Works By John Courtney Murray, S.J.

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The Bad Arguments Intelligent Men Make1

John Courtney Murray, S.J.

In 1956 Murray published his 1956e: "Questions of Striking a Right Balance: Literature and Censorship" that became one of his most republished articles and eventually chapter 7, "Should There Be a Law: The Question of Censorship" in WHTT. The problem guiding the article was a boisterous national movement, often led by Roman Catholics, to restrict access to "adult" literature. Murray offered four procedural rules for dealing with the problem:
(1) each minority group has the right to censor for its own members . . .; (2) no minority group has the right to demand that government should impose general censorship . . . [where] judgments of harmfulness [are not shared generally]; (3) any minority group has the right to work toward the elevation of standards of public morality . . . by the methods of persuasion and pacific argument; (4) no minority group has the right to impose its own religious or moral views on other groups, through the use of the methods of force, coercion, or violence (1956f, 168).

To Murray's apparent chagrin, those rules were picked up by John Fischer in a broadside against some methodologies used by Catholics. The following is Murray's response to Fischer's editorial—Editor.

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From his "Editor's Easy Chair" (Harper's, October, 1956) John Fischer looks out and see "immeasurable damage" being done "to the American way of life and to the very foundations of democratic government." This has become a familiar vision; many of us share it. But we frequently differ on the question, who or what is doing the damage?

In Mr. Fischer's view the damage is being done by "a little band of Catholics" who are "conducting a shocking attack on the rights of their fellow citizens" through the medium of an organization called the National Organization for Decent Literature, which undertakes to "censor" certain publications.

WHERE RATIONAL DISCUSSION BEGINS

I take a rather broader view. I see a large band of people, of all faiths, who are conducting a shocking attack on the reason of their fellow citizens through the medium of passionately irrational argument about important public issues. I believe that nothing is more damaging to democracy than lack of rationality in public argument. The foundations of our society are indeed laid in an identifiable consensus. But they are more importantly laid in a reasonable disposition to argue our many disagreements in intelligent and temperate fashion, using restrained language, avoiding misstatements, overstatements or simplifications, and endeavoring to define issues with precision in the light of all the relevant principles and facts. I believe that whatever corrupts rational public argument corrupts democracy.

It has seemed to me that censorship is one of the public issues that are being deformed by bad argument, emanating from all sides. Hence on May 4, 1956, in a talk given before the Thomas More Association in Chicago and printed in the organ of the Thomas More Book Shop, Books on Trial, I made an attempt at a contribution to good public argument on this difficult subject. Part of my argument consisted in stating four practical rules that should govern the action of minority groups in a pluralist society, in their legitimate efforts to improve public morality. These rules were not original. I had seen them stated in substance in a news release of a paper given at Marquette University on March 1956 by Prof. Vernon J. Bourke of St. Louis University.

Mr. Fischer quotes my statement of these four procedural rules in support of certain conclusions of his own with regard to the activities of the National Organization for Decent Literature. Perhaps Mr. Bourke will undertake to say whether, and how far, Mr. Fischer's conclusions follow from the four norms of action for whose formulation, in language somewhat different from my own, he should be given the credit. (At the time of my writing there was no printed source to which I could refer the reader for Mr. Bourke's excellent paper it has since appeared in the volume Problems of Communication in a Pluralistic Society, Marquette University Press, 1956.) My own major concern is with broader question—the quality of public argument. My question is whether Mr. Fischer has made a contribution to rational public argument on the issue of censorship. I am afraid my answer must be No.

Consider the preliminary question of language. In his opening paragraph Mr. Fischer asserts that a "little band of Catholics" is "engaged in an un-American activity which is as flagrant as anything the Communist party ever attempted—and which is in fact very similar to Communist tactics." Does one open a rational public argument by two such attacks on the reason of the reader? That tired old cuss-word, "un-American activity"—has it not gone the way of all cuss-words, into meaninglessness? And the tactic of slapping the label "Communist" on your adversary's position—have we not agreed that this is a tactic of unreason? As for the later argument by epithet (the NODL is "lynching" books), one hardly expects to find it in Harper's, however much it may be used on the hustings.

NODL AND ITS MODE OF OPERATION

The more substantive question is this: has Mr. Fischer done justice to the NODL's own understanding of its purposes and methods, as these are stated in its explanatory literature?

