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Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to So to Speak: The Free Speech Podcast, where every other week for almost five years now, it’s hard to believe, we take an uncensored look at the world of free expression through personal stories and candid conversations. I am as always, your host, Nico Perrino, and today, I’m having a repeat guest back on the show. Your probably all familiar with him. He was a featured guest on our recent podcast that we did about comic book censorship and the comics code.

This is the one and only of course, Bob Corn-Revere, and he is out with a new book called The Mind of the Censor and the Eye of the Beholder. It’s about just what it says it’s about, the mind of the censor. Why do people censor, and how do they justify it? And he takes a trip through history, looking at mostly American history. I think, almost exclusively, American history, to look at some of America’s greatest all-time censors. We look at Comstock from the 19th and early 20th century. We look at Newton Minow, who worked for the FCC and came up with the phrase – what was it, vast wasteland, Bob?

Bob Corn-Revere: Yes.

Nico: And it was actually interesting to read in your book that Newton Minow, I believe is still alive, right?

Bob: Yes.

Nico: And is still playing on that phrase, vast wasteland. So, we look at him, and then we look at the comics code. And then, at the end of the book, Bob actually draws parallels and explains some differences from some of these historical censors, the censors of early radio, early television, comics, and looks at the new anti-free speech movement, and how they differ. But before we get into all that, Bob, first of all, I realize I’ve been going on. Thank you again, for coming on the show.

Bob: Always happy to be here.

Nico: You’ve been doing First Amendment work for a very long time, litigated some of the big First Amendment cases. This is your first book through. Why, in this long career, did you decide to come out with a book now and on this topic?

Bob: Well, it’s my first book that isn’t a “law book” per se. I’ve done treatises on communications law. I’ve done books of essays on various policy issues. So, I guess you would say this is probably about my fourth book, but it’s the first one written for a general audience that, while it talks about the law of free expression, it’s really not designed to be a treatise on the law of free expression. It’s more a book that I think anyone with an interest in these issues would be able to read, and hopefully enjoy, and come away with an understanding of why censors are so important to how we understand free expression.

Nico: I have to ask, this is an excellent title, did you come up with the title before coming up with the idea for the book, or was the idea for the book what inspired the title?

Bob: It’s hard to remember. It’s been so long ago since I first thought of this, but I think I probably came up with the title and some of the basic ideas for the book around the same time. And part of it came from the fact that I have been doing First Amendment law for almost my entire career. And I started wondering, and then noticing what common features you would find among people who advocate censorship. And so, the title just sort of naturally came from thinking about that.

Nico: You begin the book by taking a look at Anthony Comstock, who was the leader of, what was it called, the New York Society for the Suppression of Vice. And he looms large in American history. I suspect there are probably some of our listeners who maybe have heard of the name but aren’t familiar with him and his background. So, I wanna ask you a little bit about that. I should say, I play video games periodically, and there’s this popular game series called Bioshock.

And they came out with a video game, I think in 2014, which the world was modelled on one in which essentially Anthony Comstock won his battles and became president, or in this case, dictator, and what that sort of world would look like. It was very theocratic. It was very puritanical. So, that’s actually one of my first introductions to Anthony Comstock, was through the world of video games, but for those of our listeners who haven’t played Bioshock or haven’t been familiar with Anthony Comstock, who is he, and why is he important to the story of free expression in America?

Bob: Well, it’s not a surprise that many people would not have heard of Anthony Comstock. He was one of the most important men in America at the turn of the century, at least on these issues, and had lasting influence that continues to this day in some ways, but he has become an obscure figure in history. And even many people who are versed in media in law and First Amendment law are not that familiar with Anthony Comstock. Now, as you say, he’s had something of a resurgence, or at least an interest in him has come back in recent years.

As you say, in Bioshock, but also just in the last three years, there have been a number of books, two of them released this summer, that talk a lot about Anthony Comstock and all that he did. My book isn’t about Comstock, per se. It’s not a Comstock biography, but it starts with actually three chapters that revolve around Comstock that basically focus on the mindset of the censor. And like no one else in history, and certainly not in American history, Anthony Comstock personified what it is in the censor’s mind. And I think there are really a number of identifiable characteristics.

One is they believe that it is legitimate, in fact, it is a mission to use the power of the state to either restrict speech they find that is evil, or to promote speech or mandate speech that they think is particularly good. The second characteristic is they have absolute certainty that they are correct. And the third characteristic, which came in later years and not with Comstock, was that they fundamentally know at some level that what they are doing is un-American, which is why censors after Comstock, after he ruined the name of censorship – censors that came along after Comstock all tried to deny that what they’re doing is censorship.

Because of course, censorship is bad, or to paraphrase Richard Nixon, that would be wrong. And so, they always try and find a way to say what they’re doing isn’t censorship, either because the speech they want to restrict doesn’t deserve First Amendment protection, or because the tactics they’re using don’t rise to the level of censorship. This isn’t censorship. This is just regulation, they might say, or then, I’d say, we’re just trying to get voluntary agreement to something. Meanwhile, they’re using officers of the state to threaten people with dire consequences, if they don’t go along.

So, those are the main consequences, but the rise of Comstock and how he became so influential is such a fascinating story. I originally was going to just have the first chapter be about Comstock, but there were so many stories and so many ways in which it tied into the theme of the book that I had to break it into three chapters, one his rise in his career, a second chapter on his legacy and what that really meant after he was gone, and a third chapter on his tactics, which have been used by professional censors ever since.

