of both left and right. Michael Sandel, Mary Ann Glendon and others complain that the American emphasis on individual rights has gone too far, that it is time to readjust the balance between individual liberty and the “common good.” The “common good” is presumably to be defined collectively; that is, by the majority.
There is enormous appeal to this argument. In a world that seems increasingly complex, impersonal, and litigious, a world over which individuals have less and less control, the notion of “community,” like “family,” offers nourishment and empowerment. Who does not long, in some part of her psyche, for a warm family, friendly neighborhood and supportive tribe, where one is valued and/or unconditionally accepted, and where everyone shares the same life goals and values? Freud suggested that the need to lose oneself in a collective identity is the most ancient, persistent and universal force operating on the human species. The problem, of course, is that majorities can be every bit as tyrannical as solitary despots, and there is no guarantee that my family’s values will be the ones that prevail, or that my tribes’ folkways will be the ones that are followed. The fundamental issue in every society is where to strike the balance between human liberty and communal norms. Ultimately, the debate comes down to a conflict between libertarian and collectivist visions of the good life.
In this war over competing worldviews, intellectual freedom is the battlefront. Discussions of the First Amendment often proceed as if the expressive freedom provisions are separate from the religious liberty clauses. They aren’t. In fact, the First Amendment rests upon a magnificent unifying premise: the integrity and inviolability of the individual conscience. The First Amendment is really an integrated whole, protecting our individual rights to receive and disseminate information and ideas, to consider arguments and theories, to form our own beliefs and craft our own consciences. It answers the fundamental social question– who shall decide? — by vesting that authority in each individual, subject to and consistent with the equal rights of others.
Our whole experiment with democratic governance rests on that foundation. As Alexander Mieklejohn famously observed, a nation that is afraid of an idea–any idea–is unfit for self-government. Implicit in the First Amendment is the legal system’s concept of personal responsibility, the University’s commitment to academic freedom, the moral authority of the clergy, the independence of the media, and the legitimacy of the political process.
Those who oppose free expression rarely, if ever, see themselves in opposition to the western liberal democratic tradition. Most of the people who want to ban the book or painting, who want to protect the flag or the Virgin Mary from desecration, are simply acting on their belief in the nature of the public good. Censors see unrestrained freedom as a threat to the social fabric, while civil libertarians believe the greater danger consists in empowering the state to suppress “dangerous” or “offensive” ideas. Censors see no reason to protect expression of low value–no point in protecting the marketplace for the exchange of shoddy goods. They have enormous difficulty understanding the difference between protection of the principle of free speech and an implicit endorsement of the offensive material at hand. And they have little or no appreciation for the argument that once one hands over to the state the authority to decide which ideas have value, no ideas are safe.
I spent my years at the ACLU battling the usual, recurring attempts to control what others might read, hear or download. I attended a public meeting in Valparaiso, Indiana, where an angry proponent of an ordinance to “clean up” local video stores called me “a whore.” I was accused of abetting racism for upholding the right of the KKK to demonstrate at the Statehouse. I was criticized for failure to care about children when I objected to a proposal restricting minors’ access to library materials. In each of these cases, and dozens of others, the people who wanted to suppress materials generally had the best of motives: they wanted to protect others from ideas they believed to be dangerous. To them, I appeared oblivious to the potential for evil. At best, they considered me a naïve First Amendment “purist;” at worst, a moral degenerate.
My introduction to the politics of free speech really came several years before my stint at the ACLU, when I was retained as local counsel to the plaintiffs in American Booksellers v. Hudnut. The case involved a challenge to an ordinance drafted by Catherine MacKinnon, a law professor, and Andrea Dworkin, a feminist author. Both are well known crusaders against pornography, which they define quite differently than the law defines obscenity, and which they argue is more harmful to women than to men. Their ordinance attempted to define as action (rather than expression) sexually explicit materials depicting the “subordination of women.” Such “action” was then treated for legal purposes as sex discrimination. (“When I use a word,” said Humpty Dumpty, “it means exactly what I say it means!”) MacKinnon and Dworkin had shopped their proposal around the country without much success before they found eager proponents in Indianapolis.
