A Borkean Critique of Robert Bork's Case for Censorship:

Last summer, I was part of a Federalist Society symposium on the work of Judge Robert Bork. The presentations from the conference have now been published by the Harvard Journal of Law and Public Policy. I was on a panel considering Bork's controversial 1996 book, Slouching Towards Gomorrah: Modern Liberalism and American Decline, which argued that extensive government "censorship" (Bork's term, not mine) of sexually explicit, violent, and other harmful media is essential to curbing various social pathologies. My brief symposium essay critiquing Bork's argument is now available on SSRN. Here's the abstract:

In his controversial 1996 book Slouching Towards Gomorrah, Judge Robert H. Bork argued that we must adopt extensive censorship of violent and sexually explicit media in order to combat social pathologies such as crime, welfare dependency, and illegitimacy. In this brief essay, I argue that Judge Bork's call for censorship is in tension with his own earlier influential scholarship pointing out the dangers of government economic regulation. Cultural regulation poses many of the same risks that Bork highlighted in his critiques of economic regulation and also some unique dangers of its own. Like economic regulation, cultural regulation is prone to capture by interest groups and to overexpansion. In addition, the government will often be tempted to use cultural censorship to promote its own ideology and repress opposition speech. Both American history and modern European experience support these conjectures. Moreover, events since 1996 show that censorship is not necessary to combat the social pathologies that rightly concerned Bork and other conservatives. Over the last 15 years, there have been great reductions in social pathology without any increase in cultural censorship. In the long run, conservatives and others would do well to rely on private institutions rather than government to promote desirable cultural values.

In an earlier panel at the same symposium, Judge Frank Easterbrook summarized Judge Bork's outstanding work on antitrust regulation as showing that government should not "second-guess" markets. In my view, this point applies just as readily to government regulation of the culture.

I thank the Federalist Society for including me in this event despite (actually, because), of my strong disagreement with Judge Bork's views on the issues discussed by our panel.