Introduction

It is an unfortunate sign of our ambiguous times that the First Amendment's free speech protection no longer commands universal support among progressive constitutional scholars and legal activists. The political and legal circles that only a decade ago could be counted upon

to defend First Amendment values are now increasingly willing to qualify their support for free speech, if not to abandon the cause altogether. Critical race theorists, feminists of the MacKinnon school and civic republicans have, each in their own ways, attacked the old-fashioned left-liberal fixation on the First Amendment and the quaint, if not antiquarian notions of intellectual freedom that the Amendment represents. Thus, old-line free speech litigation organizations such as the American Civil Liberties Union ("ACLU") have become the targets not just of conservative politicians, but also of the new progressives, who deride the ACLU for being "a handmaiden of the pornographers, the Nazis and the Ku Klux Klan"(1) because of its insistence on representing the free speech rights of those groups.

The anti-free-speech trend has advanced to the point that progressive critics of the First Amendment have begun to claim victory over relativistic liberalism. Richard Delgado announced not long ago that

the ground itself is shifting. The prevailing First Amendment

paradigm is undergoing a slow, inexorable transformation. We are

witnessing the arrival, nearly seventy years after its appearance in

other areas of law, of First Amendment Legal realism. The old,

formalist view of speech as a near-perfect instrument for testing

ideas and promoting social progress is passing into history.

Replacing it is a much more nuanced, skeptical, and realistic view

of what speech can do, one that looks to self- and class interest,

linguistic science, politics, and other tools of the realist approach

to understand how expression functions in our political system.(2)

Like most progressive opponents of a strong First Amendment, Delgado assures us that this new way of looking at free speech represents an evolutionary advance over the previous intellectual model. "We are losing our innocence about the First Amendment, Delgado writes, "but we will all be wiser, not to mention more humane, when that process is complete."(3)

First Amendment critics such as Delgado see a new era dawning, in which free speech will lose the aura it has developed over the years and will be put into proper perspective as merely one constitutional value among many other equally important values. The immediate consequence of this approach is that the First Amendment could be trumped by other values whenever the government could reasonably claim that speech must be suppressed in furtherance of some other important social goal. Unlike previous censorship regimes, which previous generations of political and legal progressives thought served the interests of wealth and power, this new, postmodern censorship is presented as serving goodness, equality and truth. The new critics proffer censorship with a human face.

Delgado is hardly alone in heralding this brave new First Amendment world. Variations of his position have become commonplace among progressive law professors and students, although not yet significantly among members of the practicing bar and judges. The incessant theoretical devaluation of the First Amendment by progressive scholars has put many of the remaining academic supporters of strong free speech protection on the defensive. For example, Kathleen Sullivan has recently attempted to defend First Amendment values against progressive attacks generated by what she terms the "free speech wars."(4) Sullivan rejects the prescription for more speech regulation, but gives considerable deference to the claims of those who propose to reduce significantly First Amendment protections. "The new speech regulators demand a response from those who would leave speech mostly deregulated@ and they deserve a response that goes beyond the rote and reflexive invocation of free speech as an article of faith."(5) Sullivan argues that the old defenses of free speech are no longer sufficient, and that new defenses must be devised "for those in my generation whose respect for the new speech regulators' insights does not extend to agreement with their proposed solutions."(6)

In this Article, I join Sullivan in rejecting the solutions of the postmodern censors. I will argue, however, that she has given the claims of the new regulators too much credit. The theoretical advances celebrated by Delgado and other progressive critics of the First Amendment are not really advances at all. They are simply refurbished versions of arguments used since the beginning of modern First Amendment jurisprudence to justify government authority to control the speech (and thought) of citizens. The fact that these arguments are now being used in the service of different social and political ends cannot cloak the fact that the underlying theories are the same ones that justified the prosecutions of antiwar protesters, socialists and anarchists in the early years of this century.(7) Moreover, despite the different objectives of the new censors, their reasons for supporting government control over speech are not significantly different from those of their reactionary predecessors. Both the new and the old censors fear political radicalism and its supposed attractiveness for the masses; both seek to implement an elitist system of value development, under which individuals will receive constant guidance from an enlightened government on the subject of public morality; and both insist that the principles of free speech should be treated as indistinguishable from the often dangerous or despicable principles of those who enjoy its protection. Thus, both the new and the old censors use prejudice against a practitioner of speech (communists, anarchists and conscientious objectors in the old days, "pornographers, the Nazis and the Ku Klux Klan"(8) today) to justify opposition to the principles that allow disfavored speakers to gain access to the public,s eyes and ears.

This Article assesses several major components of the "new" progressive theories of censorship and details the similarities between these new theories and earlier ones. The Article also addresses the obvious consequence of this analysis. Just as the new arguments for censorship track the old justifications, the old arguments against censorship -- tracing back to Milton, Mill, Holmes and Brandeis -- remain responsive to the flaws of any theoretical system in which government is empowered to regulate speech and thought.

This Article is structured around what Sullivan has identified as the three cornerstones of postmodern censorship theory. Thus, Part I is devoted to the postmodern theory of social constructionism, Part II addresses the postmodernists' rejection of the public/private distinction, and Part III discusses postmodern egalitarianism.(9) In each of these parts, I will address the corresponding arguments of three main branches of postmodern censorship theory: critical race theory, represented by Richard Delgado, Mari Matsuda and Charles Lawrence; civic republicanism, focusing especially on the work of Cass Sunstein; and the branch of feminism usually associated with the writings of Catharine MacKinnon.(10) Specific problems with the various forms of postmodern censorship theory will be detailed at length below, but the critique that follows is oriented around a consistent theme: The postmodern censorship theory offered by this new generation of politically progressive legal scholars is neither progressive nor, for that matter, even "postmodern." In the end, it is just censorship.

I. Postmodern Censorship and Social Construction

The social constructionist argument is perhaps the clearest thread linking the various groups proposing new theories to justify speech regulation. Some version of this motif is the centerpiece of critical race, civic republican and feminist treatments of free speech. Although each group emphasizes different factors, the central argument is the same: Everyone in society is "constructed" by his or her society; antisocial individual behavior will occur as a direct result of the socialization that an individual experiences in his or her everyday life; such behavior cannot effectively be controlled solely through the application of disincentives or postbehavior punishments for illegal action; therefore, factors contributing to individual socialization must be subject to governmental control in order for the government adequately to protect every citizen,s full participation in the society's social and political life.

The details emphasized by the different procensorship factions merely flesh out the central components of the argument by relating the claims concerning adverse socialization to the particular experiences of specific groups. These details bear out that the postmodern censors are true radicals in the sense that they define the world in a way that is contrary to the common understanding of those outside their ideological fold. The postmodern censors are also deeply conservative, however, in that they would reinstitute a degree of government control over speech and thought that has been unknown since World War II -- and they would do so precisely so that the government could mold political reality to its own liking. Thus, the instincts of the postmodern censors do not reflect the deeply antigovernment biases of the radical anarchists, conscientious objectors and antiwar (and thus necessarily antigovernment) left-wing radicals of the early twentieth century. Ironically, the new censors have instincts about speech and behavior that track the rigid, hierarchical and deeply reactionary predilections of the government that fought hard to silence earlier generations of radicals. Thus, the postmodern position on censorship is "radical" only in its deviation from what has become the constitutional norm, not in its alignment with earlier manifestations of the political left.

A. Constructing Evil: Racism

The postmodern censors believe that oppressive speech must be controlled by the government not only because antisocial speech creates the reality of oppression, but because antisocial speech is the oppressive reality in a more meaningful sense than the various physical manifestations of that oppression. The postmodernists view manifestations of oppression such as discrimination in housing or education as less intractable than the ideology of racism or sexism that provides the inspiration and justification for such discrimination. A prominent example of this approach is Professor Charles Lawrence's interpretation of Brown v. Board of Education.(11) Lawrence, a critical race theorist and a proponent of Stanford University's speech code, has written at length about his interpretation of Brown, which he interprets through the prism of social constructionism.

According to Lawrence, Brown is "[a] [c]ase [a]bout [r]egulating [r]acist [s]peech."(12) He argues that "[t]he key to this understanding of Brown is that the practice of segregation ... was speech.... Brown held that segregated schools were unconstitutional primarily because of the message segregation conveys -- the message that black children are an untouchable caste, unfit to be educated with white children."(13) Lawrence cites language in Chief justice Warren's Brown opinion concerning the stigma that segregation attached to black students in segregated schools: "To separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."(14) Lawrence argues that the Brown decision was concerned primarily with eliminating the stigmatizing message of racism that was conveyed by the system of segregated education. He then argues that since the Court itself removed racist messages (in the form of segregation) from the protection of the First Amendment, the Court should not stand in the way of other government efforts to eliminate similar racist messages in the form of private speech. He concludes that "Brown and the anti-discrimination law it spawned provide precedent for the position that the content regulation of racist speech is not only permissible but may be required by the Constitution in certain circumstances."(15)

The alternative, and far more common, explanation of Brown is that the Court held segregated public schools unconstitutional primarily because such schools provided black children with a measurably inferior education than that which they provided to white students. This interpretation maintains that the Court was concerned not so much with the message of segregation as with the mechanisms of segregation and the concrete effects such mechanisms had on the lives of black children. The actual holding of the case, after all, is that "[s]eparate educational facilities are inherently unequal."(16) According to this interpretation, the "feeling of inferiority"(17) to which Chief justice Warren referred is relevant in that it contributes in specific ways to the concrete reality of segregation, most directly by making it harder for black children to achieve the same level of educational attainment as the more privileged white children.(18) Under this interpretation, Brown was primarily directed at eliminating every manifestation of government-enforced educational, political and social ostracism; the Court assumed that eliminating these concrete effects would also diminish the force of the ideological racism that justified segregation.