The literature is easily obtainable from the central office (31 East Congress St., Chicago Ill.). On reading it, one would come, I think, to the following conclusions. The NODL is simply a "service organization," not an "action group." Its major service consists in offering to "responsible individuals and organizations an evaluation of current comic books, magazines and pocket-

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size books." This is the famous "NODL list." The evaluation of these types of publications (only these) is done singly from the standpoint of what is objectionable as juvenile reading. The standards of evaluation are nine in number. All of them are common-sense norms; none of them are special tenets of any type of "group morality." Methods of review vary for each type of publication. Five reviewers vote on each item. The purpose is to "encourage the publishing and distribution of good literature," as well as to discover what is unfit for adolescents.

NODL also distributes information about ways of organizing decent-literature campaigns on the community or parish levels. It is clearly stated that the list is merely an expression of a publication's nonconformity with the NODL code and that "the list is not to be used for purposes of boycott or coercion." The procedures seem to rest on the suppositions that the ordinary merchant is a responsible man; that he would welcome some assistance in ridding his shop of stuff that responsible parents fairly judge to be unfit for their children; that if he accepts the assistance, he is to be commended; that if he rejects it, he is to be left alone. (NODL says: "Instruct your committee workers to leave silently if the owner, manager or clerk refuses cooperation.")

The general conclusion, on the basis of its own statements about itself, would be that the NODL looks to voluntary reform, through cooperation between parent-citizens and merchants, in an area where a special problem of public morality exists. That problem arises out of the ready accessibility to boys and girls of a rather immense amount of cheap literature that is objectionable on common-sense grounds of morality and taste.

MR. FISCHER'S NODL

Consider now Mr. Fischer's description of the NODL. "Its main purpose is to make it impossible for anybody to buy books and other publications which it does not like." "Its chief method is to put pressure on newsdealers, drug stores and booksellers to force them to remove from their stocks every item on the NODL blacklist." It "deliberately prefers to ignore the established legal channels for proceedings against books which it thinks improper. Its chosen weapons are boycott and literary lynching." It is embarked upon a "campaign of intimidation."

Something is wrong here. When Mr. Fischer describes the NODL he is obviously not describing the same thing that NODL describes when it describes itself. Thus you have reproduced the perfect pattern—the perfectly wretched pattern—of so much American public argument at the moment. There is really no argument at all—at least not yet. The two sides are not talking about the same thing. Hence the exchange proceeds to the customarily futile end. On the basis of his own description Mr. Fischer asserts that NODL "is compelling [emphasis his] readers, of all faiths, to bow to its dislikes, by denying them a free choice in what they buy." Hence he defines the issue thus: "The real issue is whether any private group—however well-meaning—has a right to dictate what other people may read."

To Mr. Fischer's charges the NODL would, I expect, reply to this effect: "But we are not compelling anybody to do or not do anything. We are not doing any such arbitrary thing as making our own 'dislikes' the coercive standard for the reading of the general public. We are not trying to do any 'dictating.' And as for denying to readers of all faiths a free choice in what they buy—that is not the real issue at all."

Thus the argument fulfills the customary American pattern. The next step is for the contestants to retire from the field, either in sorrow or in anger or in both. Thereafter their partisans move in, epithets are bandied; labels are exchanged; non-sequitur's proliferate. Until finally, both sides mutter disgustedly, "So's your old man." And there is, for a time, a sullen silence.

THE POLICE AND NODL

Maybe the argument could be rescued from this dismal end, to which most arguments in America seem to be condemned. Mr. Fischer could have rescued it, but he didn't. The NODL could have obviated the need for rescue, but it hasn't. The point where rescue begins is, of course, a fact. Mr. Fischer notes the fact, but he abuses it to advance his own purposes. The NODL must surely recognize the fact, but it has not acted on the recognition, to the detriment of its own purposes. The fact is that in half-a-dozen or more cities and towns the police have made use of the NODL list in order to threaten, coerce or punish dealers in reading matter.

Unquestionably, officers of the law have full right to use the weapons of law, which are coercive. The point in question, however, is their use of the NODL list. This puts NODL in an ambiguous position. It cannot expect to have the thing both ways. It cannot, on the one hand, protest that "the list is not to be used for purpose of boycott or coercion," and, on the other hand, fail to protest against the use of the list by the police. It has to choose its cooperators—either the merchant or the police. It cannot choose both; for the choice is really between opposed methods of cooperation—the method of voluntary cooperation as between equal citizens, or the method of coercion as used by the police.

If NODL consents to the use of its list by the police, it creates an ambiguity that its critics may rightly seize upon, as Mr. Fischer did; what is worse, it obscures from public view its own "idea," the altogether valid idea of voluntary reform. On the other hand, if NODL does not consent to the use of its list by the police, it should say so—publicly, and on every necessary occasion. Surely part of its service must be the supervision, conducted on its own principles, of the uses to which its list is put.