Nico: I wanna actually seize on a point that you made about censors, at least after Comstock, and we can maybe talk about what Comstock thought of the word censor, have tried to distance themselves from the word censorship. Newton Minow, for example, was a young chairman of the FCC under JFK.

Bob: That’s right.

Nico: You write in your book that he claimed that broadcasters actually – he had this vast wasteland speech in which he called essentially everything that was being shown on television degrading, indecent. He called it a vast wasteland. And he said that it was actually the broadcasters who were the censors because they based their programming decisions on ratings and what the audience wants, and because they strived to only air non-offensive programming. He said this is censorship in its most pernicious form.

So, he’s trying to do an Orwellian twisting of phrases to actually distant himself from censorship and put it on his critics, understanding that the free speech or censorship have some cultural capital.

Bob: Well, right, and he basically said that because the networks made their decisions about what to air, and they’re not putting on programs that he thinks are sufficiently uplifting, that that is censorship, as opposed to have the government nudge broadcasters and try and suggest there are programs that they really should be putting on.

As a matter of fact, he said that, you would get no argument from me, if you said that given a choice, people would rather watch a western than a symphony, but that the public interest, which was the law, the Communications Act mandate that he was entrusted to enforce required more, that it should get broadcasters to air what people should watch, rather than what they might prefer to watch.

Nico: Another example of would be censor claiming distance from censorship would be perhaps Tipper Gore and all of her colleagues in the, what is it, the Parents Music Resource Center?

Bob: Exactly.

Nico: And their enterprise in the mid to late ‘80s to try and get music labels on, what was it, tapes at the time, CDs, things like that.

Bob: That’s right.

Nico: And they claimed all along, this wasn’t an effort at censorship, but they held these hearings in congress, which are famous, of course now because you had the lead singer from Twisted Sister appear on them, and of course, his heavy metal getup. But a lot of the people who led this had connections to senators, for example. They were either the wives, as in the case of Tipper Gore or – so it had this almost regulation by intimidation feel to it, even if the –

Bob: Well, that’s right, yeah. Parents Music Resource Center was created in the mid-1980s. It was a group of prominent Washington wives. Tipper Gore was sort of the figure head for them. Susan Baker was another, a bipartisan effort [inaudible – crosstalk] [00:11:18]

Nico: And Susan Baker was the wife of, what was it, former chief of –

Bob: Of James Baker was the chief of staff, yeah.

Nico: James Baker.

Bob: And it had a number of prominent positions in various administrations.

Nico: I think they just came out with a book about him, a pretty good one. I think my wife read it, but an interesting man.

Bob: Yeah, oh yeah. And the LA Times estimated that, let’s see, 50 percent of PMRC’s members were married to 10 percent of the senate. And so, the Parent-Teachers Association, PTA, had been trying to get hearings on what they saw as salacious rock music for a couple years and got nowhere. PMRC was formed, and within a couple of months, persuaded the Senate Commerce Committee to hold hearings in September 1985. And as you point out, they had the members of PMRC, the prominent members testify along with people who supported them. And on the other side, they brought in Frank Zappa, Dee Snider, the lead singer of Twisted Singer, and John Denver.

And so, it was sort of your classic kind of political show trial hearing, which I think it would be fair to describe it as kangaroo court, except that would be terribly unfair to kangaroos. I mean, typically, these things are put together – when a hearing is put together is to showcase the good guys and the bad guys. It’s very much like professional wrestling in that the participants are carefully selected to represent who the good guys are and who the bad guys are. And it’s also a theater for intimidation. And in this case, it was both the carrot and the stick.

The carrot was that congress was considering, and this was mentioned a couple of times during the hearing, a blank tape tax for the music industry. And so, the head of the Recording Industry Association of America showed up and testified. And sort of in the background, he didn’t mention it, was this blank tape tax. And unless they played ball, they would risk not getting the favorable legislation.

Nico: And just for our listeners, blank tape tax, the concern there was that people were rerecording previously purchased tapes, or discs, or cassettes, or whatever.

Bob: And undercutting music sales. And the idea behind the tax was to put a tax forward that would be compensation for the music industry on the sale of blank tapes. The –

Nico: Kinda like an early Napster fight, so to speak.

Bob: Yeah, exactly, yeah. And the stick was represented by various of the members of the panel, talking about how they could rely on FCC action for radio play of music they found to be unacceptable. And to help with that, PMRC came up with their list of what they called the filthy 15, which was essentially intended to be a do not play list. Now, throughout the hearing, they of course said, we’re only talking about a voluntary record labeling effort. How could that be censorship? It’s voluntary. But it’s the use of the word voluntary as used in Washington DC and essentially nowhere else.

There is an implied or else whenever you say we want you to do this voluntarily. And the or else here was either we don’t support your favorable legislation, or we can resort to regulatory efforts to force you to do what we want. And later on, PMRC supported mandatory record labeling legislation in 19 states. So, the threat of censorship and state censorship is always there, even when it’s described as voluntary, and that’s an example of how censors who want to use state power and advocate the use of state power to restrict ideas or expression they don’t like will claim what they’re up to is not censorship because this is only voluntary.

Nico: There did end up being, of course, the labels on CDs, for example. You see explicit on there, if there is explicit content. We have that with us today, if you download a song from iTunes. It has an E next to it. Did that come as a direct result of these hearings? These are voluntary labels agreed to by the music industry, much in the same way that the Hays Code was a voluntary system for the music industry, or the Comics Code Authority was a voluntary code for the comic book industry.