While the Courts would make short work of the ordinance, the politics of its passage was an eye-opening experience. Bill Hudnut was, and remains, a close personal friend; I had been the Corporation Counsel (chief lawyer) in his administration. To this day, despite lengthy conversations, he does not see the implications of the ordinance he signed. Bill had been an active Presbyterian minister before assuming office, and simply was appalled by materials that he felt degraded women. When MacKinnon and Dworkin enlisted a local female Councilor on behalf of their pet project to “protect” women, he was supportive. The Councilor has not been identified with women’s causes either before or after her sponsorship of the ordinance. She has, however, been supportive of efforts to restrict children’s access to videos in the public libraries, and has generally been an ally of the religious right. Her alliance with MacKinnon and Dworkin, widely considered to be “radical feminists,” was surreal.
On the evening the vote was taken, busloads of people from fundamentalist churches filled the Council chambers. To the eternal credit of Indianapolis’ women’s organizations, there was no support from local feminists. Only three people had been given permission to speak against passage–me, as a courtesy shown to a former member of the administration; Bill Marsh, a professor of Constitutional law who was then Vice-President of Indiana’s ACLU; and Sam Jones, the Executive Director of the Urban League. Even Councilors who had great qualms about the ordinance were unwilling to stand against the sea of faces from area churches. (The trouble with representative government, as a friend once bitterly remarked, is that it is representative.) One after another, uncomfortable Councilors rose to “explain” their votes; my favorite came from a longtime friend, who said that —while he had “great respect for Mrs. Kennedy’s legal opinion”–he wanted the record to show that he was “against pornography.” The crowd cheered approvingly.
Most of those who voted for the ordinance knew it stood virtually no chance in court. They were willing to spend some tax dollars to defend it, in order to avoid the pain of opposing the righteous folks who had taken the time and trouble to attend the meeting. And the courts did as expected; Judge Sarah Evans Barker issued an eloquent, ringing endorsement of the principles of free speech in her District Court opinion striking down the measure. The Seventh Circuit and Supreme Court each affirmed, and the case has since become a staple in courses on Free Speech and Constitutional Law.
In many ways, American Booksellers v. Hudnut is a perfect example of what the Founders feared when they warned of “the tyranny of the majority” and the need to guard against popular passions. The majority of citizens saw the debate in very simple terms, as did my Councilor friend: one is either for or against “pornography.” Quibbles about what pornography is, concerns about vagueness or over-breadth, were dismissed as lawyer weaseling; like Potter Stewart, they might not be able to define pornography, but they knew it when they saw it.
For civil libertarians, of course, the issue was very different. We were not arguing for the value of pornographic speech–although we were more open to the possibility that pornographic expression might, in fact, have some value. The issue was–and is–our right to decide for ourselves what books we shall read, what ideas we shall consider, what opinions we shall hold, free of government interference. Once the state asserts a prerogative to determine which ideas we may entertain, the balance has shifted from the right of the individual to the power of the government. At that point, citizens no longer have rights, but privileges that may be revoked whenever the political winds shift. For me as a civil libertarian, the issue is not which books I read; the issue is who decides which books I read?
The western democratic tradition literally depends upon the answer to that question.
Those of us who understand the nature of the debate over intellectual freedom in this way must contend with a formidable deficit in citizenship education. Both at the ACLU and at IUPUI, where I currently teach law and public policy, I have encountered widespread ignorance of the most basic elements of the American constitutional system. We desperately need to improve understanding of the theory of limited government and individual rights –not so that people will necessarily come to the same conclusions I reach, but so that we can at least argue about the same issues.
People try to remove materials from library shelves or the corner video store because they find the materials offensive. They try to prevent Klan marches because they disagree strongly with the hateful message of the Klan. Their arguments are against these particular ideas. They are not generally trying to strengthen the power of the state, nor intending to circumscribe the exercise of personal moral autonomy. Civil libertarians see those outcomes as inevitable consequences of censorship, however, and so those are the issues we address. In a very real sense, it is a case of culture warriors talking past each other.
People like my librarian friend, who see the fundamental relationship between the marketplace of ideas and self-government, who recognize the holistic nature of individual rights, simply must keep trying to make those connections visible to the general public. We must all work to raise the level of familiarity with the underlying principles of the Constitution and the Bill of Rights. We must agitate for more and better government instruction in our schools, and we must insist on more honest discourse from our political leaders and the media. We must constantly reinforce the lesson that the proper response to a bad message is not government censorship, but free citizens offering a better message.
Somehow, we must get the general public to understand that when we use the power of the state to decide what citizens may read or view, we aren’t censoring smut, or protecting children, or prohibiting blasphemy, or respecting the flag. We are undermining the values that lie at the very core of our national identity.


