Salient. An Organ of Student Opinion at Victoria College, Wellington, N.Z Vol. 3, No. 5.
On Wednesday, May 29, Mr. W.J. Scott, lecturer in English at the Wellington Teachers' Training College, gave a talk on censorship to the Phoenix Club. A most interesting address, it contained some very important material. Mr. Scott took no side in the matter, but he gave the meeting much food for thought. The best account of his address can he given by quoting directly from Mr. Scott's script:
Most of the legal restrictions are, it should be noted, negative forms of propaganda. For, while the purpose of propaganda is to create, maintain, and strengthen given creeds, that of the censorship is to prevent ideas likely to weaken public acceptance of those creeds from being circulated. As it exists today censorship is mainly a function of the State; organizations within the State (a Church, for instance, or a Morality Council) that wish to prohibit the spread of ideas hostile to them, can do so only if they can persuade the Government to take legal action. There was a time when the Church could impose an effective censorship, a time when it had the power to punish for heresy. But it long ago surrendered this power of coercion to the State, which now exercises final control over the various existing instruments for the spreading of ideas - film, play, books and pamphlets, radio, public meeting... This is true today of all States, the most liberal and democratic as well as the most autocratic.
The means by which the censorship is effected are familiar to most people. In New Zealand we have a Film Censor appointed by the Government to examine all films entering the country, with power to reject all or part of any that he considers undesirable, and officials connected with all the radio stations to do the same with the scripts of talks or plays. With books and pamphlets, and plays, however, the procedure is either for the Customs to seize any material considered by the Minister of Customs to be seditious or indecent, or for the police to take action, usually after receiving information from groups or individuals, or in obedience to instructions from the Minister of Justice. Their action is then either confirmed or repudiated by the Courts.
The Laws of Libel : Some Opinions.
|(1)||"The Law of Libel has become the journalists' nightmare and the breeding-ground for a new type of legal racketeer who lives on a species of blackmail paid out by newspapers" - Kingsley Martin.|
|(2)||"The writer (like the rest of the world) does not dare to write a word which may damage the earning capacity of a grocer, motor-manufacturer or doctor; but any corner boy may write to the papers and say that he does not know his business, that his plays are twaddle and his books are foul.... The newspapers, smarting under flimsy and even blackmailing claims, are in the same camp as the author and have the same reason to complain of a law which lets one man steal a horse and condemns another for looking over the hedge" - A. P. Herbert, M. P.|
|(3)||"The extent to which the law of libel can and does stifle the press is proved by the fact that the recent munitions inquiry in the United States could and did publish specific accusations against specific individuals and companies in England which were reproduced all over the world - but which could not be either reprinted verbatim or commented on in this country for fear that libel actions might ensue" - Jane Soames, in "The English Press"page break|
|(4)||"The essential weakness of the law of libel is its inherent and unavoidable vagueness..... Whatever the law of libel should provide, few can favour a law which in its operation so clearly resembles a 'lucky dip'" - P.E.P. "Report on the British Press".|
|(5)||"The law of libel, and particularly seditious and criminal syndicalism statutes, are the means or achieving two anti-social results. On the one hand they enable those in power to throttle, or attempt to throttle, not only the dissenting minority, but any articulate nonconformist. On the other hand they are obstacles in the way of innovation and improvement" - Ernst and Lindey in "Hold Your Tongue".|
From these quotations it would appear that authors, journalists, and publishers are not satisfied with the present state of this law, The new type of legal racketeer mentioned by Kingsley Martin is the "gold digger" who ferrets out minor, and usually unintentional, breaches of the law of libel, informs the libelled person, and offers to conduct his case for him. Most of these cases, and they are many, are settled out of court, newspapers preferring to pay out rather than fight them. The fact that this underhand procedure is possible and profitable is in itself proof of weaknesses in the law.
The law of libel was, of course, designed to protect the individual's personal and professional reputation from malicious attack. One reason for the very heavy damages juries frequently award against newspapers charged with libel is the widespread resentment against the press for its prying into the private affairs of people and, by its publicity, causing them much embarrassment and pain. During recent years many observers have commented on the strong hostility felt by members of the House of Commons towards the popular papers, which any most. However justified such feeling may be, it should not blind them, or us, to the fact that the law of libel at present acts as a strong curb on fair comment as well as foul.