The voluntary nature of these codes come as a direct result of the threat of government censorship or government meddling within the industry. To put it squarely, could these labels have existed without the hearings that happened in congress, do you think?

Bob: Oh yeah, sure, they could have. And I’m not against, and it’s not a First Amendment issue, to have a voluntary system where someone in the industry wants to alert their purchasers in advance, what to expect. And industries do that quite frequently, but the examples that you mentioned, the Hays Code from the music industry, the Comics Code Authority in the 1950s –

Nico: The Hays Code was for the movies industry.

Bob: Right, adopted in the late ‘20s, early ‘30s, and people will constantly talk about pre-code movies and post-code movies. And that all changed when the Motion Picture Association associated the ratings system in the late ‘60s, but the various examples that you have mentioned, the Hays Code, the comics code, and the music labeling in the 1980s all came at the behest of specific pressure campaigns threatening the use of government action if “voluntary” measures weren’t adopted.

Nico: The FCC kinda plays a role in some of this. And you talk about the FCC a lot in your book and the regulation of, whether it’s television broadcast networks or radio broadcast networks. Do you think it’s, speaking generally here – and if I recall, you used to work for the FCC, is that it?

Bob: I was chief counsel to the chairman.

Nico: So, the work that you do at the FCC in regulating the content of this programming, it seems to strike on its face at core First Amendment or free expression issues, and seems to me, at least in this day and age, where you can get so much content. I’m reading your book, and it’s talking about something that one of the leaders of Grateful Dead said on the radio. Forget exactly what it was, but I’m like, turn on any podcast and hear something more explicit than that. It just seems so antiquated in a world in which you don’t have three broadcast networks and just a couple of radio stations in your community.

Bob: Well, that’s right. And so many of the regulations of both affirmative mandates and negative restrictions that have grown up with the radio, and then television media, really have no place in today’s world. And in constitutional terms, those regulations have been confined to those particular media. And so –

Nico: And what’s the reasoning there?

Bob: Well, I explore this in the chapter on the vast wasteland, the origins of radio and television regulation that was rooted in the concept of spectrum scarcity, and then explore the notion that that was really a manufactured concept, that radio waves, which by the way, don’t exist. Ain’t no such thing as a radio wave. There is the electromagnetic spectrum that can be used to transmit information, but this is like saying that the federal government had nationalized the law of physics, that the scarcity was essentially created as a justification for regulation.

As a scarce resource, which was the justification, the electromagnetic spectrum is no more a scarce good than any other economic good, not that two people can’t use it simultaneously. You can’t use it for radio, and then a different type of service at the same time, but that just means you need a method of allocation for who’s going to have priority of use. It was actually beginning to develop in common law that prior use allowed sort of a homesteading notion to allow you to enforce your rights to use that spectrum.

Nico: Just like you would with land property, for example. You can’t have two owners of the same piece of property.

Bob: Exactly. You can’t have someone farm and build a parking lot on the same piece of land. So, the economic system has come up with a way of allocating who’s going to use that resource. It’s no different with the electromagnetic spectrum. And so, we developed a system of licensing by the federal government, but it could as easily and was beginning to develop a system more akin to property ownership, where you would have the prior use be a way of establishing that claim. As it turned out, government stepped in developed a licensing system. And you mentioned, there may be some First Amendment problems here. And we’ll think about it.

We have a First Amendment that is designed in many respects in response to the system of press licensing that existed in Europe and in England in particular in earlier centuries. And so, now we have a new medium come along, and the government says we ought to license that. There’s a real tension between the First Amendment and that very concept. And two different kinds of regulation have grown up under this regime. And I explore them in separate chapters.

One is sort of the public interest mandate that Newton Minow was a primary spokesman for in his vast wasteland speech. And the other is negative regulations of – the indecency regulations, the prohibitions that exist for broadcasting, but not for other media. And I explore the origins of those, who the primary proponents are for these various kinds of regulations, and how in the end, they have been failed concepts.

Nico: It just seems to me strange that you go from regulating a medium because it’s scarce, the electromagnetic spectrum is scarce and you need allocate property rights, which the free market has found a way to do with most everything else, but I guess the federal government thinks wouldn’t work in this context, to then deciding that because we’re gonna help allocate property rights to the spectrum, we then need to determine the content, or review the content, or set rules for the content that then exist on there. And this seems to me that’s something the government does often.

Bob: Yeah, it’s sort of a regulatory mission creep, where you say because we have to allocate who can have a license, now we can regulate to a certain degree what it is they can do with that license. And there’s a real irony in how the law developed in this area, where it developed based on this notion of scarcity, and then one of the first things that the Federal Radio Commission did when it was first created in 1927 was to limit the number of stations. And so, stations that belonged to universities, to unions, to various other diverse voices were the first ones to go. They were sacrificed in that first round of about 200 stations that were taken off the air.

And the way the regulations developed was that, as opposed to promoting diversity, the concept was that radio stations had to be like department stores rather than specialty stores. They had to have a little something for everybody. And so, you ended up having more a blandness mandated by virtue of that regulation.