Lawrence's primary focus on the message of racism, rather than racism's concrete manifestations, reflects his view that "all racist speech constructs the social reality that constrains the liberty of non-whites because of their race."(19) Contrary to the common interpretation of Brown, Lawrence argues that eliminating the physical manifestations of racism will be futile if the ideology of racism is not eradicated. He argues that in the absence of this broader attack, racism will continue to exert its overriding influence on the lives of those targeted by racism, in even more subtle and insidious ways than did the overt segregation addressed in Brown. Lawrence adopts the position of Professor Kendall Thomas that race is a social construction. Lawrence argues that race is "derived through a history of acted-upon ideology, and that the cultural meaning of race continues to be promulgated through millions of ongoing contemporaneous speech/acts."(20) One consequence of this ongoing social construction of race, according to Lawrence, is the perpetuation of an almost insuperable structural racism: "We simply do not see most racist conduct because we experience a world in which whites are supreme as simply `the world.'"(21) In Delgado's phrasing of the same point, "[i]ncessant depiction of a group as lazy, stupid, and hypersexual -- or ornamental for that matter -- constructs social reality so that members of that group are always one-down."(22)

Like other manifestations of the social constructionism argument, critical race theorists use social constructionism to attack the concept of a "marketplace of ideas," which they view as an indispensable element of any First Amendment jurisprudence that provides broad protection of free speech. The critique of the marketplace, metaphor offered by Lawrence and Delgado represents a view that is prevalent, if not universal, among critical race scholars. In sum, their argument is that the "marketplace of ideas, metaphor is an inappropriate guidepost for First Amendment jurisprudence because the intellectual "market" will never be free. The market is not free, the argument asserts, because all discussions about social or political policies will be carried out within what Delgado calls the "reigning paradigm, the set of meanings and conventions by which we construct and interpret reality.(23) Within this paradigm, "[s]omeone who speaks out against the racism of his or her day is seen as extreme, political, or incoherent."(24) Many potential "sellers" and "consumers" will be excluded from the marketplace altogether: "[C]ommunication is expensive, so the poor are often excluded; the dominant paradigm renders certain ideas unsayable or incomprehensible@ and our system of ideas and images constructs certain people so that they have little credibility in the eyes of listeners."(25) Thus, critical race theorists argue that the outcome of any competition among ideas is foreordained: The American marketplace of ideas was founded with the idea of the racial inferiority of non-whites as one of its chief commodities, and ever since the market opened, racism has remained its most active item in trade."(26)

Although this is not the place for a comprehensive defense of Holmes's metaphor, I believe that critical race theorists (and other postmodern censors) have greatly overestimated the significance of the metaphor in defining the rules of First Amendment jurisprudence, which treats speech as important in itself, regardless of the speech's market value or consumer popularity. Indeed, the postmodern censors have probably misconstrued the basic meaning of the marketplace-of-ideas concept.(27) For present purposes, however, Lawrence's and Delgado's arguments against the marketplace of ideas underscore how radically the postmodern censors would revamp not only First Amendment law, but also our most basic notions of citizenship in the American democratic state.

What most offends critical race theorists about the marketplace-of-ideas metaphor is its presumption that the intellectual "consumers, in the marketplace are free actors, capable of intelligently and fairly considering competing political ideas, policy proposals and value systems before forming conclusions of their own about the direction in which the country and its government should move. According to critical race theorists, such freedom is not possible because the "consumers" in the marketplace of ideas are so infused with the received values of a corrupt system that they cannot possibly exercise independent judgment about the ideas that come into the market. Most prejudice is unconscious, Lawrence notes, and "just as prejudice causes the governmental decisionmakers to misapprehend the costs and benefits of their actions, it also causes all of us to misapprehend the value of ideas in the market.... [W]hen an individual is unaware of his prejudice, neither reason nor moral persuasion will likely succeed."(28)

From the perspective of the critical race theorists, there is no easy way to solve this problem: the marketplace of ideas is irrevocably flawed so long as the participants in the market are indoctrinated by a racist culture. Thus, the psychology of the market participants must be changed before the marketplace can operate. Professor Mari Matsuda, another prominent critical race theorist, has provided one rationale for this response to the market distortion problem:

As we learn more about the compulsive/psychosocial aspects of

racism, we may come to see how allowing the racist speaker to fall

into an accelerating upward spiral of racist behavior is akin to

letting a disease go untreated. The paternalistic ring of the disease

model causes disease given our knowledge of the harm done under

that model to innocent nonconformists, the weak, the poor,

women, and children. On the other hand, extreme libertarian

individualism denies the racists the opportunity to know what life

might be like if their escalating racism were to be restrained.(29)

Although Matsuda is referring specifically to a racist speaker in this passage, it seems that the same "disease model" must be applied to everyone in society, given Matsuda's comment "that at some level, no matter how much both victims and well-meaning dominan-group members resist it, racial inferiority is planted in our minds as an idea that may hold some truth."(30) Like Matsuda, other critical race theorists heavily emphasize the distorting effects of unconscious racism. We are all infected, the infection badly clouds our judgment, and therefore, we must be cured of the disease that taints our political and social perspectives before being allowed to participate fully in our own self-governance.

Matsuda's emphasis on the need for an ideological "cure" for unconscious prejudice underscores the comprehensive nature of the proposals generated by critical race theorists in response to their views on social constructionism. Because of racist social conditioning, individuals are presently incapable of thinking for themselves about matters involving race. Thus, wholesale re-ducation of the populace is necessary before we can even begin to consider a system of unfettered free speech. When critical race theorists advocate government-enforced suppression of racist speech (a term that certainly includes overtly racist epithets, but as a matter of logical necessity also has to include many other forms of discourse that convey demeaning or unflattering messages about a racial group(31)), they are not merely seeking to protect the status and sensibilities of minority-group members who are the targets of that speech. Rather, they are also seeking to replace one "reigning paradigm" with another. They are seeking to reconfigure the now-flawed intellectual marketplace by excising from the market an entire set of ideas, so that those ideas cannot once again infect the citizenry with the disease of racism.

Thus, critical race theorists do not propose to eliminate the distortions they find in the marketplace, on the contrary, they propose to distort the market intentionally in a different way. One set of ideas will be favored over another, as critical race theorists argue is presently the case. But even accepting the critical race theorists, view that one particular set of ideas currently serves as a "reigning paradigm" governing society,(32) there is still a crucial difference between their proposed system and the one it would replace. Under the system proposed by critical race theorists, the new reigning paradigm would be enforceable through an entire set of sanctions not currently available to enforce ideological conformity. fines, civil damages and even jail sentences.(33) And of course, there is always the possibility that the critical race theorists' attacks on the First Amendment will be only partly successful. It does not take much imagination to conceive of the possibility that very different ideological forces could turn the critical race theorists, system to very different ends than Lawrence, Delgado and Matsuda would like. After the well-meaning critical race theorists have eliminated most or all constitutional restrictions on government regulation of speech, the predominant forces in the government could easily choose to use their new powers in ways that reinforce the very "reigning paradigm" that the critical race theorists now find so oppressive. I will return to these and other problems associated with the critical race theory approach to social constructionism after briefly reviewing two other similar postmodern censorship theories.

B. Constructing Evil: Sexism

The feminist version of the social construction argument contains most of the same elements that are at the heart of critical race theory. Like critical race theorists, feminists such as Catharine MacKinnon have argued for many years that pornography (defined to include expressive materials that are sexually demeaning to women, but not necessarily legally obscene(34)) has constructed, women in many negative ways, making it impossible for women to realize their full potential either as citizens or as happy and productive individuals. For MacKinnon, "pornography institutionalizes the sexuality of male supremacy, which fuses the erotization [sic] of dominance and submission with the social construction of male and female. Gender is sexual. Pornography constitutes the meaning of that sexuality. Men treat women as who they see women as being. Pornography constructs who that is."(35)

Pornography has been a central focus of MacKinnon's work because she seems to believe that pornography is the single most important defining characteristic of the modern female personality. She asserts flatly that "pornography constructs the social reality of gender" such that all women are "defined in pornographic terms."(36) Like critical race theorists, MacKinnon argues that society has managed to construct such an efficient and effective discriminatory structure that few people recognize the true nature of that system: "To the extent pornography succeeds in constructing social reality, it becomes invisible as harm."(37)

As with the critical race critique, MacKinnon's theory asserts that the products protected by the present system of free expression harm both the dominant speakers (men) and the victims who are targets of the discriminatory speech (women). MacKinnon sketches the harm done to men only briefly and this harm usually takes obvious forms, such as men's inability to relate to women.(38) in contrast, MacKinnon's description of the harms imposed by the present system on women is very detailed, graphic and (at least to an outsider's eye) oddly unflattering to the group of victims to which she offers her support. Throughout MacKinnon's writings, women are described as weak and as victimized by their own sexuality (that is, the sexuality constructed for them by male-dominated society). "Sexualized objectification is what defines women as sexual and as women under male supremacy."(39) According to MacKinnon, female sexual desire "is socially constructed as that by which we come to want our own self-annihilation."(40) She views other traits possessed by women in a similar light. For example, MacKinnon criticizes Carol Gilligan's celebration of women's care-giving tendencies,(41) and contends that "[f]or women to affirm difference, when difference means dominance, as it does with gender, means to affirm the qualities and characteristics of powerlessness."(42)

The feminist version of social constructionism is also like the critical race version in that the critique of reality -- and its prescription for future action -- goes beyond simply regulating the more extreme antisocial expression that is the immediate subject of most feminist and critical race writings. The image that MacKinnon uses repeatedly in her work is that of a film containing depictions of women being raped, beaten and killed,(43) and the overt intent of MacKinnon's writings is to eliminate what she sees as the widespread availability of this material. Yet, as one skeptic of the MacKinnon approach noted recently, this narrow focus detracts from the larger critique of society that is "unmodified" feminism's main point:

A common misreading of the feminist critique implicates only

manifestly coercive or violent pornography in the maintenance of

patriarchal subordination. In fact, the feminist critique is a good

deal more radical; it concerns the social construction of sexuality,

not violence, and a narrow focus on violent pornography trivializes

the feminists, point.(44)

Indeed, MacKinnon's critique is probably even more radical than this quote suggests, because to the extent that sexuality infuses every facet of a person's personality (as MacKinnon clearly believes), her perspective requires a radical transformation of human personality in its most basic respects.