The Effect of the Law:
Eroadly speaking, the law as it at present operates has two main effects; at protects the man with moans from fair as well as unfair Comment, and it checks the publication of anything damaging to the Government in power or the existing state, of affairs in general. Unable to face the heavy cost, of a trial the man without much money who might wish in the public interest to publish some facts about a rich man, is compelled to keep silent. On the other hand, if the rich man libels the poor man, he again has the advantage; for he can afford not only the cost of the trial but also the cost of an appeal. The general position can be well summarized by two quotations from articles, the first by Professor J.B.S. Haldane, and the second by D.N.Pritt, K.C. What they say is of great importance, and it is worth studying in detail the implications of their statements.
1. (Haldane) "Enormous sums are spent in advertising medicines and health foods which are generally useless and often dangerous. A widely advertised vitamin preparation contains, besides vitamins, a substance definitely injurious to children. Under the law of the land I might have to pay thousands of pounds in damages if I mentioned the preparation in question, even if my statement were true, On the other-hand I am at liberty to say publicly that diptheria antitoxin is useless, which is a plain lie".
2. (Pritt) "All recent experience shows that freedom in discussion is, in fact, so severely limited that critical writing has become a dangerous trade. Any attempt to write a full critical account of, or comment on say, trusts, armaments, company promoters, food adulteration, conditions of labour, or slums, or any big industry, of the public school system, or of Colonial page break administration, will confront the writer who nourishes any hope or desire of having his comments published with difficulties at every step. He may think that, as Libel is in its essence an attack on the reputation of individual persons or companies, he is at liberty to criticize a class, or a system, or a whole branch of industry; but he will soon learn that if any one person or corporation is sufficiently prominent in the class, the system, or the industry to be thought to be the target of criticism, an action of libel by that person or corporation will be very likely to succeed".
Essential reforms in the laws of libel are (1) the abolition of the power to award damages where no financial loss has been sustained, a plaintiff who has suffered defamation of character being given a declaration clearing his character which the libelling newspaper would be compelled to print in a form prescribed by the Court; and (2) the codification of a simplified law in one clear Act of Parliament.
The Laws of Obscene Libel.
We come now to a subject that is highly controversial, one that has, in fact, been more hotly disputed than any other concerning the restrictions on freedom of expression. It is an interesting fact that State concern with obscene matter in print, and its possible effect on people's minds, is of fairly recent origin. There were no laws of Obscene Libel in Shakespeare's, or even in Bunyan's or Swift's day. The earliest prosecutions for obscene libels occurred in the 18th century, and were directed against works that were held to threaten religion, "that great basis of civil government and society", and so cause a breach of the peace. During the 19th century, however, the emphasis was shifted, by two important judgments and an Act of Parliament, from the social (the objective) to the individual (the subjective). The first judgment was that of Lord Campbell which resulted in the Obscene Publications Act of 1857. Campbell gave an assurance that this measure was "intended to apply exclusively to works written for the single purpose of corrupting the morals of youth and of a nature calculated to shock the common feelings of decency in any well-regulated mind". The Act, therefore, was aimed at pornography, if pornography be defined as the production of works whose main purpose is to excite sexual passion. Against such an Act serious literature could have little complaint because it could never have a purpose of this kind, and hence would be immune from prosecution and prohibition. Unfortunately, it was succeeded in 1838 by the Cockburn judgment which laid down the test of obscenity as "whether the tendency of the matter charged... 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". As a result of this and one later interpretation, reference to the purpose of the author or publisher became irrelevant to the question whether a publication was obscene. It was henceforth simply a question of the possible effect on susceptible minds. It is this definition of obscenity that is applied in English law today.
The Dizzy Heights of Absurdity:
Considered dispassionately, this interpretation is soon to be absurd and quite incapable of consistent application. If notice is to be taken, not of the purpose of the author, but only of the possible effect of his work on susceptible minds, then obviously large numbers of books of English literature - among them some of the best - must be condemned as obscene. For they contain words and passages that would have a sexually disturbing effect on some page break minds. The Oxford Dictionary, the Bible, Shakespeare's plays, Gulliver's Travels, Tom Jones, Burns' poms, the School for Scandal, and the Family Doctor, are all books that we know have been searched avidly for their erotic passages by the young - and by adults as well. Many others, past and present, could be added to the list. According to Cockburn's definition, all of them, and countless others, are obscene publications!