Now, I’ll say this too about these different chapters in the book, one on public interest regulation, and another on the indecency panic. And that is in most examples that I cite in the book, censorship is what most people think of as censorship, that sort of a prohibition on speech that someone or some institution wants to limit. Now, the public interest chapter is a little different in that it is more focused on the “affirmative” mandates of the public interest standard, those things that you should be airing.

And many people find that less threatening because it’s sort of a eat your vegetables, we know what’s good for you, kind of censorship, but I explore a number of ways in which it’s had really negative effects on the broadcast medium over the years, the decade of the vast wasteland speech in the 1960s was described by many as the blandest era for television in American history. We see now, and as you pointed out, we have so many different outlets for and so many media for receiving and transmitting information that it seems so anachronistic.

But now, you look at this explosion of video, this available video entertainment on streaming services, a proliferation, none of which are licensed or controlled by the federal government, and we have diversity like we have never seen, and many argue, as a new golden age for television, quality like we’ve never seen. So, the expectation of some that government regulation is necessarily to or would improve what we have available to us really hasn’t been borne out by history.

Nico: The golden age of television was sparked, many contend, by the creation of The Wire and The Sopranos on channels that were outside of the broadcast networks, featuring content that you probably couldn’t have shown on the broadcasting networks.

Bob: Oh, certainly featuring content you would never have been able to show on television.

Nico: And as a result, you see more of these morality plays, this human drama that draws so much of us into these stories and has really elevated the medium. And I think it’s interesting because you have this theory of the public interest, but it seems to be so divorced from what the public is interested in.

Bob: That’s right.

Nico: So, you worked on the Janet Jackson nipplegate case involving her and Justin Timberlake during the halftime performance. Many of our listeners and viewers will probably recall this. At the end of their performance, Justin Timberlake sings the lyrics, “I’ll have you naked by the end of this song,” and then pulls off a flap of some sort on Janet Jackson’s wardrobe, and it exposes a nipple, for what was it, 9/16ths of a second?

Bob: Correct.

Nico: And you write in your book, it was the most TiVoed moment in television history up to that point, and the most searched event online, according to Google.

Bob: That’s right.

Nico: CBS got fined for this. That’s how you got involved, as a lawyer for Davis Wright Tremaine, as a partner for Davis Wright Tremaine, but it just seems like, first of all, most people didn’t know what they were seeing, and to the extent they did or didn’t, they sought it out. It’s not like they wanted to put the blindfolds or the blinders over their eyes.

Bob: That’s right. I mean, for most people, it was a blink, and you miss it kind of moment. And so, people in living rooms around the country said what was that? And in real time, it was sort of a longshot of the stage at the end of the performance that again, it was hard to tell what was going on. The reason why it drew the FCC’s attention is because The Drudge Report, the very next morning, showed a closeup high-def photo of the two performers standing next to each other and reported falsely that this was something CBS had planned and approved.

And so, that’s when the FCC burst into action, had sent a notice of inquiry to the network within 24 hours. I mean, faster than it took for congress to declare war after Pearl Harbor in World War II, the FCC was on it, and they sent this detailed and lengthy notice of inquiry to the network. And then, as you say, I was engaged to help investigate what had happened, and then defend the network before the FCC.

Nico: Are there a deluge of complaints from the general public when they see, for example, something like the Janet Jackson episode, or when they hear, for example, George Carlin’s seven dirty words on the Pacifica radio station? It seems to me that they don’t. It seems like there are these purity crusaders like Anthony Comstock who seek these sorts of things out, and you actually talk about one organization, and its name is escaping me at this moment.

Bob: Parents Television Council.

Nico: Yeah, that would watch all television out there and log anything that fit some of these subjective criteria. I don’t remember them exactly. And then, urge people to complain about them. If I’m remember the George Carlin thing right, I believe it was a father who complained, hadn’t actually seen or heard the routine, but was nevertheless offended by it.

Bob: Well, it’s hard to say, whether or not the complainant for the George Carlin monologue actually heard it. The complaint came six weeks after the broadcast. It was a broadcast on WBAI in New York, a station that was hard enough to tune in that you almost had to have a safe hacker’s touch to turn the dial to get to it. But six weeks after the broadcast, there was a single complaint filed by someone, as it turned out, was the head of Morality in Media, or on the Morality in Media, and filed the complaint.

As you say, these advocacy organizations exist, in many cases, for the very purpose of censoring speech they don’t like, which is the Comstock model. Comstock was a vigilante that ultimately, later was empowered as a special agent of the Post Office to enforce the law against sending obscene materials or any, as the law read at the time, any immoral materials through the mail. And so, in the tradition of Comstock, being vigilantes, you have these groups being formed. That was the origin of the complaint in New York against the Carlin monologue, and it was the origin of the complaints against the Super Bowl incident in 2004.

As you say, it takes these kinds of organized complaint campaigns to whip up support. They exist for the very purpose of doing so. And so, Parents Television Council had been around for a few years but hadn’t really made much headway. And there was a growing interest by some in Washington and in congress, put some pressure on the FCC to enforce its indecency rules more. And right when they were looking at that issue and had had a hearing on that, three days later, the Super Bowl incident happened. And so, it took an issue that had some political momentum already and kicked it into hyperdrive.

Now, did a lot of people complain about the Super Bowl incident? I mean, the FCC claimed that there was a record number of complaints. As it turns out, Parents Television Council had created an automated online complaint system that would automatically forward complaints to the FCC, and then they lobbied the FCC to change the way they counted the complaints. So, for example, their automated system would allow you to send a complaint, whether or not you’d seen the show. And then, it would use its outreach to encourage all kinds of people to complain.