There is little in the writings of MacKinnon or other feminists who take a similar position to indicate how such a radical transformation of personality is supposed to occur. But it is very clear that the first step in this radical transformation is the widespread use of coercive government power to eradicate speech that runs counter to the MacKinnonite perspective on issues of gender and sexuality. The First Amendment is not a barrier to the pervasive government control over expression that carries improper messages because, according to MacKinnon, "pornography is more act like than thoughtlike."(45) MacKinnon argues that speech is indistinguishable from the sorts of harmful physical action -- battery, rape, murder -- that the government has long controlled through the use of its various coercive tools. "In pornography, pictures and words are sex. At the same time, in the world pornography creates, sex is pictures and words. As sex becomes speech, speech becomes sex."(46) Note that her argument is not that the speech causes the act (although she believes that, too(47)); her argument is that the speech is the act -- and is therefore subject to regulation as such:

To express eroticism is to engage in eroticism, meaning to perform

a sex act. To say it is to do it, and to do it is to say it. It is also to

do the harm of it and to exacerbate harms surrounding it. In this

context, unrecognized by law, it is to practice sex inequality as well

as to express it.(48)

MacKinnon's argument, like that of critical race theorists, proceeds logically to a conclusion that is fundamentally at odds with the modern Western view of the proper relationship between a government and its citizens. The notion that "bad" speech "constructs" people in negative ways, and that this negative social construction is properly the concern of the government, leads necessarily to the corollary that the government is properly concerned with constructing, a society of good, people. Under this theory, one of the government's main tasks (assuming the government is controlled by a working majority of "good" officials who are themselves correctly constructed) is to create a citizenry in its own image. This is directly contrary to the relationship between citizens and the government that serves as the basis for modern democratic theory.

MacKinnon's equation of speech and action is the key to understanding how deeply her approach would alter the current law and the common understandings about democratic citizenship on which that law is based. At the simplest level, by equating speech and action, MacKinnon would have the government hold the speaker (or film director or writer) of antisocial ideas accountable for those ideas as if the speaker had acted on those ideas., a verbal depiction of a rape fantasy presumably would be punishable as rape. But the implications of MacKinnon's theory extend far beyond the pornography that is her immediate subject. The analysis also would hold speakers accountable for the negative consequences of a political or social perspective embodied in abstract or theoretical speech, as well as pornographic speech. MacKinnon comes close to saying this explicitly:

Together with all its material supports, authoritatively saying

someone is inferior is largely how structures of status and

differential treatment are demarcated and actualized. Words and images

are how people are placed in hierarchies, how social stratification

is made to seem inevitable and right, how feelings of inferiority and

superiority are engendered, and how indifference to violence

against those on the bottom is rationalized and normalized. Social

supremacy is made, inside and between people, through making

meanings. To unmake it, these meanings and their technologies

have to be unmade.(49)

Elsewhere, MacKinnon specifically suggests suppression (at least in an educational context) of "academic books purporting to document women's biological inferiority to men, or arguing that slavery of Africans should return, or that Fourteenth Amendment equality should be repealed, or that reports of rape are routinely fabricated."(50)

The suggestion that someone could be prohibited -- especially in a classroom setting -- from advocating the repeal of a constitutional amendment tells us how far MacKinnon diverges from the world of democratic constitutionalism in which we currently live. Given her position on social constructionism, however, this extreme stance is inevitable. Simply regulating the tawdry and quasi-underground market in pornography would not be sufficient to achieve MacKinnon's goal of eliminating all manifestations of social domination and the subordination of women. This larger goal can only be achieved if the government suppresses all expressive works that are viewed (in the eyes of a government official representing the views of those controlling the government) as contradicting the goals of equality and antisubordination. To permit such contrarian works would be to risk undermining the government's social construction of its citizens through the instilling of positive, egalitarian values.

This point serves as a natural bridge to the third example of postmodern censorship, civic republicanism, which is concerned primarily with the government's role in creating citizens that exhibit the proper characteristics for participating in a just society, in part through the suppression of bad, speech.

C. Constructing Virtue

Like feminist and critical race theorists, civic republicans such as Cass Sunstein express grave doubts about the free-wheeling system of free speech that has developed during the last seventy years.(51) The source of the civic republicans' skepticism about free speech is a broader version of the critical race theorists' concerns about racism and Catharine MacKinnon's concern about sexism. In particular, civic republicans argue that a republican form of government (such as the one established under the United States Constitution) should do more than mediate between the selfish desires of different interest groups. As opposed to a pluralist notion of democratic government, based on the reconciliation of competing interests, "republican approaches posit the existence of a common good, to be found at the conclusion of a well-functioning deliberative process."(52) This "common good" will be determined after a deliberative process during which citizens will exercise "political empathy"(53) and "`think from the [position] of everybody'"(54) in considering society's problems and in choosing a collective response. In contrast to pluralist versions of democratic theory, in which groups respect political compromise by agreeing to disagree about fundamental social values, civic republicans posit a political system that "is designed to produce substantively correct outcomes."(55)

I have explained elsewhere my disagreement with the civic republicans, basic premises about republican government,(56) and will not repeat those general criticisms here. My present concern is the civic republican view of the government limiting expression to foster something the republicans call "civic virtue." Civic virtue is an odd concept in civic republican theory because, although Sunstein calls it the "animating principle" of civic republicanism,(57) civic republican theorists have never really defined what the term means. It seems clear, however, that civic republicans believe that "civic virtue" will be one of the main "substantively correct outcomes" of republican political deliberation.(58)

The term is probably synonymous with the "common good" that Sunstein believes will be "found at the conclusion of a well-functioning deliberative process."(59) Thus, under a properly constructed (i.e., civic republican) political structure, the government will be entitled to assume that, after an appropriate amount of deliberation, the decisions it reaches about fundamental values are substantively correct. And, conversely, those running the government are entitled to conclude that the citizens who obstinately cling to disfavored values are wrong. As Sunstein says, "[the republican] conception reflects a belief that debate and discussion help to reveal that some values are superior to others. Denying that decisions about values are merely matters of taste, the republican view assumes that `practical reason' can be used to settle social issues."(60)

Problems arise when this "universalist"(61) view of the political process is combined with an equally universalist view of the role of the individual in that political process. Like the two postmodern censorship theories considered above, civic republicans consider the individual to be little more than a messy conglomeration of the individual's social influences. "Under [a republican] regime, purely private preferences are understood to be shaped by circumstances; they are social constructs."(62) Among the social influences on private preferences, Sunstein lists "the context in which the preference is expressed, the existing legal rules, past consumption choices, and culture in general."(63) Since social influences change, individual preferences likewise evolve as they adapt to new social conditions. And, more ominously, individual preferences are especially susceptible to positive government intervention.

The government is obviously one of the most powerful, and therefore most effective, social influences on the formation of individual preferences. Sunstein states very benignly the role played by the civic republican state in the social construction of individual values, filtering his version of social constructionism through the republican notion of direct citizen participation in government policymaking. In this conception, government becomes the "deliberative process in which a person chooses her own ends and does not merely attempt to satisfy whatever ends she `has.'"(64) This is an admirably participatory view of the governmental process. But Sunstein is somewhat vague about what will happen in that process to those who remain unconverted to the ends chosen by the majority. Sunstein never conclusively deals with the problems that will occur whenever his system encounters steadfast dissent over fundamental values. His preferred solution to such problems is suggested by his comment that "a democratic government should sometimes take private preferences as an object of regulation and control."(65) In other words, the government should seek to cure the dissenters of their misguided attitudes.

For all his talk about popular sovereignty and self-governance, Sunstein must (and in fact, does) endorse governmental restrictions on an individual citizen's ability to engage in certain kinds of expression, so that the government may mold citizens' personalities and attitudes in positive ways. This not only involves government prohibition of "antisocial" speech, such as pornography or hate speech, but also government efforts to prevent citizens from maintaining a steady diet of unenlightening expression, such as popular but low-quality light entertainment programming on television.(66) And this is probably only the beginning. The individual personality is a many splendored thing, and it is doubtful that a civic republican government could stop itself from refurbishing its citizens, personalities until the job is complete. It is difficult to see a logical limitation on the open-ended proposition that "a democratic government should sometimes take private preferences as an object of regulation and control."(67)

By increasing the government's power in this way, Sunstein also simultaneously accedes to increasing the power of whatever sector of society musters the political resources to gain control over the government. No matter how empathetic citizens endeavor to behave in a large, diverse democracy, there will always be substantial, irreconcilable differences between some groups and individuals, even "at the conclusion of a well-functioning deliberative process."(68) Unless Sunstein intends to propose a system that operates only by consensus -- a completely hypothetical system -- then he must recognize that some people will win and some people will lose in every democratic political system, including those labelled civic republican." Unfortunately, in a civic republican system, the principles dictate that if the winners think little enough of the losers, perspective on some important matter (race, sex, violence on television), then the government may force the winners, views upon the losers without fear of constitutional limitation.

