[Adapted from George Anastaplo, The Constitutionalist: Notes On the First Amendment (Southern Methodist University Press, 1971), pages 680-81, note 18.]
The censor can suppress on the basis of suspicion alone, to say nothing of whim. But the prosecutor of allegedly criminal writing must rely, if due process of law is at all respected, on more than mere suspicion to sustain his burden of proof. See Leo Strauss, Persecution and the Art of Writing (Glencoe, Ill.: Free Press, 1952), pp. 24-26. One finds in Mr. Strauss’s discussion the usually unarticulated premises of the principal argument against “previous restraints.” See chap. 5, nn. 90, 106, above. See, also, chap 5, n. 10, chap. 6, n. 26, above.
I had occasion, during a visit in the Summer of 1967 in Athens with Helen Vlachou (the Greek publisher who had refused to publish her conservative newspapers under the Colonels’ censorship), to prepare at her request the following memorandum:
Anyone familiar with the Anglo-American tradition of “liberty of the press” appreciates the importance for friends of liberty of an insistence upon “no previous restraints.” That is, the effort in the 18th and 19th Centuries to establish and secure the liberty of the press was, in large part, an effort to protect the right of anyone to publish whatever he chose without any prior control by government of the contents of such publication. It was accepted that there could be, when something was published contrary to the law of the time or disliked by the government of the day, prosecution of the offending publisher. But it was nevertheless thought that such prosecution was not as destructive of the common good or as offensive to personal dignity as prior review by the government of the contents of publication. Even so, some publishers have always preferred the safety of censorship to the risk of undertaking the obligation of deciding in each case what could be responsibly and safely published.
What is or should be prosecuted after publication depends on particular circumstances, both social and personal. It should be remembered that the censor’s prior restraint may be completely arbitrary and without any challenge, while the punishment for publication has at least the safeguard (except in the most oppressive regimes) of some judicial process in open court. It should be remembered as well that self-regulation recognizes the dignity and sense of responsibility of the publisher.
In the best of all worlds, there would be neither censorship (previous restraint) nor any punishment for honest publication. But it is certaintly important that there at least be no censorship, leaving the publisher free to run the risks of honest publication.
It is significant that these observations, drawing on the centuries-old Atlantic tradition, made sense to Mrs. Vlachou, who had been obliged to work out similar arguments that summer on the shores of the Mediterranean. See chap. 8, n. 51, below, for a similar argument alluded to by Justice Frankfurter. Mrs. Vlachou was arrested shortly after our meeting. Her account of her adventures is recorded in House Arrest (Boston: Gambit, 1970), which I reviewed for the Chicago Sun-Times, June 24, 1970, p. 47. See chap. 6, n. 1, above. I included in my review the following observations which, with appropriate adjustments to our circumstances, should be taken to heart as well by American conservatives and liberals alike:
[Mrs. Vlachou] has, among other things, a gift for the apt image, as is indicated by her observation that the Colonels have “hijacked the country,” a seizure made possible by “the arms NATO had confided to them to protect Greece from real danger.” This hijacking, it must be added, was also made possible by the imprudent feuding from 1963 to 1967 of the politicians, press and Palace of Greece. What makes Greece both exciting and vulnerable is the existence there of a sense of self-importance: each Greek is prepared to lead his country to glory; few are prepared to submerge themselves (except in the face of foreign invasion) to a common purpose. Liberals conveniently detected such an invasion in the maneuverings in Athens of the American C.I.A. Conservatives were more effective in conjuring up foreign threats, partly because of the distorting legacy in Greece of a cruel civil war a generation ago: they could, Mrs. Vlachou admits, publish “whipped-up warnings of ‘Communist danger’—always a useful pre-election vote winner for the parties of the right, in which we [her newspaper] had also indulged.” That is, she seems to recognize now the irresponsibility of such thoughtlessly partisan tactics. She has yet to recognize in print the extent to which Greek liberals feared and resented (with some justification) the oppressiveness of the police, particularly outside Athens, an oppressiveness which Vassilis Vassilikos portrays so well in his novel, Z. But there were at least available in the world of Z unfettered journalists and jurists—unlike conditions in Greece today. Traditional political rivals in Greece do concede these days that they have much more in common with one another than any of them has with the Colonels. However responsible Mrs. Vlachou may have been in contributing to the political paranoia and the self-righteousness of the Colonels (they were among her most devoted readers), she was perceptive enough to see that such upstart extremists could not be the saviours of Greece—and she was courageous enough, while others preferred to see in the Colonels a useful solution to a disruptive constitutional crisis, immediately to declare herself in opposition to them….
(See chap. 5, n. 124, above, for my review of a book by one of Mrs. Vlachou’s political rivals, Andreas Papandreou.)
What may be done to suppress suspect doctrines when legal procedure need not be relied upon and when the authorities have access to sanctions that touch the souls of men is suggested by this pronouncement in 1276 of the bishop of Paris:
We have received frequent reports… to the effect that some students of the arts in Paris are exceeding the boundaries of their own faculty and are presuming to treat and discuss, as if they were debatable in the schools, certain obvious and loathsome errors…. These students are not hearkening to the admonition of Gregory, “Let him who would speak wisely exercise great care, lest by his speech he disrupt the unity of his listeners,” particularly when in support of the aforesaid errors they adduce pagan writings that—shame on their ignorance—they assert to be so convincing that they do not know how to answer them…. We excommunicate all those who shall have taught the said errors or any one of them, or shall have dared in any way to defend or uphold them, or even to listen to them, unless they choose to reveal themselves to us or to the chancery of Paris within seven days; in addition to which we shall proceed against them by inflicting such other penalties as the law requires according to the nature of the offense. [Lerner and Mahdi, Mediveal Political Philosophy, p. 337]
See chap 7, n. 120, above, chap. 9, n. 7, below.