No One Knows:
Since "obscenity" cannot be precisely defined, it follows that there can be no agreement as to what it is. Opinions vary not only from period to period but from country to country. The former fact is illustrated by the frequent lifting of the ban on an obscene publication in subsequent years. For instance, Shaw's "Mrs. Warron's Profession", and "The Showing Up of Blanco Posnet", Sophocles' "Oedipus Rex" (in translation), Granville Barker's "Waste", Wilde's "Salome", Strindberg's "Miss Julio", Van Druten's "Young Woodley", O'Neill's "Desire Under the Elms", Pirandello's "Six Characters", Lawrence's "Rainbow", Joyce's "Ulysses", as well as several others, were at one time forbidden publication or sale, only to be freed from the ban at a later period. An interesting illustration of the second fact - the difference of opinion in different countries - is the fate of the "Well of Loneliness", which was banned in Britain but not in the United States of America, and Walt Whitman's "Leaves of Grass" with which the reverse happened. A charge was actually brought against the "Well of Loneliness" in America but it was unsuccessful. The fate of "Ulysses" is another example. Banned in both America and Britain when it was first published, it was admitted into the former country following the famous judgement of Judge Woolsey in 1934. Not until 1938 was a limited edition brought out publicly by a British firm. "The obscenity of to-day", it has been said, "will be the propriety of tomorrow". The reference, of course, is to the "obscenity" in books with a serious purpose, like "Ulysses" (described by Judge Woolsey as "a sincere and serious attempt to devise a new literary method for the observation of mankind"). It does not include porno graphic books.
The Sincere and Able Penalized:
The extreme inconsistency of its application is also hard to defend on moral grounds. Earlier in this course it was claimed that the press will publish accounts of crimes and misdemeanours but will not allow an honest discussion of their nature and causes. The same criticism applies equally well to the theatrical censorship and, to a lesser extent, to the censorship of books. On the stage, and in the film also, sex themes may be presented without danger of censorship if the treatment is light and humorous. Under these conditions references to adultery, prostitution, lapses from virtue, and so on, may safely, and successfully as far as the reactions of the audience are concerned, be made. But let the serious artist present the same themes with some of their main implications as they appear to him, and the chances of the censor's interference, and of objections from the audience about "immoral", "disgusting" and "obscene" plays, are much increased. Especially with the drama the experiences of the last fifty years show that the serious works written by some of the ablest of modem authors (Shaw, Granville Barker, O'Neill, Edward Garnett, Maeterlinck, Pirandello) have suffered more from the censor's ban than have the flippant, lightly-written ones that skate skilfully over the surface of sex without raising troublesome thoughts in the theatre-goer's mind. As one who has suffered from the censor, Bernard Shaw expresses his strong disapproval of the way the censorship works. "The Lord Chamberlain (i.e. the British Censor) dare not attempt to exclude from the stage the tragedies of murder and lust, or the farces of mendacity, adultery and page break dissolute gaiety in which vulgar people delight. But when these same vulgar people are threatened with an unpopular play in which dissoluteness is shown to be no laughing matter, it is prohibited at once amid the vulgar applause, the net result being that vice is made delightful and virtue banned by the very institution which is supported on the understanding that it produces exactly the opposite result". Shaw's statement of the position is not quite fair, since only a few of the ably-written and truthful plays are censored; it is not true to say that all such plays are "prohibited at once". But that the capricious operation of the censorship has done something to cow both good dramatists and good novelists, and dealt more lightly with the treatment of sexual themes when it has been flippant than when it has been sober, are facts the evidence will not permit us to dispute. A law that is not consistently and fairly applied cannot be considered a good law.
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The meeting closed with questions and discussion by the audience and an appreciative vote of thanks was passed for a very interesting evening. It is to be hoped that the Phoenix Club can arrange more talks as worth while as this one. The audience on Wednesday suggests that there would be support to justify the effort.