The Borkean Case Against Robert Bork's Case for Censorship
George Mason University - Antonin Scalia Law School, Faculty
ESSAYS IN HONOR OF JUDGE ROBERT H. BORK, Harvard Journal of Law and Public Policy, Vol. 31, No. 2, pp. 511-518, Spring 2008
George Mason Law & Economics Research Paper No. 08-27
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.
Number of Pages in PDF File: 9
Keywords: Bork, censorship, crime, culture, cultural regulation, economic regulation, Gomorrah, government, illegitimacy, interest groups, opposition speech, private sector, sexually explicit, social pathology, values, violence, welfare dependency
JEL Classification: K20, L5, Z10
Date posted: May 22, 2008 ; Last revised: July 30, 2008
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