There is another inappropriateness here. Officers of the law must operate under statutes which in this matter are, or ought to be, narrowly drawn. On the other hand a voluntary reform precisely because it is voluntary, may be based on the somewhat broader categories of common-sense judgment. The latter are employed by the NODL, rightly enough. But for this very reason it is not

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right for the police to use NODL's judgment forcing the law. The law must have its own standards minimal enough to sustain the challenge of due process.

In this connection another fact must be noted. The fact is that on NODL lists there appear some twenty-odd works that either have received literary honors or at least have been acclaimed by serious critics. Doubtless high-school teachers could not, without absurdity, make them required reading for their students. But the police cannot, without equal absurdity, make them prohibited reading. Such stultification of the law is itself immoral.

IMPORTANCE OF PROCEDURE

There is a third fact of some consequence. The history of censorship has been a history of excess. The NODL has the problem of the local zealot, operating far from the central office in Chicago, and way outside the four pages of sensible procedures sent out from it. He or she "has the zeal of God indeed, but not according to understanding" (Romans 10:2). Such zealots are righteous, usually indignant, people. They have a cause. They want results. What they lack is St. Paul's "understanding," which bears, he said, on "the way of justification."

I shall not labor the analogy. The point of it, in our case, is that the zealot at times fails to see how his zeal for results may betray him into the use of methods that will in turn betray his cause. Mr. Fischer, for example, in his zeal for his own cause, which is a good one, fell into a bad method of argument. Among other faults, he fails to distinguish between the "idea" of the NODL which is the substantive issue, and the applications of the idea, which raise issues of procedure. In good "liberal" fashion he assigns the primacy to the procedural over the substantial. Contrariwise, in good Catholic fashion, the local zealot for the NODL cause assigns the primacy to the substantive over the procedural. He, or she, wants the newsstands "cleaned up"; and he, or she, in some instances doesn't greatly care how.

At that, Mr. Fischer is more nearly right. In this sensitive area the question of procedure is all-important. Part of the service of NODL to its own cause should be what I can only call a service of fraternal correction. It should somehow find a way of rebuking, or at least disavowing, the local zealot who violates, or goes beyond, the cooperative procedures, none of them coercive, which it officially stands for. (As for Mr. Fischer, maybe I have myself done him some service of intellectual charity?)

At this point, with all the ambiguities at least sorted out, if not cleared up, we could begin the rational public argument. The starting-point would be a fact—the existence of a "real national problem" (Mr. Fischer's words). Then the questions arise. For instance, does Mr. Fischer adequately measure the dimensions of the problem? He says:

A good many tawdry and disreputable magazines, paper-bound reprints and comic books have been offered for sale on a lot of newsstands. A few publishers unquestionably have tried to base their sales appeal on sex and violence; the pictures and text on the covers of their publications often hint that the contents are far more salacious than they are in fact.

He adds that "law-enforcement agencies in some cities have not been vigorous in enforcing the statutes against obscene publications." And that's it.

Or is it? Others would maintain that this is an astonishing understatement of the real national problem. They see the problem much more ominously large. A major issue in public morality has arisen; the morals of youth are particularly involved in it; the problem is growing. They further see a causal line between bad magazines, etc., and immorality. And they feel it imperative to "do something" about the bad literature.

When these last statements are made, they start up the current argument between sociology and common sense. The sociologist expresses professional doubt about the causal line between bad reading and immorality; he finds insufficient evidence for it. The common-sense view asserts that the causal line is sufficiently established by the nature, content, tendency, etc., of the literature itself. At least a strong presumption is thus created; and it furnishes reason for action, until—and maybe after—all the Ph.D. theses, pro and con, have been written.

WHO SHOULD DO WHAT?

The word "action" disturbs the jealous advocate of civil rights. He therefore comes up with his own causal line—between any attempt at suppressing any kind of literature and the subversion of the foundations of the Republic. The common-sense view expresses doubt about this causal line. There is, it says, insufficient evidence that any such alarming consequences will follow if the action taken is rational and prudent.

Here the real issue begins to appear: what kinds of action, as taken by whom, are rational and prudent in the circumstances? And what promise of effectiveness do they offer?

Mr. Fischer has his own program of action, which deserves consideration. He recommends two positive courses. The first is self-regulation by newsdealers, book sellers, and other merchants. They should, he says, "set their own house in order; they should refuse to sell any publication which—in their own untrammeled

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judgment—falls below their own standards as responsible businessmen."