Sunstein's explanation for giving the government this kind of power over individual expression in a civic republican system is nothing more than a simple extension of the social constructionism argument. According to the social constructionism argument, individuals are "constructed" by their social influences. Some of those social influences are produced by market forces that are themselves driven by the self-interest of other market participants, which do not necessarily coincide with the public interest. This leads individuals to do or want things that are not good for them and are harmful to the commonweal. Thus, in Sunstein's formulation of the argument, the overriding influence of social forces creates a schism between an individual's "actual interests" and that individual's "interests as subjectively perceived [by that individual]."(69) According to Sunstein, the market distortions that produce an individual's subjectively (but incorrectly) perceived interests "will support considerable legislative and judicial intrusion into private preference structures" to correct such distortions.(70) In other words, the government should be given the authority both to sort out the "actual" from the merely "subjectively perceived" individual preferences and to correct for "bad" social conditioning by creating an elaborate system of social controls and value instruction intended to produce individuals imbued with a range of government-dictated "actual" preferences.

Needless to say, implementation of this theory would radically change the relationship between the individual and government that has long been the basis for this society's system of judicially protected civil liberties. Despite its radical consequences, Sunstein's comprehensive theory of government merely takes the social constructionist premise of all postmodern censorship schemes and carries that premise to its logical conclusion. If individuals are nothing more than uncognizant mirror-images of their collective social influences, then there is no real barrier to using another form of "good" collective power to counteract those "bad" social influences. One product of collective influence replaces another, with no net loss of individual freedom. Social constructionist arguments assume that there is no such thing as a constitutionally relevant individual, and that individual freedom of thought is a cruel delusion. Therefore, constitutional rights (such as the right of free speech) that depend on mythical notions of individuality are empirically flawed and may be dispensed with in favor of some alternative system of collective value determination filtered through and enforced by the government. Nothing is lost, because the thing that the old system sought to protect (the free-thinking individual) never existed in the first place. This is the essence of what Richard Delgado lauds as the "new paradigm, for free speech."(71)

Of course, this "new paradigm" responds to the old paradigm in which individuals do really exist, freedom from coercion (both governmental and social) is possible, and those who control the government do not have the authority to recast the views of dissident citizens to satisfy the leaders, notions of good and evil. Oddly enough, the "new paradigm" is not so new itself. It is essentially the same argument that governments have always used when confronted with unruly masses that insist on rejecting the government's superior understanding of what is good for them. As the next subsection indicates, the flaws in the old version of the "new paradigm" are the same as those that plague its postmodern revivalists.

D. The Intellectual Precursors of Social Constructionism

There is nothing new about the notion that individuals are "constructed" by their social circumstances and that it matters what individuals read, hear or watch on television and movie screens. Governments have always justified their efforts to censor dissenting speech on the ground that they must do so to prevent bad ideas from gaining adherents among society's easily duped masses. When justice Sanford wrote in Gitlow v. New York that a Socialist Party faction's "Left Wing Manifesto" "involve[s] danger to the public peace and to the security of the State,"(72) Sanford was referring to the possibility that Gitlow's manifesto would convince other individuals to participate in revolutionary action, possibly including violence. When Sanford wrote that the government may criminalize revolutionary speech in order to suppress the threatened danger in its incipiency,"(73) he was referring to the possibility that a steady diet of radical ideas would "construct" (to use the modern term) a legion of new revolutionaries by changing the thought patterns of previously apathetic and docile citizens. The early Court's supporters noted pointedly that radical speech was likely to teach the unhappy lower classes unhealthy political lessons, and thus all examples of such speech had to be eradicated by the government to prevent precisely the sort of widespread and harmful social conditioning that postmodern censors now vociferously lament."(76)

The focus on negative social conditioning has also been prevalent in the immoral speech cases since the first reported opinions on the subject, and in fact the Supreme Court still uses its own variation on the social constructionism argument as one of the primary justifications for modern obscenity law. The problem of immoral social conditioning was a key to the House of Lords, decision in Regina v. Hicklin,(75) the notorious nineteenth-century British case that established the standard that would govern both British and American obscenity law for almost one hundred years. The standard for obscenity set by that case was "whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."(76)

The concern reflected in the Hicklin standard is precisely the same as the elitist modern notion that many people cannot distinguish between their "actual interests, and their interests as subjectively perceived."(77) The concern is that the unreflective masses are always prone to giving in to their baser instincts(78) and therefore are always susceptible to being "depraved and corrupted" if the beneficent government does not step in and save them from expressive temptation. This notion not only forms the basis of the postmodern censorship theories discussed in this Article, but also guides the Court in its pronouncements permitting government control of sexual speech. Although the Court has modified the Hicklin standard several times since it first took up the subject of sexually explicit speech in 1957,(79) the Court continues to justify government regulation of such speech by referring to the need to control immoral expression in order to prevent the widespread debasement of public morals.

In one of the 1973 decisions establishing the modern test for obscenity, Chief justice Warren Burger noted, on behalf of the Court, that

[t]he sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex.(80)

Catharine MacKinnon and Chief Justice Burger essentially agree that the "crass commercial exploitation of sex" constructs gender relations in undesirable ways. They may disagree on what desirable gender relations would look like and, unlike the Court, MacKinnon would undoubtedly enforce the logic of her convictions consistently and with rigorous legal sanctions if she had the chance. In the end, however, there is little difference between MacKinnon and Burger on the theoretical merits of social constructionism.

For all the elaborate theoretical baggage that the postmodern censors use to support the claims of social constructionism, the theory amounts to nothing more than the argument that speech is sometimes so compelling that it convinces a listener (or reader or viewer) to adopt an entirely new perspective on the world. Holmes made the same point more eloquently. "Every idea is an incitement. It offers itself for belief and if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at birth."(81) It is difficult to see what the postmodern censors have added to this simple truth by arguing that individuals are socially constructed,, except perhaps to emphasize that ideas are sometimes offered in insidious and subtle ways, and are sometimes adopted by individuals who do not carefully and rationally consider the merits of harmful but superficially attractive beliefs. This is the same basic attitude that the government and its supporters on the Court in the 1920s held about immigrants and members of the working class, who were perceived by the government to be especially susceptible to the siren song of radical socialism.(82) Fear of society's moral gullibility is also the persistent theme of the Court's continuing willingness to permit suppression of sexual speech that debases and distorts, human personality. The new explanation for censor@ ship, therefore, adds nothing to the old.

E. The Flaws of Social Constructionism

Although they locate themselves on different ends of the political spectrum, postmodern and conservative censors have similar responses to the effects that harmful speech might have on susceptible citizens in an unsettled, uncertain and sometimes dangerous world. In a nutshell, that response is fear -- that is, fear of radicalism (among the conservatives), or fear of rampant racism, sexism and short-sighted political selfishness (among the postmodernists). In both cases, the claim is that the feared evil threatens to destroy the positive values of democracy that both postmodern and conservative censors claim to represent. This fear leads each group to propose the same solution. Suppress the expression of ideas that are the source of the fear. Hence, censorship.

The advocates of the conservative and postmodernist censorship proposals build on the almost universal acknowledgement that even a democratic government occasionally will have to suppress some speech to preserve public order, although the censorship proponents sometimes seek to portray this basic pragmatic reality as if it were a novel contribution to free speech theory. Postmodernists, in particular, are fond of ridiculing the supposedly dominant "absolutist" position on speech,(83) despite the fact that the absolutist position has never held sway over more than perhaps one justice in the entire history of the Supreme Court.(84) The real difference between the postmodernists and their antagonists is not the difference between shortsighted First Amendment "absolutists" and benign representatives of a diverse population; the real difference is between theorists who trust the government to channel thought through regulation of expression, and those who do not. Although every First Amendment theorist of note would permit some regulation of speech, the more protective versions of First Amendment theory -- an amalgam of which forms the heart of the Supreme Court's First Amendment jurisprudence regarding political speech -- include a central presumption that runs in favor of speech and against suppression. This presumption means that governmental suppression of speech should be permitted only if the government's fears of imminent danger are fully justified, the speech is a direct and immediate cause of the danger, the suppression of speech is a logical response to these well-grounded fears, and the costs of suppression do not outweigh the benefits of social peace and ideological tranquility.

The primary lesson of the Holmes and Brandeis opinions in the early speech cases(85) -- opinions that have now superseded the majority's approach in those cases(86) -- is that the old antiradical censorship scheme could not pass this test. For many years, the Court has adopted the Holmes/Brandeis view that in the early free speech cases the government's fears of speech were overwrought, the suppression of speech did not address any real political danger, and a great deal of legitimate dissent was lost in exchange for no particular social pin. The postmodern censors would now have us renounce these lessons and return to something like the standard that Justice Sanford proposed seventy years ago. The only difference is that the targets of the suppression would now be different. Unfortunately, the new censorship schemes cannot pass the test any more easily than the old scheme, in part because of serious defects in the social constructionist argument that forms the foundation of the new censorship schemes. Specifically, the social constructionist premises of the postmodern censorship theories are flawed in at least four ways. empirically, epistemologically, politically and theoretically.