And like a multiheaded missile, those complaints would then fragment and be sent to multiple offices within the FCC. They would be sent to all five of the commissioners. They would be sent to the enforcement bureau. They would be sent to the media bureau. And so, each of those complaints because of the way the FCC began to count them after they were lobbied, each of those counted as a separate complaint.

So, not only were the complaints sort of an AstroTurf to begin with, they were essentially at the behest of this organization, but then they were counted five and six times, once they got to the commission, after the Super Bowl incident. And this is according to information released by the FCC under the Freedom of Information Act, 99.6 percent of all the complaints that the FCC received came from these organized complaint campaigns. So, it made it look like there was a groundswell of public support when at least in the case of the Super Bowl, most people said what was that?

And an Associated Press poll taken after the FCC investigation began found that 80 percent of the public thought that the investigation was a waste of taxpayer dollars. Yet, again, this is the way these things are lobbied. And it’s one of the reasons why in the book, I focus on the censors, what motivates them, and what tactics do they use to promote their various agendas.

Nico: You write in the book that purity crusaders claim to hate the stuff they wanna suppress and argue that it will ruin all who are exposed, but invariably, they can’t get enough of it. They search it out, collect it, study it, categorize it, archive it, as in the case that you discussed, archive it, talk about it, and display it to others, all for the ostensible purpose of making such expression cease to exist. This reminds me of a story related by the late Christopher Hitchens, in which he talks about Samuel Johnson, who was the great lexicographer, put together the first dictionary and was a Londoner, or he was part of England – lived in England, excuse me.

And after he put together the dictionary, he was visited by the most respectable women of his community. And they come to him, and they say, “Mr. Johnson, we commend you for this magisterial work, and we also commend you for not including any indecent words in your dictionary.” And Samuel Johnson retorts, “Well, I commend you for knowing where to look for them,” which kinda tells you everything you need to know about, in certain cases, the mind of the censor. There is something about the human psyche that wants to see these things, that is drawn to controversy, and they’ll search them out.

And there’s probably no better example in your book of the case of the Kingsmen’s rendition of “Louie Louie.” So, can you talk a little bit about that one? Because that’s probably – I had not heard this story before, and this one blew me away. The amount of time the FBI spent investigating that song and parsing the words is just incredible.

Bob: It’s one of my favorite stories in the book, and it appears as sort of a flashback sequence in the chapter on music censorship because again, I focused that, as you pointed out earlier, on the 1985 rock music hearings, where every 12 minutes or so in this four-hour hearing, someone would say this isn’t about censorship. And the other thing that they would claim is we’re targeting this music because it is unlike any phenomenon we have ever seen before. Rock music was never like this, and no one reacted to it, which is exactly the opposite of what is true.

Rock music was always considered to be a threat because it excited the children, and the parents didn’t know what to make of it. And so, they inherently saw it as a threat. And so, one of the examples in a flashback I go to is the panic over the song “Louie Louie” by the Kingsmen in 1963

[00:35:47]. And what people don’t realize is that for about two and a half years in the mid-1960s, the FBI conducted an intensive investigation, whether or not the song “Louie Louie” contained obscene lyrics.

Now, I had known about this, and in fact had gotten a copy of the Freedom of Information Act file on the “Louie Louie” investigation that I just had sort of laying around and had read it before. And it was only when I was writing the chapter on music censorship that it came back to mind. And I thought, that’s interesting. That will fit in. And so, I had intended to write about two or three paragraphs maybe on the “Louie Louie” controversy. But as I started writing it, there was just so much there, and it was so, to me at least, interesting that it just kept going.

And so, in the book, it goes on for about eight or 10 pages, talking about this investigation. And what’s fascinating about it is that for this long period of – went on for years. The FBI, through six different field offices, poured over these lyrics. They had agents listening to it at different speeds. They listened to it backwards. They turned over every rock and couldn’t figure out whether or not the song “Louie Louie” contained filthy lyrics.

Nico: Because if you hear it, the Kingsmen, they kinda slur their words. It’s not clear what they’re saying.

Bob: Well, they do, and there’s a reason for that. And the reason is the song was recorded in one take in a little broom closet of a recording studio. And there was a single microphone that was hung from the ceiling. And the lead singer had to stand on his tippy toes to try and sing up into the microphone. And to make matters worse, he had just gotten braces that week. And so, he was kind of slurring his words. And so, you don’t know really what it’s about.

And it was about a year and a half into the investigation when some rocket scientist at the FBI decided maybe we should check the lyrics at the copywrite office because the lyrics will be on file. So, they did, and looked at the lyrics, found nothing salacious at all. It was a homesick sailor’s lament about getting home to his girl. And so, you would think that the investigation would end there, but no, it went on for at least another year until finally, they closed it out, saying that they really couldn’t find, they couldn’t really make out anything intelligible.

Now, there are a couple of other really interesting features about this. First, the personalities involved. I mean, one of the first complaints was sent to Robert Kennedy when he was attorney general, claiming that something had to be done about this terrible song. J. Edgar Hoover got involved in the investigation and corresponded with some very upset parent’s groups who had to do something about it. The governor of Indiana had issued a statewide ban on the playing of the song.

