Supreme Court Ruling on 'Informal Censorship' Ignored 60 Years Later

Two years after the U.S. Senate held hearings on the threat that comic books purportedly posed to American youth, a Rhode Island commission reported its findings on the subject to the state legislature. "After months of study of this demoralizing material, it seems to us that what's at stake here is the decency of society," the 1956 report said. "The issue is not censorship but one of self-defense." Although "we can do little other than urge the publishers or producers to clean house," the commission said, "there is a definite responsibility on the distributor and retailer alike to avoid feeding our children a constant diet of crime, horror, sex, violence and depravity." The report recommended a ban on the sale of such material to minors and the appointment of "a permanent Commission" to "educate the public concerning such publications." State legislators promptly took up the second suggestion, creating the Rhode Island Commission to Encourage Morality in Youth two months later. The original five members, appointed by Democratic Gov. Dennis Roberts, included a Catholic priest, an Episcopalian minister, an Orthodox rabbi, and a retired librarian. The chairman was Joseph A. Sullivan, a Newport hardware store owner who had served on the comic book commission. The new commission was supposed to "educate the public concerning any book, picture, pamphlet, ballad, printed paper or other thing containing obscene, indecent or impure language." It was also supposed to "investigate" whether any such material violated state law and "recommend the prosecution of all violations." If a majority of the commission agreed that a particular publication was "completely objectionable," it would notify distributors of that determination. "The Chiefs of Police have been given the names of the aforementioned magazines with the order that they are not to be sold, distributed or displayed to youths under eighteen years of age," said a typical letter from Albert J. McAloon, the commission's executive secretary. "The Attorney General will act for us in case of non-compliance. The Commissioners trust that you will cooperate with this agency in their work." The commission had no authority to issue any such "order" and no enforcement powers. And contrary to the language that McAloon initially used, Rhode Island's attorney general was under no obligation to pursue any charges the commission suggested, which would be valid only if a book or magazine qualified as "obscene" (not merely "objectionable") under state law. Acknowledging that point, the commission revised its notices to say "cooperative action will eliminate the necessity of our recommending prosecution to the Attorney General's department." The U.S Supreme Court nevertheless concluded that the commission's practices were inconsistent with the First Amendment. The Court's 1963 ruling in Bantam Books v. Sullivan is freshly relevant in light of recent efforts to restrict speech through government intimidation that falls short of legal prohibition or punishment. When the Biden administration sought to curtail "misinformation" on social media platforms, it emulated Rhode Island's morality commission by approaching intermediaries rather than the speakers themselves and by deploying pressure rather than explicit threats. So did a New York regulator when she urged insurers and banks to think twice about dealing with the National Rifle Association (NRA). An Illinois sheriff followed the same playbook when he discouraged credit card companies from facilitating the sale of ads on disfavored websites. Federal courts deemed all those interventions unconstitutional. President Donald Trump's attempts to influence TV programming seem like an even easier call, since both the president and the man he appointed to run the Federal Communications Commission (FCC) have suggested that recalcitrant stations could lose their broadcast licenses. Along similar lines, the Federal Trade Commission (FTC) has wielded its regulatory authority against NewsGuard, a company that assesses the transparency and credibility of online news sources for readers and advertisers. A lawsuit that NewsGuard filed against the FTC in February argues that the commission, whose chairman views the company's ratings as biased against conservative outlets, has violated the First Amendment by making intrusive and burdensome demands for information without a statutory justification and by discouraging advertisers from using the service. Such "jawboning" aims to bully people into changing their behavior, accomplishing a goal that the government could not directly mandate. Bantam Books held that censorial pressure by a government agency, even one with no power to enforce its will, can be unconstitutional if it is apt to discourage people from exercising their First Amendment rights. When suggestions are tantamount to commands, they cross the constitutional line between persuasion and coercion. Theoretically, Sullivan's commission had a lot on its plate. It was charged with "investigating situations which may cause, be responsible for or give rise to undesirable behavior of juveniles." Based on that research, it was supposed to "educate the public as to these causes" and "recommend legislation, prosecution and/or treatment which would ameliorate or eliminate said causes." Consistent with that broad mandate, the commission occasionally discussed the dangers posed by drive-ins, drinking, and risqué movies such as the 1959 French version of Dangerous Liaisons. It offered a recommended reading list, sent speakers to cities across the state, and contemplated promoting "morality in youth" through public service announcements. But the panel focused mainly on identifying books and magazines that it deemed unfit for sale to minors. The year after the commission was born, the U.S. Supreme Court issued two rulings that would ultimately doom such efforts to police the sale of "objectionable" literature. One decision recognized the right of adults to buy books and magazines that might not be suitable for children, while the other recognized limits on that right. In Butler v. Michigan, the justices unanimously rejected a state law that banned distribution of material "manifestly tending to the corruption of the morals of youth" or "tending to incite minors to violent or depraved or immoral acts." That law, Justice Felix Frankfurter wrote, was "not reasonably restricted to the evil with which it is said to deal." Its effect, he said, was to "reduce the adult population