I. The Empirical Flaw

The empirical problem with the social constructionist argument has several manifestations. The first manifestation is the frequent attempt by postmodern censors to equate speech with some other, nonexpressive phenomenon such as discrimination. This claim is made most clearly in the feminist literature, as in Catharine MacKinnon's unsuccessful attempt (in conjunction with Andrea Dworkin) to write a statute that would withstand constitutional scrutiny by defining pornography as discrimination.(87) Indeed, all of MacKinnon's writings on the subject of pornography seem directed primarily toward rebutting the common claim of First Amendment advocates that pornography involves the expression of ideas and is therefore conceptually distinct from illegal action such as discrimination.(88) MacKinnon argues that the communication of pornographic images is itself a form of discriminatory action, and therefore should be treated by the government as essentially indistinguishable from many other forms of discrimination that the government routinely regulates.

MacKinnon's analysis of pornography is, to say the least, controversial. MacKinnon's attempt to describe pornography as something other than the communication of ideas is a response to the probably insuperable difficulties inherent in the narrower claim that pornography directly causes particular illegal actions such as rape.(89) MacKinnon attempts to avoid these causation difficulties by making the much broader claim that pornography instills in men and women certain ideas about gender that create a discriminatory society, which in turn subjugates women in almost every aspect of their lives. According to this argument, since the ideas expressed in pornography constitute discrimination, there is no need to link these ideas causally to any other phenomenon.

Unfortunately, this approach does not cure the causation problem@ it makes the problem worse. Even if we leave to one side the disputable value judgments inherent in MacKinnon's theory that gender is presently constructed in undesirable ways by the easy availability of sexually explicit speech, her theory requires a number of empirical conclusions that can never be proved. These unknowns include conclusions about the precise meanings of a very large and diverse body of speech, the psychological effects such speech has had on particular individuals (which, of course, must be isolated from the effects created by other aspects of society and the idiosyncrasies of individual personalities), the social consequences of these psychological effects, and the multiple ramifications of a policy authorizing governmental suppression of speech. The controversy surrounding MacKinnon's account of reality does not necessarily demonstrate that her account of reality is false, but the controversy does demonstrate that her account of reality is not a matter of empirical fact. MacKinnon's claims, like the claims of her opponents, are political opinions that are imbued with value judgments, which people of good faith may accept or deny. The point is: MacKinnon may be wrong about what pornography does, and she may also be wrong about the consequences of giving government the authority to dictate how sexuality will be addressed in speech by citizens.

This distinction is important because MacKinnon and the other postmodern censors treat the current debate over free speech as a debate between faith and fact; that is, the free speech advocates' blind faith in the value of expression, versus the censors, empirically verifiable proof of particular factual evils created by free speech. The case for suppression of speech becomes much weaker if the postmodernist claims are seen as being at least as speculative as the claims of the most avid and absolutist free speech proponent. The postmodernists make essentially unprovable claims that the cited harms (such as the denial of equality due to discriminatory social conditioning) are directly attributable to free speech, that this social situation would improve markedly if the government were given significantly greater control over how people thought about themselves and the world, and even that postmodernist sympathizers would be able to control the government once they gave it this new power over speech (this is the political flaw discussed below).(90) In this light, postmodernist proposals to give the government expansive new power over speech themselves represent willful acts of blind faith.

Other manifestations of the empirical problem with postmodernism's theory of social constructionism also involve the difficulty of accurately assessing the meaning, import and consequences of speech. All postmodern censorship is premised on the need to suppress "bad"6 speech to further "good" social values (such as equality) through social conditioning. But any attribution of value and consequences to particular speech requires empirical judgments that are problematic in ways that are similar to the problems arising from Catharine MacKinnon's questionable claims about sexual expression. This problem dooms Cass Sunstein's attempt to divide human preferences into upper-level "second-order preferences," which the state may seek to foster through the dissemination or encouragement of certain kinds of speech, and lower-order "first-order preferences" which the government may discourage through the prohibition of other kinds of speech.(91) The first-order/second-order preference dichotomy cannot withstand analysis because regardless of the mechanism used to delineate these categories, any conclusion will be tainted by the values brought to the table by the regulators. There is simply no empirically verifiable way to determine whether some preferences are "worse" than others, except to insert a series of self-serving judgments about "good" and "bad," which will determine the outcome of the analysis before it even takes place.(92)

2. The Epistemological Flaw

The empirical flaw in postmodernist social constructionism is related to the theory's epistemological flaw. The epistemological flaw arises when the claims of social constructionism are turned on the postmodern censors themselves. The epistemological flaw is this: If the postmodern censors are correct in their claim, that everyone in society is "constructed" by society in ways that distort their ability to understand and respond wisely to the true nature of the reality around them, how can we be sure that the solutions offered by the postmodernists are not themselves so badly distorted that their preferred solution will do more harm than good, if they do any good at all? How do we even know that the postmodern censors' characterization of the problem is correct? How do we know, for example, that the critical race theory and feminist proposals for censorship are not themselves based on misjudgments about the importance or effects of racist and sexist speech?

For that matter, is it not possible that the postmodern censorship theories distort reality by emphasizing the dangers of speech too heavily? As Cass Sunstein has pointed out: "The reduction of cognitive dissonance is a powerful motivating force: people attempt to bring their beliefs and perceptions in line with existing practice."(93) He has also noted. "Preferences may be distorted ... by interest-induced beliefs on the part of the beneficiaries of existing practice."(94) Regardless of why the postmodern censorship theories were first formulated, once a theorist adopts the theory as his or her own, and expends the time and effort advancing that theory, the theorist inevitably begins to perceive reality through the prism of that theory.(95) To borrow Sunstein's phrasing, the postmodernists' preference for greater government control of speech may be distorted by the interest-induced beliefs of theorists who have a great deal of time and energy invested in a particular set of policy proposals. These proposals for government control of speech are, therefore, by the terms of the proposals themselves, deeply suspect.

Another variation on this theme is the possibility that the theorists are too close to the problems they describe to make accurate judgments about the costs and benefits of their proposals. Charles Lawrence chides civil libertarians for downplaying the importance of racist expression, based in part on his own encounters with racist speech.(96) But is it not possible -- again, based on Lawrence's own use of the social constructionist argument -- that such encounters have had a distorting effect on Lawrence's preference for broad government regulation of racist speech? As a minority, Lawrence has had to endure countless examples of gratuitous racism. But he has extrapolated from his reaction to these specific instances of racism some very broad theories of government regulation of speech and ideas, which will have ramifications far beyond the specific context that motivated Lawrence. Specific example -- even those that evoke an understandable, immediate and visceral response -- may not always be the best guide to general solutions for complicated problems.(97)

Judgment can be distorted by being too close to a problem as well as by being too far away. This is especially true in the area of speech, since so much controversial speech touches upon our deepest beliefs about ourselves and our society. The First Amendment protection of free speech is so strong in large part because speech can so easily elicit a harsh and immediate response from a government that is in the business of responding to the popular emotion of the moment. In recent history, one of the prime purposes of the First Amendment has been to prevent government overreaction to speech that causes great psychic distress to those who have access to government power, but which does not immediately and directly incite some illegal action or undercut the more typical governmental means of responding to antisocial activity.(98) In a way, the speech-protective Supreme Court is doing exactly what postmodernist theory would have it do, which is to view skeptically the pronouncements of a body of officials whose judgment is very likely clouded by self-interest, shortsightedness and the fear of loss that always accompanies social privilege.

None of this criticism is meant to suggest that Professors Sunstein or Lawrence or any of the other postmodern censors are deluded or irrational or incapable of accurately perceiving or describing reality. I mean only to take note of the fact that the postmodernists cannot escape the corrosive effect of their own arguments regarding social constructionism and distorted preferences. If everyone's view of the world is irretrievably distorted by the observer's socially constructed psyche, then no one, including the postmodern critics of present reality, can escape their own distorted perceptions in order to critique society and suggest solutions to our problems. Any suggestions for social reform should be viewed as distorted, the product of cognitive dissonance, and/or generated by "interest-induced beliefs on the part of the beneficiaries of existing practice."(99) The status quo is tainted, but then again so is every alternative to the status quo. There is no way out of the logical loop of social constructionism, which suggests that even if (and perhaps especially if) the postmodernists are right, we should be deeply suspicious of proposals that give any group of political actors the unchecked authority to "take private preferences as an object of regulation and control."(100)

3. The Political Flaw

Even assuming that the postmodern censors have correctly described the problem of antisocial speech and are not overreaching in their proposals for the suppression of that speech, it is unlikely that these theorists could ever achieve their ultimate goal of a society effectively cleansed of the ideas and expression targeted by their proposals. The third flaw of social constructionism -- which I have labelled the "political flaw" -- relates to this problem. The political flaw arises because the postmodern censors routinely assume that adoption of their first proposal (recommending the elimination of judicially enforced constitutional protection for antisocial speech) will lead inevitably to the adoption of their second proposal (recommending specific legislative action to suppress racist, sexist and other no-value expression). The political flaw is that adoption of the first proposal will not necessarily lead to the adoption of the second because the postmodern censors cannot guarantee that their sympathizers will control the levers of political power. In other words, the censors could easily win the battle to eliminate constitutional protection of speech, only to lose the battle over exactly which forms of speech should be regulated. From the postmodernist perspective, this would create the worst of all worlds because after the postmodern critics have robbed everyone, including themselves, of judicial protection for speech, they may find a government that marches to a very different political drummer. That government could easily conclude that the critical race/feminist/civic republican theories discussed here represent dangerously inflammatory and collectivist ideas that should be suppressed in the interests of good, old-fashioned (that is, pre-1960s) racial, sexual and sociopolitical tranquility.