A question of fact occurs here: how effective so far has the principle of self-regulation been in the solution of our real national problem? The evidence suggests a discouraging answer. Some efforts in this direction have been made, always under the pressure of public opinion; but their slim success bases little hope for the future. Second, the principle itself may be, and has been, called in question. For instance, in a report entitled The Freedom to Read, written for the National Book Committee, Richard McKeon, Walter Gellhorn and Robert K. Merton say this:

The dangers of police censorship are obvious; but we are convinced that the dangers of a code of self-censorship are even greater. It provides the means by which all kinds of restrictions can be put on freedom of expression, and it places the freedom to read in the hands of a group which does not even have the accountability to the public which a chief of police has (p. 70).

I don't necessarily endorse this judgment; but it may suggest that Mr. Fischer is on shaky ground.

There are other questions too. What, I might ask, is the right of a newsdealers to "untrammeled judgment"? Is his judgment, as a matter of fact, untrammeled? And whether it is or not, why should one trust it as a means of solution for our real national problem? Is he a better critic of literature, a better judge of morality, than the average parent? How is one even to know what his "standards as a responsible businessman" are? And if they could be known, is there to be no possibility of public judgment on them? On what title is this Olympian immunity claimed? One would like to know.

LEGAL REDRESS?

The second positive course is the action of law—legislative and court action. I am inclined to think that Mr. Fischer's confidence in the efficacy of legal action as a corrective in this difficult field of printed media will be astonishing to students of the law. If I mistake not, it is pretty generally admitted that the present legal picture is a muddle. It is further admitted that the difficulties encountered in trying to straighten it out are immense. There are the two sacred legal doctrines that must be protected—prior restraint and due process. Furthermore, there are certain adverse high-court decisions that seem to have reduced the law to a state of practical impotence, not least in the two crucial areas of obscenity and violence.

What is even more decisive, even if the law could be lifted to the full height of its legitimate potency, it would still be largely impotent to cope with the new problem of mass media, whose crude subtleties seem to defeat the subtle crudities of the law. The grounds for accepting the relative ineffectiveness of law in this special field, where the moral issue is not justice, are both theoretical and practical—to be found both in the art of jurisprudence and in the lessons of history.

Mr. Fischer suggests two manners of action—one private, the other public—whose possibilities ought by all means be explored and exploited. But in the course of rational public argument it would, I think, appear that his program of positive action is inadequate to the real national problem that confronts us. His negative demand is more acceptable. He wants organizations of private right to stop campaigns of coercion. So do I. Mr. Fischer's reasons are, I think, doctrinaire; further argument would have to illuminate the fact, if it is a fact. Whereas, I, as a Catholic, am not a doctrinaire.

THE RIGHT TO PROTEST

In my Chicago lecture I said that

. . . it is not possible to prove the position, taken by some, that an action like the boycott of a moving picture is somehow "unrightful," or "undemocratic" or "unconstitutional." No one can show that such an action lies beyond the limits of a primeval American right to protest and object. The action may indeed be strenuous; but the American right to protest and object is permitted to run to some pretty strenuous extremes. This said against the doctrinaire, it remains true that methods of action which verge upon the coercive exhibit some incongruity when used by citizen- groups in the interests of morality in literature or on the screen. Even if they raise no issue of abstract right, they do raise the concrete issue of prudence, which, equally with justice, is one of the cardinal virtues.

I hold to this position now, against Mr. Fischer (I think), and also (I think) against the NODL in its present ambiguous situation—certainly in its representation by local zealots and by the secular arm of the police.

I further hold to my previous position that private agencies such as the NODL can perform an indispensable public function in the promotion of public morality—provided they understand what their function is. It is not to supplant the coercive function of the agencies of public law. It is to represent, soberly and honestly, the principle of voluntary reform, to be accomplished on the basis of social cooperation—that sincere cooperation which in America is always ready to be stimulated but often needs stimulation.

This principle of reform is altogether valid in itself. Its applications call for prudence— concretely, as I have previously said, for "men and women of prudence, who understand the art of procedure, and understand too that we are morally bound, by the virtue of prudence, to a concrete rightness of method in the pursuit of moral aims," For the rest, the rationality of this method of social reform will be understood, and its pitfalls will be avoided, if we can all somehow hold to high standards of public discussion. In this respect the editor of Harper's has failed. But his failure is less reprehensible than that of Catholics who miss their present opportunity—and duty—to perform the instant task, which is to inject the Catholic tradition of rationality into a mass democracy that is rapidly slipping its moorings in reason.


(1)Editor Note: Published as 1956a: "The Bad Arguments Intelligent Men Make," America. 96 (November 3, 1956): 120–23. This and the Fischer article that provoked it were published as appendixes in Catholic Viewpoint on Censorship, ed. Harold C. Gardiner, S.J. (Garden City, N.J.: Hanover House, 1958), 157–92.

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