  1. Republicans are working ever-so-hard at destroying intellectual freedom, aren’t they? Why would they do that?

    (1) Their corporate/banking donors tell them to keep everyone as ignorant as possible.

    (2) These people aren’t very smart to begin with and fear anything intellectual. Marsha Blackburn of Tennessee comes to mind.

    (3) They totally succumbed to the cult mentality of a not-very-smart crook who knows that intellectual freedom exposes his life-long fraud.

    I suppose there are more things to list here, but since Republicans have proven for decades that they have no other agenda than serving the richest among us, it’s not worth any more electrons.

  2. Yesterday were closing arguments for a First Amendment case with SCOTUS. The Federal govt used the FBI and DHS to censor people on social media. It’s been said that it was primarily conservatives, but after reading Twitter Files, many of those censored were on the left and were printing the truth.

    The recent decision to ban TikTok also concerns censorship and the First Amendment rights of 170 million American users. Trump tried to ban it, but the courts overturned it.

    The Federal and State governments are trying to control the narrative. The spokespeople for the Biden administration are horrible liars, meaning they are not very good at lying. Nobody believes them. Sociopathic politicians have no problem lying (think Mike Pence), but people with a conscience are negatively impacted when lying.

    I would say that Sheila’s post is still relevant but has gotten much worse. Our government is trying to slap the left and the right with the term “extremists.” Therefore, they want to BAN or make ILLEGAL any extremists from public spaces. Europe is doing the same thing now that their governments are all led by right-wingers (NeoNazis).

    Our society is closing down because the oligarchs are losing control of the country and the narrative. We are entering a period of isolation because the old world order has collapsed. Fear and control have taken over. This is not a Republican problem. Democrats are assisting in closing it down because they are both part of the power structure. It’s bad under Biden but will close down rapidly under Trump.

  3. Todd. It is my understanding that the government has not asked to ban Til Tok. They have asked that it be under new ownership not controlled by the Chinese Communist Party. If this requirement is met, it will be free to operate.
    You say that nobody believes spokespeople for the Biden Administration. Here’s a news flash, Todd. You don’t speak for everybody. You don’t know what everybody else thinks. Here’s another news flash. Not all European governments are led by NeoNazis.
    You say that people with a conscience are negatively impacted when lying. Just think about it!

  4. Sharon watches too much propaganda news on her TV. You better hope Trump doesn’t win in November because the House just gave him the authority to ban any app or website owned by an “adversary.” He’ll be banning everything that he disagrees with.

    Also, if you noticed my post, Biden’s administration was sued for pressuring American-owned social media to censor users. He couldn’t censor TikTok users because ByteDance is operated out of China. The US wants to censor social media because independent journalists are destroying US propaganda and the spokespeople for the Biden administration. Turn off your TV and open an X account to educate yourself.

  5. Todd, how do you do that thing that you do? You know, twist things completely out of shape, again, and again?
    “The western democratic tradition literally depends upon the answer to that question,” is the core of the issue, indeed!
    Nationalism is not the same as patriotism, and Christian nationalism is massively unpatriotic, as would be any other form of religious nationalism.

  6. I took a course in Political Theory at IU many moons ago, and Sheila’s essay is the kind of stuff we were exposed to in the course of our study. One of the things I remember in re this course which was required for my minor was the professor himself. He was from Oklahoma, brilliant, paced the floor while lecturing without notes, and smoked cigarettes one after another while pacing. This was before cigarettes were suspects in lung cancer and Zippo lighters were still in vogue. He sounded much like Sheila’s effort republished here today, but all the foregoing is prelude. What I most recall from such exposure two periods each week was a big sign facing us from behind his lectern, i. e., NO SMOKING. BY ORDER OF THE FIRE MARSHAL. That told our class as much about his basic views as we gleaned from his lectures.

    No governing plan, from dictatorship to democracy, is perfect, and why? Because we are requiring an individual to give up his/her rights to post free-Enlightenment freedom in favor of some ill-defined common good to the supposed benefit of all when from all reasonable appearances such surrender only adds to the power base of those who call the shots, thus affirming Sheila’s basic premise that the state should not be in charge of ideas.

    I was as a Deputy Prosecutor in Marion County once tasked with prosecuting a clerk who was selling “dirty books and magazines” in downtown Indianapolis. I did not altogether believe in my mission but did my duty and secured a conviction after a five day jury trial. There was an appeal to the Indiana Supreme Court, of course, and I was asked by other lawyers while the appeal was pending what I thought the outcome of the appeal would be. I answered that I thought it would succeed.

    I was right. A part of me was pleased with the outcome. Freedom of the press is more important than a jury verdict – far more.

  7. Todd. Once again your “response” has nothing to do with what I criticized you for.

  8. Mitch, I agree that “Nationalism is not the same as patriotism, and Christian nationalism is massively unpatriotic, as would be any other form of religious nationalism.”
    I recommend The Life of an American Slave by Frederick Douglass. His Appendix contrasts the treatment of Blacks by “Christian” slaveholders (they put down the whip to pick up the Bible) with the Christianity modeled by Jesus. If you substitute “White Nationalists” for “1845 Christian slaveholders” it reads like today.

  9. Sheila,
    I remember reading about some of the incidents you referred to in your old article and thinking (at the time of the incidents) that you were acting as a “useful idiot” on behalf of those who wanted to destroy our country. It took me more than a few years to come to the realization that you were, in fact, sincerely defending the rights that our Constitution has granted us. You still are, and I sincerely thank you for your dedication to the cause.

  10. It seems like the politicians are trying keep the people unable to understand politics and the Constitution so they don’t understand when their representatives don’t understand it either.

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