This possibility is the most obvious flaw in the postmodern censorship literature, and it is therefore somewhat puzzling that none of the theorists proposing new censorship schemes really come to terms with their potential dilemma. One typical postmodernist response to this problem is to claim that the new censorship proposals do not undermine the protections of dissent built into existing First Amendment jurisprudence, but merely propose narrow exceptions to the rule that antisocial speech is protected by the First Amendment unless it incites immediate illegal action.(10) These overtures to general free speech principles are not responsive to the key problem of how to ensure that the "good guys" will obtain and retain political power in the brave new First Amendment world. It would not take much creativity for a deeply conservative government to use the very same social constructionist theory supporting the postmodern speech regulations to justify the government's own very different ideological ends.

The postmodernists propose that speech should be treated as merely one of many values in the constitutional constellation, and that the elective bodies of government should be given the authority to subordinate free speech values to other social values, such as equality. "We are beginning to realize," Richard Delgado argues, "that ... judges who set out to be scrupulously fair may not be able to balance values in cases, such as those concerning hate speech, when free speech and another value (say community) come into conflict."(102) But community, is not the only alternative value that the government is permitted to pursue under our constitutional scheme. If the "new paradigm" of speech were adopted to govern First Amendment analysis, there would be nothing to stop a conservative government from claiming that judges are equally incapable of balancing the values of speech and the right to life of a fetus, or judging the immorality inherent in speech that advocates sexual license, homosexuality or drug use. Once we accept the basic postmodern premise that free speech should sometimes be subordinated to other, superior social values, the decision as to which social values are important enough to trump the rights of dissenters to disagree with the political majority about ethical fundamentals becomes a purely political matter.

Many political factions would be happy to adopt the "new paradigm" of free speech in the hope that they could obtain sufficient political power to silence their adversaries and "construct" the values of the next political generation. The potential battle over the right to manage social discourse and control the apparatus of political education would substantially raise the stakes in every political contest. We have already seen a microcosm of this sort of ideological warfare in the battles to control school boards waged by the religious right and their opponents in recent years.(103) Under the "new paradigm" of free speech, control of the government would mean nothing less than the right to train each new generation of citizens in the proper ways of viewing reality. The new regime would turn on its head justice Thurgood Marshall's notion that "[o]ur whole constitutional heritage rebels at the thought of giving government the power to control men's minds."(104) Under the "new paradigm" government would be specifically invited to control (or "construct") citizens, minds to ensure that those minds are protected from antisocial values and other forces in society. The new paradigm rejects the essential democratic precept that everyone in society has the right to disagree -- verbally, loudly and even obnoxious -- with even the most fundamental values represented by the political majority and its government. Under the present First Amendment regime, everyone has the right to be wrong. Under the "new paradigm" proposed by the postmodern censors, dissidents showing signs of being improperly constructed become candidates for social reconstruction in the values favored by whatever faction happens to control the government at a particular time.

I doubt that any human institution could ever accomplish the comprehensive task of positive social construction that the postmodernists set for government. But if we assume for the sake of argument that a government could accomplish this Herculean feat of social engineering, the postmodernists would be faced with a life-or-death battle over political control that they and their progressive allies could not realistically expect to win. The agreement that racial minorities and other political outsiders would be ill-served by a reduction in First Amendment protection has been criticized as paternalistic.(105) But the postmodernists have no possible response to the simple fact that the numbers are against them. If the government is allowed to regulate speech to advance other social goals, the social goals that will most often be cited as a justification for regulating speech are the goals that appeal to the political majority. This majority will by definition be composed of groups and individuals that represent the status quo -- the same status quo that is the source of the negative social conditioning that the postmodernists oppose. If the postmodernists dislike the way mainstream private institutions shape public perceptions and preferences now, they will be exponentially more distressed when those institutions gain the ability to coordinate their efforts with a compliant government.

4. The Theoretical Flaw

The various postmodernist censorship theories are plagued by one simple theoretical flaw. Although the stated objective of all these theories is to create a more egalitarian political system, the theories actually produce a political system that is inherently and irrevocably elitist. The main source of this elitism is the social constructionist underpinning of all postmodern theories.

When reduced to their most basic objective, all postmodern censorship theories purport to be a method by which those who have previously been denied the opportunity to participate fully in the political or social system will gain access to democratic government. Explanations and defenses of postmodern censorship theories commonly stress that speech-regulation proposals are designed to advance the interests of groups that have been left outside traditional, mainstream political discourse. The theory is that by eliminating speech attacking or denigrating outsiders such as racial minorities or women, members of insider groups will eventually view the outsiders more favorably, will include members of traditional out-groups in the new, postmodern political discourse, and will ultimately share power with the outsiders. At the same time, the targets of the denigrating speech will be emboldened by the new protection offered to them by a postmodern government, which will encourage them to seek and use political power in the manner that in-groups have done for generations. This is the theory: inclusive, democratic and egalitarian.

Unfortunately, this democratic and egalitarian theory is elitist to its core. This is the inevitable conclusion given the postmodernists' recommendation that we take a system that exists largely without central controls over expression (the old paradigm) and replace it with one in which a single powerful entity -- the government -- would have the authority to approve or disapprove of the expression of anyone on any subject that the government decides must be regulated for the sake of other, more important social values (the new, postmodern paradigm). As this dichotomy indicates, there are only two possible systems of free expression -- a system in which top-down regulation of expression is the exception, and a system in which top-down regulation is the rule.(106) A system in which top-down regulation of expression is the exception at least attempts to allocate to nongovernment actors the right to choose their particular worldview and make their own basic decisions about social values. These decisions may be heavily influenced by the world around each citizen, but the world is a chaotic place, and the absence of systematic indoctrination ensures that every view can at least potentially be heard. A system in which top-down regulation is the rule makes basic value choices a matter for collective determination and control. This is an elitist system because in any large, complex, modern society, political decisions will always be made by a select group that inevitably will contain only a fraction of the general population.

The elitism inherent in the postmodern approach to speech becomes especially troubling when it is combined with the absolute moral certainty with which many of the postmodernists assert their counterspeech values. When Mari Matsuda writes that "[w]e can attack racist speech -- not because it isn't really speech, not because it falls within a hoped-for neutral exception, but because it is wrong,"(107) she articulates the sort of absolutist position that contains the seeds of antidemocratic disaster when imposed collectively by the government through common sanctions such as civil fines and criminal penalties. Every individual in society has a set of moral absolutes such as Matsuda's, and most of us would share Matsuda's observation quoted above. But it is precisely because conflicting moral absolutes are by definition irreconcilable that the First Amendment is presently interpreted to prevent those who control the government from imposing their moral absolutes on those who would openly disagree. The postmodernists' alternative is not only elitist and antidemocratic, but also dangerous in more basic ways. Justice Jackson's famous reminder that "[c]ompulsory unification of opinion achieves only the unanimity of the graveyard"(108) still applies -- even to opinions that the government believes are clearly wrong.

Finally, as with the other flaws in postmodern censorship theory, the theoretical flaw provides an opportunity to turn social constructionism against the postmodernists who champion it. The postmodernists, proposal to permit government to regulate speech that implicates other important social values would teach politicians undesirable lessons about their presumptively superior knowledge, perspective and infallibility. Giving politicians more power to "construct" their constituents would simply reinforce the arrogance of power that is already the bane of any democratic political culture. The First Amendment may have its problems, but at least in its consistent message of deep skepticism about the validity of power and its uses, the Amendment contributes to the "construction" of a more manageable variety of politician.

II. Postmodern Censorship and the

Public/Private Distinction

A common theme of all postmodern censorship arguments is that expression such as pornography, hate speech and other "no-value" communication reflects values that society knows are wrong. For example, Mari Matsuda argues that racism is an idea so historically untenable, so dangerous, and so tied to perpetuation of violence and degradation of the very classes of human beings who are least equipped to respond that it is properly treated as outside the realm of protected discourse."(109) Presumably, Catharine MacKinnon would say the same thing about pornography, and there are undoubtedly other examples of what Richard Delgado calls "no-value speech, or negative-value speech, which not only could, but should be restricted[.]"(110)

The key to the postmodernist position on "no-value" or "negative value" speech is that regulation of this speech is merely a means to a much more comprehensive end. The postmodernists would have the government regulate examples of "no-value" speech not primarily to cleanse public discourse, or even to protect the immediate targets of offensive expression, but rather to erase the ideas themselves from the minds of everyone in society. The main purpose of postmodern speech regulation is to reconstruct fundamentally how everyone in society views the world. As Delgado notes,

we use symbols to construct our social world, a world that contains

categories and expectations for "black," "woman," "child,"

"criminal," wartime enemy," and so on. Once the roles we create for

these categories are in place, they govern the way we speak of and

act toward members of those categories in the future.(111)

This is the essence of the social constructionist arguments discussed in the previous section. Taken to their logical conclusion, these arguments indicate that the postmodern censors will have achieved their ultimate goal only when they have completely revised every individual's ideas about social relations.

Given the background provided by the social constructionist arguments, it is almost a logical necessity that the postmodernists reject efforts to insulate some aspects of personal expression from government control. Under postmodern censorship theory, anything that contributes to the development of social values or political perspectives should be subject to government regulation, even if the influence occurs outside the traditional public sphere. Thus, the second cornerstone of postmodernist censorship is the renunciation of the public/private distinction. In Cass Sunstein's modest formulation, "a democratic government should sometimes take private preferences as an object of regulation and control."(112) Any attempt to preserve a sphere of private communication and enculturation would doom postmodern efforts to instill proper democratic values and eradicate "historically untenable and dangerous" ideas such as racism or sexism.