So, there was all this going on in the background until finally they decided that there was nothing there, but the other irony is this. The word fuck does appear in “Louie Louie,” not as part of the lyrics, but about a minute into the song. The drummer during the recording dropped a stick and uttered the word fuck. It’s really indistinct, and it’s in the background, but if listen for it, at about 57 seconds in, you can hear it, but no one who was investigating the song caught that because they were listening for the lyrics.

And those who were convinced that the lyrics were obscene were sure that they heard something in those garbled lyrics that was obscene but never noted the actual word that was there. So, it’s really a fascinating study of human nature, where if you know what you’re looking for, you’re pretty sure to find it, but if you aren’t, then you won’t see it.

Nico: Yeah, and you write this, that censors or would be censors often bend over backwards to try and find indecency or salaciousness where it may or may not exist. And oftentimes, you can conjure up some sort of strained argument to find indecency or salaciousness in places, but you really need to bend over backwards, or get on your tippy toes to look over you neighbor’s fence to find it. But as in some of the other examples you cite in your book, looking at the mind of the censor, one of the censors in this controversy, Indiana governor, Matthew Welsh came to regret his efforts while in office to try and get the song off the radio.

And he said later in the 1991 interview, this is almost 30 years after the controversy, says, “This wasn’t censorship,” you write. “Welsh insisted as he had merely suggested to Chapman,” I believe one of the broadcasters, “that ‘it might be simpler all around if the song wasn’t played, but it doesn’t take a First Amendment scholar to see the contradiction,’ Marsh concluded, ‘for if a record isn’t played at the suggestion of the state’s chief executive, it has been banned.’”

Bob: I mean, again, it’s the example of where censors often come to regret their role in these controversies, once they are shown from the perspective of history, just how silly they were, just as Al and Tipper Gore came to regret their participation in the 1985 hearings, particularly when Al was considering running for president and had to go out to Hollywood to do fundraising. Some people weren’t as convinced that he was just sort of drawn into it by happenstance. And so, they had a lot of explaining to do.

Nico: Yeah, and I should say, I think my contextualization of Governor Matthew Welsh’s explanation there was off. It sounds like he did later recognize that it was censorship, but at the time, he tried to contend it wasn’t.

Bob: I don’t think he ever really recognized it was censorship, but he just tried to play it down and say that it was much ado about nothing. But again, at the time, he said the “Louie Louie” was so obscene, it made his ears tingle. And so, he called the head of the Indiana Broadcasters Association and said they’d be better off if nobody plays.

Nico: Yeah, but now everyone plays it. This is so much a feature of some of the works that get censored or attempt to be censored. You write, “In the end, defenders of ‘Louie Louie’ got the last laugh. April 11th is listed in the National Special Events Registry as International Louie Louie Day, and states of Washington and Oregon have proclaimed their own observances of ‘Louie Louie’ Day. The city of Seattle has done the same, and Tacoma, Washington sponsored its annual LouieFest from 2003 to 2012.” And then, the rest of the paragraph goes on to talk about all these other municipalities that celebrate the song, “Louie Louie.”

And you actually, in the context of Comstock, quote H.L. Mencken, saying, “’that the old imbecile,’ referencing Comstock, ‘did more than any other man to ruin Puritanism in the United States,’ and that he, ‘liberated American letters from the blight of Puritanism.’ Mencken summed up Comstock’s accomplishments as ‘at best laughable, and at worst revolting.’ After Comstock, it became increasingly difficult and is not virtually impossible for an American organization to overtly claim censorship as its avowed purpose.”

Bob: Which is what the censor’s dilemma is about. I mean, there’s no lessening of an interest in censorship, but there’s an increasing inability for these advocacy groups to actually embrace the mantle of censorship. They have to say that they were doing something else. And as the example of “Louie Louie” points out, usually, their actions are counterproductive in that they tend to make the material they want to censor more popular and more available.

And it’s been true ever since Comstock and probably was true before him, but there’s something that I describe in the chapter on Comstock’s legacy that I call the Comstock effect. It’s sort of a Victorian era version of the Streisand effect, where if you’re complaining about something, you only make people curious and want to see it. And so, I give a number of examples of that. For example, the Paul Chabas masterpiece, September Morn, which was a painting from the early 20th century that had been in the Paris salon and had gotten some notoriety, but that Comstock got press in trying to take it out of store windows.

And so, between that controversy and others, the painting became wildly popular. He tried to censor George Bernard Shaw’s play, Mrs. Warren’s Profession, and had sent a note to the theater owner in New York saying that they should not show it. And so, the theater owner recognizing that there would be good publicity, sent a note back inviting publicly, Comstock to come to a rehearsal so that he could see the play. And so, back and forth in the press made the play so popular that the police had to call out the reserves on opening night to manage the crowds. And so, you often have this kind of effect.

The record labeling controversy in the 1980s, the explicit lyrics label has been used by artists to promote their work. 2 Live Crew, when it performed at the VH1 Music Awards in, I think, 2001 or 2 had the label as the backdrop on the stage. And now, it’s considered to be kind of a joke. The efforts to censor comics ultimately failed, even though they had a devastating effect on the industry at the time. Now, I mean, it’s hard to get a movie made in Hollywood if it doesn’t have a cape. And so –

Nico: And you have George Carlin, for example, putting it on the cover of his records.

Bob: Exactly.

Nico: Here’s the brief, 2 Live Crew performing at the VH1 Hip Hop Honors.