of Michigan to reading only what is fit for children," which was unacceptable under the First Amendment. A few months later in Roth v. United States, a six-justice majority held that "obscenity is not within the area of constitutionally protected speech or press." But Roth defined obscenity more narrowly than Rhode Island had. The question, the justices said, was whether "the average person, applying contemporary community standards," would conclude that "the dominant theme of the material, taken as a whole, appeals to prurient interest." After those decisions, Rhode Island Superior Court Judge Eugene L. Jalbert ruled that the state's obscenity law was unconstitutional because it defined the category to include material "manifestly tending to the corruption of the morals of youth," which was illegal to sell even to adults. In 1959, the state legislature amended the law to excise that phrase, leaving a definition that tracked the Roth test. In September 1957, the morality commission adopted a "code for judging" that said material "can be considered contrary to Rhode Island law" when "the dominant theme, taken in its entirety, according to average community standards, appeals to prurient interests." But it added half a dozen additional considerations that went far beyond that definition. A book or magazine might be "objectionable," for example, if it featured "female or male form(s) posed in [an] erotic manner" or "dressed to stimulate sexual interests illicitly." The code also frowned on "lewd, salacious dialogue, drawings, prints, pictures, stills, or movies"; "illicit sex relations made attractive"; "abnormal sex actions drawn or pictured attractively"; and "seduction or rape depicted or described favorably." Other red flags included "depiction of sadistic crimes" and "excessive description of cruel behavior or punishment." Also suspect: "marriage ridiculed," "police officials demeaned constantly," and "concepts of justice and honor perverted either in stories or illustrations." In 1957, the commission's first full year of operation, it deemed 50 magazines "objectionable for youths under 18." These were typically "girly" magazines such as Cabaret, Gent, and Modern Man, which featured pictures of nude or scantily clad women along with articles. The commission also identified four "objectionable" books. One of the disfavored novels was Dark Quarters, a titillating tale of prostitution that fit into a category that collectors would later call "sleaze" paperbacks. But another blacklisted book was Peyton Place, a mainstream 1956 novel by Grace Metalious that became a big hit, remaining on the New York Times bestseller list for more than a year. Metalious published a sequel, Return to Peyton Place, three years later. The books inspired multiple movies and TV shows, including a prime-time drama that ran on ABC from 1964 to 1969. Peyton Place, which is set in the 1930s and '40s, "lifts the lid off" a fictional small town in New Hampshire. It includes a few sex scenes (mild by current standards) and features controversial themes such as adultery, incest, and abortion. But it is not pornography by any stretch of the imagination, and it did not seem to fit the definition of obscenity that the Supreme Court had established in Roth. Sullivan refused to identify the other two books deemed "objectionable" in 1957 because "he did not feel the commission's goal of fostering the welfare of youth would be served by public disclosure of the book titles," as the Newport Daily News put it. Sullivan evidently worried that teenagers would be especially keen to read books that the commission had blacklisted. The commission ostensibly was not trying to interfere with adults' right to read material it judged "objectionable." But in practice, that is what happened. After the commission blacklisted Cabaret, Gent, and Modern Man, for example, Newport police raided a local newsstand and seized all 30 copies of those three publications, which they locked in a jail cell as if the magazines were dangerous criminals. In 1959, Rhode Island Attorney General J. Joseph Nugent sought injunctions against the sale of three men's magazines and two paperback novels that the commission had flagged. After the commission declared Peyton Place "objectionable," Newport police charged Henry B. Settle Jr., a local book wholesaler and retailer, with committing a crime by selling the novel to a 17-year-old boy. Although the charge specifically involved selling Peyton Place to a minor, the judge read the book and deemed it obscene under the Roth test, meaning it was beyond the pale even for adults. "We're not a goody-goody group," Sullivan insisted in a 1957 interview with the Newport Daily News. "We don't believe in book burning. We're absolutely for the freedom of the press and all the liberties. Some of this stuff is just outright filth." The commission's activities provoked criticism from the beginning. From July 1957 through December 1961, The Providence Journal ran a dozen editorials arguing that "blacklisting books is dangerous and self-defeating," that "censorship only serves to advertise bad literature," that "the youth commission ignores due process of law," and that "the morality unit" had deployed "shameful tactics" against officials who questioned its agenda. In 1958, several state legislators complained that the commission had adopted an "especially negative approach" to its mission, "apparently concerned exclusively with censorship of certain books and magazines." The following year, Sullivan praised the police chiefs of Warwick and North Providence for pressuring book dealers to stop selling D.H. Lawrence's 1928 novel Lady Chatterley's Lover. The American Civil Liberties Union's Rhode Island chapter noted that the cops and the commission were "using the prestige of their public position to reach ends without submitting themselves to due process of law or to a proper judicial determination." The most notable critic of the commission was a member of it. The Rev. Howard C. Olsen, rector of St. Barnabas Episcopal Church in Warwick, voted against the 1957 designation of Peyton Place as "objectionable" and began publicly arguing that his colleagues' understanding of their mission posed a threat to civil liberties. "Censorship in general is a prelude to the downfall of democracy," Olsen warned in 1958, noting that the commission's blacklisting had affected adults as well as minors. "There is a difference between what we preach and what we try to enforce by civil law," he said, adding that "censorship for the young is primarily up to