Attacks on the public/private distinction have been a common component of critical race, feminist and civic republican literature for many years. The nature of the analyses, however, is somewhat different. The critical race theorists and feminists emphasize that the preservation of a private sphere has historically subjugated women and racial minorities. The civic republicans focus on the perceived inconsistency in the way courts have treated governmental regulation of economic affairs, as compared with the way courts have treated governmental regulation of antisocial speech. The civic republicans liken the courts, approach in the speech cases to the notorious Lochner decision,(113) in that the speech cases require governmental neutrality and thereby reinforce the status quo. Since the critical race/feminist and civic republican arguments raise different issues, they will be addressed separately.

A. The Critical Race and Feminist Attacks on the

Public/Private Distinction

Criticism of the notion that the government should respect a realm of "private" expression has long been a fixture in both critical race and feminist literature. Feminists, in particular, have produced a large body of work analyzing the concept of privacy, including private expression. In many ways, criticism of the concept of privacy is the linchpin of Catharine MacKinnon's version of feminism. She views the legal protection of privacy as a key way in which government has historically shunted the concerns of women into a no-woman's-land, and excluded women from the sorts of protective social intervention that have traditionally protected men. I will leave for others a comprehensive critique of the broader literature,(114) and focus here on the elements of the feminist critique that inform that critique's stance on the regulation of speech such as pornography.

The feminist critique of privacy is a subset of the theory's broader critique of the concept of human freedom. At its most extreme, this critique denies the very existence of freedom -- specially freedom cast in the form of free will. MacKinnon's statement that, "[t]he liberal ideal . . . holds that, so long as the public does not interfere, autonomous individuals interact freely and equally,"(115) correctly points out that the concept of privacy is closely tied to notions of human freedom, and that both freedom and privacy are essential elements of liberal democratic theory. According to MacKinnon, these presumptions of freedom are inapplicable to women:

[Privacy] is personal, intimate, autonomous, particular, individual,

the original source and final outpost of the self, gender neutral. It

is, in short, defined by everything that feminism reveals women

have never been allowed to be or to have, and everything that

women have been equated with and defined in terms of men's ability

to have.(116)

The liberal notion of privacy is, according to MacKinnon, "a right of men to be let alone, to oppress women one at a time. It embodies and reflects the private sphere's existing definition of womanhood.... It keeps some men out of the bedrooms of other men."(117)

The feminist critique of privacy is bound with the claims of social constructionism discussed in the previous section. MacKinnon opposes the protection of privacy because she believes that privacy provides the matrix for the oppressive construction of gender. "[Privacy] has preserved the central institutions whereby women are deprived of identity, autonomy, control and self-definition; and has protected the primary activity through which male supremacy is expressed and enforced."(118) Thus, human freedom is nonexistent because women (and men as well, albeit in different ways) are "taught" to be unfree.

According to MacKinnon, pornography is a primary means of creating and sustaining this mindset of intellectual bondage, and the concept of privacy is a primary means of maintaining the dominance of pornography and the pornographic worldview. "To the extent that pornography succeeds in constructing social reality, it becomes invisible as harm."(119) MacKinnon contends that pornography's success is attributable largely to the fact that liberal theory has carved out an area of privacy in which the state cannot effectively respond to pornography,s lessons. She views Stanley v. Georgia(120) -- in which the Supreme Court prohibited the state from prosecuting the private possession of legally obscene material -- as a virtually pure example of this tendency. In contrast to justice Marshall's vigorous opposition in Stanley to the assertion that the State has the right to control the moral content of a person's thoughts,"(121) MacKinnon prefers state control. After considering the alternatives, MacKinnon concludes: "[W]hile defenders of pornography argue that allowing all speech, including pornography, frees the mind to fulfill itself, pornography freely enslaves women's minds and bodies inseparably, normalizing the terror that enforces silence from women's point of view."(122)

In MacKinnon's view, protection of privacy amounts to protection of systematic domination. In this way, MacKinnon views privacy as an automatic ally of the status quo. Specifically, she asserts that "[t]he existing distribution of power and resources within the private sphere will be precisely what the law of privacy exists to protect."(123) MacKinnon would abandon the protection of privacy, as well as every other major premise of current First Amendment doctrine, including the "most basic assumption" that any speech is truly free. She would, quite literally, turn First Amendment doctrine on its head and impose a new definition of freedom, in the form of government control in the service of particular social goals. This new definition is necessary because "[f]or women, the urgent issue of freedom of speech is not primarily the avoidance of state intervention as such, but finding an affirmative means to get access to speech for those to whom it has been denied."(124) This means not just expanding the universe of speakers by using government resources to give women and other subjugated people access to the means of communication; it means using the coercive apparatus of government to suppress pornography and other "expressive means of practicing inequality,"(125) even if they occur in private.

The critique of the critical race theorists' public/private distinction is similar to MacKinnon's analysis, although the critical race version of the critique tends to focus on the specific ways in which (according to the critical race theorists) government protection of speech reinforces the discriminatory messages of private speech. For example, Matsuda argues that by providing legal protection for racist speech the government surreptitiously endorses the content of that speech and magnifies the injury to those targeted by the speech. She interprets the government's refusal to sanction racist speech (because of existing First Amendment rules) as functionally indistinguishable from explicit governmental endorsement of racism. Thus, according to Matsuda:

State silence ... is public action where the strength of the new

racist groups derives from their offering legitimation and

justification for otherwise socially unacceptable emotions of hate, fear, and

aggression.... [T]he law's failure to provide recourse to persons

who are demeaned by the hate messages is an effective second

injury to that person.(126)

Lawrence also organizes his criticism of current First Amendment law around the assertion that First Amendment theory fails to take into account private as well as public harms. He argues that First Amendment doctrine and theory have no words for the injuries of silence imposed by private actors."(127) Lawrence asserts that these private "injuries of silence" are analogous to government censorship and should therefore be a factor in First Amendment analysis. Specifically,

First Amendment law ignores the ways in which patriarchy

silences women, and racism silences people of color. When a

woman's husband threatens to beat her the next time she

contradicts him, a First Amendment injury has occurred. "Gay-bashing"

keeps gays and lesbians "in the closet." It silences them. They are

denied the humanizing experience of self-expression. We all are

denied the insight and beauty of their voices.(128)

According to Lawrence, the government's refusal to recognize these injuries is attributable to "the mystifying properties of constitutional ideology," such as the state action doctrine and the public/ private dichotomy that is implicit in the state action doctrine.(129) Lawrence makes two conceptually distinct arguments against using the First Amendment to restrict government regulation of private speech. On one hand, Lawrence argues that all aspects of privacy -- including private speech -- are problematic because "we naively believe that everyone has an equal stake in this value."(130) Lawrence argues that in reality, privacy does not protect everyone equally; therefore, the distinction between private and public actions should be abandoned in favor of a focus on the degree of harm incurred by both private and public actions. This revised analytic focus would tend to favor government regulation of private racist speech in order to prevent "infringement of the claims of blacks to liberty and equal protection."(131)

Thus, according to Lawrence,s first argument, the real issue raised by government regulation of hate speech is not whether the government should be permitted to regulate the expression of private speakers, but rather whether "we should balance the evils of private deprivations of liberty against the government deprivations of liberty that may arise out of state regulations designed to avert those private deprivations."(132) Presumably, government censorship would be permitted if the government determined that the degree of harm created by the private speech outweighed the degree of harm created by the government censorship. Of course, this balancing approach towards censorship would mean that the extent of the government's legal authority to regulate speech would be determined by the government itself. This government determination, however, is an unavoidable consequence of eliminating the public/private distinction and the concept of limited public authority on which the public/private distinction depends.

In contrast to Lawrence's first argument, he also argues (along the lines of Matsuda's argument quoted above(133)) that by refusing to censor racist speech, "the government is involved in a joint venture with private contractors to engage in the business of defaming blacks."(134) Lawrence's second argument does not necessarily entail an outright attack on the public/private distinction because it asserts that the state action requirement of the Fourteenth and First Amendments is met by the failure of the state to regulate racist speech. According to this argument, the government has merely "hand[ed] over the copyright and the printing presses to its partners in crime"(135) and, therefore, has converted an ostensibly private action into an action of the state. Lawrence bolsters this claim with the contention that there has not yet been satisfactory retraction of the government-sponsored defamation in the slavery clauses, the Dred Scott decision, the black codes, the segregation statutes, and countless other group libels."(136) Thus, according to this argument, the regulation of private speech is necessary to fulfill the government's obligation to "disestablish[] the system of signs and symbols that signal blacks' inferiority."(137) This obligation apparently can be fulfilled only by government action to eradicate the very idea of racism from both the public and private areas of the culture.

Although Lawrence's two arguments are conceptually distinct, they lead to the same results. The elimination of the First Amendment as an effective limit on the government regulation of speech and the imposition of a straight balancing analysis for the determination of whether government regulations of speech are constitutionally permissible. In the critical race theory formulation, the First Amendment's protection of intellectual freedom from government control becomes merely one among many narratives, of constitutional adjudication and political power.(138) As noted in the introduction to this Article, the critical race theorists (along with other postmodern censors) treat their proposal as benign, noble, and progressive; in their own terms, they are proposing "a more nuanced, skeptical, and realistic view of what speech can do, one that looks to self- and class interest, linguistic science, politics, and other tools of the realist approach to understand how expression functions in our political system."(139) At the same time, the critical race theorists (again, along with other postmodernists) leverage other constitutional amendments against the First to support their claim that they intend merely to bring the First Amendment in line with other values expressed in the Constitution. Under the present system, Richard Delgado argues, "free speech [is] a powerful asset to the dominant group, but a much less helpful one to subordinate groups."(140)

The broad nature of the critical race theorists' attacks on the public/private distinction implicit in the First Amendment belies their claims of moderation and their commitment to "nuance." The postmodernists' efforts to undermine the very concept of privacy take them well beyond the point of simply fine-tuning the ordering of constitutional values, and force them to embrace a proposal that is much more radical. The postmodernist attack on current First Amendment doctrine incorporates a rejection of the very notion of limited government. If the public/private distinction were abandoned, every individual activity would become "public" and, therefore, subject to government control. And if everything were public, there would no longer be any limitation on the power of government to do the bidding of any set of powerful political actors. This amounts to nothing less than the deconstitutionalization of American jurisprudence. Under such a system, the axiom the personal is political, would take on a meaning much different and more insidious than the one usually intended by the politically progressive theorists who are fond of repeating the phrase. The specific implications of the critical race and feminist positions are pursued in the next subsection.