Bob: Yeah, and so you frequently find this to be the case, where the efforts to censor not only are ridiculed and become the source of everyone else’s amusement, they are counterproductive in that they make the works more popular. And I also discuss the legal effects in that the organized efforts to censor, and particularly beginning with Comstock, ultimately lead to a pushback and a creation of First Amendment theories that ultimately were embraced by the court and led to a protective environment for speech that would have horrified Comstock and couldn’t have been envisioned by him.

Nico: A couple episodes ago, we explored the life of Morris Ernst for who – and you have in the book, saying that nobody did more to sell sex in America than Anthony Comstock.

Bob: Absolutely. He was, as one writer described him, the best press agent for sex it ever had.

Nico: So, we’ve talked a lot about the 20th century here. We talk about how censorship doesn’t have cultural capital, about how a lot of what we’re discussing involves content that is progressive, the idea of television, and radio, and cinema, and heavy metal music. I mean, it’s progressive in the sense that these are new media, the kind of play that are welcomed and brought forward by America’s youth. It’s almost transgressive. You get kind of a youth rebellion feel from the internet, from heavy metal music, from video games, jazz music for example, comic books.

I mean, all of us were teenagers at one point. We rebelled against the power or the authority figures, in many cases, our parents. And then, once these then teenagers become adults, we look back on the efforts to censor these new media as being antiquated and silly, and look at, we all survived, and the sky didn’t fall. But today, the calls for censorship are shifting and almost being embraced by a younger generation.

You write in your book, “Contrary to the thesis of this book, current trends in academic suggest that there is no longer any reticence about censorship, particularly among those who embrace the notion that the First Amendment does indeed go too far. Such unapologetic endorsements of the need to suppress disagreeable expression seem to contradict the premise that censors in a free society are embattled and defensive. Are these the exceptions that prove the rule?”

We can look at the Netflix controversy surrounding Dave Chappelle. I think it’s fair to say that a lot of those protesting Netflix and seeking to get a piece of art, comedy – and if you watch the special, it is art.

Bob: It’s awesome.

Nico: Yeah. You also have the transgender rights activists protesting, but I think there’s more support of it by the younger audience rather than the older audience that can maybe recall Richard Prior and George Carlin, for example. And you talk at the end of the book about how these younger or modern censors differ from the older ones that were in involved in the examples we’ve discussed, so if you could talk a little bit about that and how they differ.

Bob: Well, I think the point is they don’t really differ. And I don’t see them as exceptions that prove rules. First, exceptions don’t prove rules. They test them. And I think what we’re seeing among today’s advocates of restricting speech of various kinds is the vehemence and anger of their reaction to that speech is just a new manifestation of the censor’s dilemma. And it’s not so much that they are furtive about censorship. They’ll embrace that. What they will say is that’s not free speech, and they will try and denigrate the very concept of free expression in justification of what they’re doing.

So, they embrace the idea of restricting what it is that offend them, but they will just either say it’s not speech, while trying to characterize it as violence or as something else, use some sort of metaphor to transform what they are doing into an act of restrictive speech and into something that serves their particular purpose. And one of the reasons that I focus on the things that I did in the book, it seems like I’m focused mainly on censorship of entertainment or cultural issues, but I wanted to explore how censorship developed in the years before we started seeing it as a legal issue in protecting anti-war demonstrators in World War I.

And so, as that, for many people in the United States, they see First Amendment law as something that began in the 20th century. It began around World War I, but in fact these battles over censorship go back and a primary focus on the era of Comstock because certainly he wanted to restrict what he saw as obscenity, but that was a very broadly based concept. He used that to prosecute doctors who provided too much medical information, anything involving abortion or contraception. He prosecuted free thinkers. It was a broadly based notion of cultural censorship. And so, it was only in pushing back against that that we saw the law of free speech develop in the 20th century.

And what we’re seeing today is really another manifestation of that kind of Comstockian mindset but simply focused on different issues because those different issues are the ones that upset modern censors. And so, they’re really no different from Comstock. They just chose a different subject on which to focus their ire.

Nico: You mentioned that you focus on entertainment in this book, and I’m happy you do because so often our discussion of free expression delves into political expression, which is of course important, but so much of what makes life interesting and worth living lives in the world of entertainment, jazz music, video games, the internet, music in general, movies, the radio. I mean, that’s what people really love, and it’s a shame now and throughout history that people seek to censor, or get rid of it, or in this case, just eliminate a comedy special that, and this is worth noting, 96 percent of the American public enjoys, if you look at Rotten Tomatoes.

So, Rotten Tomatoes has this thing where it gives you the ratings from critics and the ratings from the general public. Last time I checked, the ratings for The Closer, which is Dave Chappelle’s most recent comedy special are something like 30 percent from critics. It was 96 percent approval from the audience, which just, it tells you all you need to know, and I think speaks to the idea that a lot of these censors are of a minority opinion within the country as a whole, but they’re very vocal in their distain and efforts to censor the expression.

And the rest of us, especially if they’re willing to throw around phrases, or sexist, or transphobic, just say whoa, okay, this conversation isn’t worth participating in, so I’m just gonna watch The Closer in the privacy of my own home and stay out of this debate.

Bob: And I take your point about the different rating systems on Rotten Tomatoes and elsewhere too. And then, I really like the idea that they have divided it between the critic score and the audience score because I always have to look at both in figuring out what I think the rating might mean. And sometimes, a high critic score and a low audience score is an endorsement of a work, and sometimes it works the other way, as in the case of Dave Chappelle’s The Closer, which by the way is absolutely brilliant as a piece of art.