parents." The commission's letters to book and magazine wholesalers had a predictably chilling effect on sales of the targeted titles, since the distributors were keen to avoid legal trouble. Bantam Books and three other New York book publishers emphasized that point when they challenged the commission's practices in Rhode Island Superior Court. "There is no question that the activities of the commission have resulted in the suppression of the sale and circulation of books without any judicial determination as to whether or not they are obscene," Judge William M. Mackenzie agreed in a February 1961 ruling. "These notices with their implicit threats of criminal prosecution are clear violations of the constitutional provisions guaranteeing freedom of the press." In effect, Mackenzie said, the state had appointed Sullivan et al. as "censors," giving them "the power to determine which books and magazines will be distributed and sold in Rhode Island." The Rhode Island Supreme Court disagreed. "The commission cannot lawfully order anyone to comply with its conclusions regarding the objectionable nature of a publication which it has officially investigated," the court noted 10 months later. The commissioners "were only seeking and received the voluntary cooperation of petitioners' distributor," it said. "He was free to disregard their request for cooperation." And if he did so, he had no reason to fear prosecution as long as "the books in question were not obscene." What about the "implicit threats" that troubled Mackenzie? "The mere fact that the commission may recommend prosecution does not alter the case," the Rhode Island Supreme Court said. "They cannot order prosecution; that judgment is solely with the attorney general. Any unofficial group may do as much in this respect as the commission." The U.S. Supreme Court saw the situation differently. "It would be naïve to credit the state's assertion that these blacklists are in the nature of mere legal advice," Justice William J. Brennan wrote for the majority in Bantam Books v. Sullivan, "when they plainly serve as instruments of regulation independent of the laws against obscenity." Brennan quoted Mackenzie's findings and noted Nugent's concession that "the books listed in the notices included several that were not obscene within this Court's definition of the term." Brennan rejected as "untenable" the argument that the commission "does not regulate or suppress obscenity but simply exhorts booksellers and advises them of their legal rights." He conceded that the commission's power was "limited to informal sanctions—the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation." But "the record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed 'objectionable' and succeeded in its aim," he said. "We are not the first court to look through forms to the substance and recognize that informal censorship may sufficiently inhibit the circulation of publications to warrant injunctive relief." The commission's letters to distributors, Brennan noted, were "phrased virtually as orders," were "reasonably understood to be such," and were "invariably followed up by police visitations." Although the book publishers' distributor "was 'free' to ignore the Commission's notices, in the sense that his refusal to 'cooperate' would have violated no law," his compliance was "not voluntary" because "people do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around." The commission's activities "were performed under color of state law and so constituted acts of the State within the meaning of the Fourteenth Amendment," Brennan wrote. But its "system of informal censorship" fell "far short of the constitutional requirements" for "governmental regulation of obscenity." About a year after that decision, Republican Gov. John Chafee signed a bill that officially abolished the Rhode Island Commission to Encourage Morality in Youth. But the commission's legal legacy remains relevant whenever government officials engage in "jawboning," which Cato Institute policy analyst Will Duffield defines as "the use of official speech to inappropriately compel private action." Jawboning "occurs when a government official threatens to use his or her power—be it the power to prosecute, regulate, or legislate—to compel someone to take actions that the state official cannot," Duffield writes. "Jawboning is dangerous because it allows government officials to assume powers not granted to them by law." As Duffield notes, the Biden administration's efforts to suppress "misinformation" during the COVID-19 pandemic featured "traditional elements of jawboning." That initiative, like the Rhode Island youth commission's activities, included public criticism, behind-the-scenes hectoring, and veiled threats. In July 2021, Surgeon General Vivek Murthy issued an advisory calling for a "whole-of-society" effort to combat the "urgent threat to public health" posed by "health misinformation," which he said might require "legal and regulatory measures." The next day, President Joe Biden accused social media platforms of "killing people" by tolerating posts that might discourage vaccination. "Facebook needs to move more quickly to remove harmful violative posts," White House press secretary Jen Psaki said around the same time. Because "we're dealing with a life-or-death issue here," she explained, "everybody has a role to play in making sure there's accurate information." Toward that end, social media platforms "should be held accountable," White House Communications Director Kate Bedingfield said, raising the possibility of expanding their civil liability for user-posted content. Psaki noted that the president also "supports better privacy protections and a robust antitrust program." She said that right after declaring that "the major platforms have a responsibility related to the health and safety of all Americans to stop amplifying untrustworthy content, disinformation, and misinformation." In private, meanwhile, federal officials were pressuring social media companies to remove or downgrade content deemed dangerous to public health and banish the users responsible for it. They alluded to the president's keen interest in the issue and suggested the administration would take unspecified action if the platforms failed to fall in line. The responses from the platforms, including changes to their moderation policies and practices, showed they were keen to assuage the president's anger by addressing his concerns. Meta CEO Mark Zuckerberg would later acknowledge that Facebook had caved to official pressure. "I bel