B. The Flaws in the Critical Race and Feminist Approaches to

the Public/Private Distinction

I. The Antidemocratic Flaw

The First Amendment model that the critical race theorists and feminists attack incorporates three of the most basic principles of constitutionalism: that individuals are separate from the government; that the government is the servant of its citizens rather than vice versa@ and that the government may not use its coercive tools to prevent political attacks on one political faction or coalition of factions, or to enshrine any political ideology as permanent and unassailable. The concept of privacy, arises directly from these principles. Indeed, it is the specific embodiment of the first principle -- that the government is an institution unto itself, which exists apart from the citizens served by that government.

The concept of privacy reflects the recognition that even a responsive democratic government often will have institutional interests, values and objectives that are quite distinct from those of individual citizens. Many of these conflicting governmental and individual interests will relate to the most fundamental personal and social values. When the reality of fundamentally conflicting interests is combined with the seductive possibilities presented to the government by its monopoly on the authorized use of absolute power -- jails, guns, electric chairs -- the prospect always exists that the government will attempt to use its power to settle matters of fundamental value once and for all in favor of its own preferred way of perceiving and organizing the world. At that point, the public/ private dichotomy would be eliminated, but then again so would the possibility of democratic self-governance. Since every citizen would merely reflect the government's own preferred brand of political and social reality, it would no longer be possible to claim that the citizens are deciding anything, except in the farcical Soviet sense of unanimous citizen certification of a foregone political conclusion.

The central flaw in the feminist and critical race critiques of the public/private distinction is that these critiques cannot be reconciled with democracy's basic need for some separation between the governors and the governed. Without that separation, democracy cannot exist because there is no group capable of providing popular consent to the government's exercise of power. Likewise, if the government is permitted to break down barriers of privacy and exert direct control over the thoughts and attitudes of the public on matters of great political importance, it will no longer be possible for the public to reject one government and replace it with another government representing a radically different ideological stance. Without this possibility of ideological change, it is difficult to see how such a government could be accurately described as democratic.

MacKinnon is correct when she describes privacy as the cornerstone of liberal democratic theory,(141) but the assertion would be equally true even if she omitted the qualifier "liberal," because some fairly substantial degree of individual independence from government -- i.e., "privacy" -- is necessary for any conception of democracy. An attack on privacy, therefore, is necessarily also an attack on democracy.

Just as the preservation of a realm of protected individual activity is necessary for democratic theory, the elimination of the public/ private distinction is equally necessary to fulfill the objectives of the postmodern censors. Eliminating the protected realm of individual privacy is necessary to facilitate the reeducation of citizens, which postmodernists believe must occur to counteract the negative social construction that has taken place in the unregulated marketplace of speech. The postmodern censors want to abandon much of First Amendment jurisprudence because in their view basic, necessary social change cannot occur without fundamentally changing the way people think about themselves and their fellow citizens. Thus, controlling contrary speech and ideas is actually more important than any other function of government.

It would be difficult to overstate the importance of these arguments in postmodern censorship theory. One example of how seriously the postmodernists take the public/private issue can be found in one of Delgado's articles on the subject of hate speech regulation. Delgado argues that traditional civil rights laws will inevitably fail if the government does not first take control of citizens' attitudes concerning racial matters:

Not only does racist speech, by placing all the credibility with the dominant group, strengthen the dominant story, it also works to disempower minority groups by crippling the effectiveness of their speech in rebuttal.... Unless society is able to deal with this incongruity, the [T]hirteenth and [F]ourteenth [A]mendments and our complex system of civil rights statutes will be of little avail. At best, they will be able to obtain redress for episodic, blatant acts of individual prejudice and bigotry. This redress will do little to address the source of the problem.. the speech that creates the stigma-picture that makes the acts hurtful in the first place, and that renders almost any other form of aid -- social or legal -- useless.(142)

It is difficult for many of us to think of the various Civil Rights Acts enacted since 1957 as covering only episodic, blatant acts of prejudice."(143) Provisions such as the public accommodations section of the 1964 Civil Rights Act,(144) for example, changed the nature of daily life in very basic ways for the entire country. But Delgado's diminution of these regulations seems quite serious. Note the last sentence quoted above. Delgado asserts that in the absence of government control of speech almost any other form of aid will be useless -- not simply less effective. Along the same lines, Delgado suggests in another article that affirmative action programs will fail to achieve their integrationist purpose if the hearts and minds of those affected by such programs are not captured first.(145)

This dismissive attitude toward the potential accomplishments of social welfare legislation enacted and enforced in the face of continuing political dissent is surprising not because it is new and radical, but because it is commonplace and reactionary. Every political interest group in a pluralist democratic society fervently wishes that it could convince its political opponents to forego their opposition and get with the program. Likewise, every political faction asserts that it represents more than one group's particular interests, every faction tries to cloak its position in the grandiose terms of fundamental justice and eternal righteousness. These characteristics are common to every political activist because they reflect the typical and understandable fear of finally capturing the government and enacting favorable legislation, only to lose both the government and the legislation at the next election. No political group likes to think of its hard-won accomplishments as temporary and tenuous. So every political group has at the back of its mind the prospect posed by the postmodernists: Once we win power, let us devise a method whereby we get to keep it.

2. The Flaw of Political Naivete

The second flaw in the critical race and feminist attacks on the public/private distinction is the flaw of political naivete. Specifically, what makes the postmodernists believe that their preferred set of values will be chosen as the rationale for government intervention into what are now constitutionally protected areas of individual value formation and expression? To the extent that critical race theorists and feminists attempt to answer this question in the abstract, their responses typically resemble Delgado's argument that "speech which constructs a stigma-picture of a subordinate group stands on a different footing from sporadic speech aimed at persons who are not disempowered[.]"(146)

The problem with this formulation, as with many other aspects of postmodern censorship theory, is that it could easily be turned to very different political ends. For example, it would not be difficult for an anti-abortion government to argue that fetuses are "disempowered," and that speech advocating abortion or advising women how to obtain an abortion is speech "construct[ing] a stigma-picture of a subordinate group,"(147) which must be suppressed.

Related postmodern arguments, such as the claim that the government is part of a "joint venture"(148) with antisocial speakers, also may be used against the political interests represented by the postmodern censors. Once the notion that the government is directly responsible for speech by private persons replaces the current First Amendment model, the "joint venture" notion will be available for use by any political group that captures control of the government. An anti-abortion government could logically claim that all expression favoring unfettered abortion rights, both public and private, must be suppressed because otherwise the government would be engaged in a "joint venture" with baby-killers.

Ensuring that the broad new speech-regulation powers they give to the government will not be used against them is a persistent problem for the postmodern censors. Once abstract justifications for government suppression (protecting "subordinate groups"; preventing "joint ventures") are shown to be politically insecure, the postmodernists, only response to the problem is the ipse dixit that their own specific preferences and political values are inherently different -- i.e., more important -- than those of their political adversaries. Delgado articulates the premise that suffuses other critical race and feminist writings when he asserts that "race -- like gender and a few other characteristics -- is different, our entire history and culture bespeak this difference."(149)

As Delgado himself notes, however, "[i]t might be argued that all speech constructs the world to some extent, and that every speech act could prove offensive to someone. Traditionalists find modern art troublesome, Republicans detest left-wing speech, and some men hate speech that constructs a sex-neutral world."(150) So what is the postmodernists' guarantee that the government would only regulate private speech pertaining to race and gender and other postmodern concerns? Simple -- they must be sure to control the government, because in the new, postmodern world of expression, the people who control the government get to decide for everyone which interests can be attacked through expression and which ones are sacrosanct. In short, under the postmodern system we must rely for our intellectual liberty on the wisdom, knowledge, moderation and good judgment of politicians.

This is especially problematic in light of the fact that the postmodern arguments against the public/private distinction in the First Amendment area also have consequences for related areas of civil liberties such as Fourth Amendment search and seizure law. If the postmodern censors are serious about renouncing the public/ private distinction, then they should have no problem breaking down the constitutional barriers that now obstruct the government's efforts to see, hear and regulate the expressive activities that occur behind the closed doors of a private home. And if the postmodern censors are serious about the need to restrict racist (or sexist or otherwise impolitic@ speech that constructs a stigma-picture of a subordinate group,"(151) then they should be anxious to suppress that speech regardless of the form in which the speech appears.

So, does this mean that under a broadly drafted hate-speech (or pornography) statute, the simple possession of a copy of Mein Kampf (or Debbie Does Dallas) could be criminalized? If so, would probable cause that someone possesses such a book (or video) justify a search warrant permitting the police to roam at will through that person's private library?(152) What if the police find other questionable materials during the course of the search? Could they seize these additional materials until they had a chance to scrutinize them carefully for unacceptable ideas? Then, of course, there would arise the inevitable problems of interpretation. Is Birth of a Nation equivalent to Mein Kam