For those people who are complaining about it and using words like transphobic to describe it, I think they haven’t really listened to it. And by the way, one of the things I do talk about in the book is using terms denoting mental illness to describe phenomena that you simply disagree with, homophobic, transphobic, the idea that someone who is thinking wrongly is somehow mentally ill is the hallmark of authoritarian and totalitarian governments. It’s what China has done routinely with dissidents and still does. And the Soviet Union had a terrible history of confining to psychiatric institutes of political dissidents.

And so, I wish there were better words than transphobic or homophobic to describe people who don’t like homosexuals or have a problem with transsexuals. I think the use of phobia is really unfortunate and really does tap into the authoritarian mindset.

Nico: At the end of your book, you have a chapter, or a subchapter called “Knowing Them When You See Them.” And it lists out 10 different criteria for what a censor might be or how they act. And No. 10 is you might be a censor if you equate speech you oppose with mental illness. And unfortunately, we’re seeing a lot of these trends, and you speak to it, manifest themselves in academia. And just in the last week, we’ve seen a number of ridiculous examples of would be censors, or in some cases actual censors bending over backwards to find justification for censorship or offense.

For example, we have a case at Coastal Carolina University involving a professor who taught a theater class. And prior to his class arriving, a previous professor had met with a bunch of students of color, and they were hoping to find other students of color that they could meet with. And so, they had written those student’s names on a whiteboard. And when this professor and his students have arrived, the students saw those names and thought someone was singling out students of color on campus.

And as a result, this professor has been vilified, thinking that he was the one singling them out for malicious reasons, but no, it was not malicious at all. It was actually trying to find friends, and they just forgot to wipe it down. And when he was approached by it, he said, “Sorry, but I don’t think it’s a big deal. I’m just sad people get their feelings hurt so easily.” And he asks rhetorically, “And they’re going into theater?”

And then, you have Bright Sheng over at the University of Michigan who is a MacArthur genius, a world-renowned pianist, survived Mao’s communist revolution, and had his piano taken from his family when he was young because Mao thought having pianos in the home was bourgeois. He survived that, but then he came to University of Michigan, and in the last couple of weeks, or maybe it was last couple of months, he showed Lawrence Olivier’s famous 1965 version of Othello, where Lawrence Olivier wears skin darkening makeup to play the moor.

And his students got offended. He was kicked out of his classes. And thankfully, we got involved, and the formal investigation was dropped, but it just seems like people are looking – and then, Dorian Abbot, Massachusetts Institute of Technology was set to give a speech about the climate on other planets and whether it’d be hospitable to humans. And he was disinvited because he also has a position that isn’t conformist on diversity, equity, and inclusion programming, and affirmative action on campus. So, it just seems like there are two taboos today, and maybe not the same taboos as yesteryear. And the censors are exercising censorship in similar ways.

Bob: Well, yeah, and that’s one of the things that I try and point out in the book. Different issues, same tactics, and same mindset. I mean, that is the mind of the censor. And that’s how I contrast what I describe as the culture of free expression, or the spirit of liberty as opposed to the mindset of the censor. And again, it is governed by knowing it is you want to censor, being absolutely certain that you are right, not just for yourself, but for everybody else, and that you contrast that with a spirit, which I think the First Amendment was based on.

And that is a notion that even for those things that you disagree with and strongly disagree with, that it is better for everybody to allow those things to be said, and to allow people to make their own evaluation of whether or not they agree with it.

Nico: So, I think we’ll leave it there, as my printer starts cleaning itself over here on my desk. When does the book come out?

Bob: November 4th.

Nico: So, that’s next week.

Bob: Yes.

Nico: So, go out and buy it, right?

Bob: Yeah. It would make a lovely Christmas gift.

Nico: I really enjoyed the book. I learned a lot. In particular, that “Louie Louie” story just fascinates me. And the book is worth the price, just for those 10 pages alone.

Bob: I wrote it not to be a law book, and yet for those who are interested in following the law, it should have a lot there that people can take from it. It is not just a book of First Amendment stories, but it can be. It’s really meant to be read and appreciated or enjoyed by anyone who has any interest in these issues at all.

Nico: And just a reminder to our listeners, that book is called The Mind of the Censor and the Eye of the Beholder. It’s available on November 4th, so pick it up wherever books are sold. I found often that with Amazon, if you order a book early, you preorder it, usually it arrives before the release date, so go out and get it. And Bob, thanks again for coming on the show. I think you might be our most frequent guest. And so, I appreciate you always lending your time to us.

Bob: Well, Nico, it’s always a pleasure, and maybe next time we’ll be able to do it in person.

Nico: Yes, hopefully so. Well, that was Bob Corn-Revere. Again, he is the author of the book, The Mind of the Censor and the Eye of the Beholder, and he is a partner at Davis Wright Tremaine.

If you enjoyed this show, please leave us a review wherever you listen to your podcasts, Apple Podcasts, Google Play. Reviews are the single best thing that you all can do to get more listeners on the show. This show is again produced and hosted by me, Nico Perrino and edited by my colleague, Aaron Reese. We are on Facebook. We are on Twitter, if you wanna learn more about the show. And if you have feedback for us, you can reach us at sotospeak@thefire.org. Again, that is sotospeak@thefire.org. And until next time, I thank you all again for listening.