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COPYRIGHT 2008 Harvard Society for Law and Public Policy, Inc.
The primary purpose of this Essay is to criticize Robert Bork's advocacy of government censorship of American culture. However, I come as much to praise Judge Bork as to criticize him. To my mind, the principles advanced in his book, The Antitrust Paradox, (1) are just as much applicable to government regulation of culture as they are to government regulation of the economy--to some extent even more so. In his essay on The Antitrust Paradox in this volume, Judge Frank Easterbrook noted that Bork's conclusion in that book was that regulators should not "second-guess" the results of markets. (2) This principle applies just as much to cultural markets as to product markets. The Robert Bork who wrote The Antitrust Paradox is the best antidote to the later Bork who wrote Slouching Towards Gomorrah. (3)
Indeed, one of Bork's mentors at the University of Chicago was the economist Aaron Director. In 1964, Director wrote a famous article on the very subject of this Essay, entitled "The Parity of the Economic Marketplace." (4) In that work, Director pointed out that government regulation of cultural markets and of speech has many of the same weaknesses as government regulation of "economic" activity. Director's main purpose was to criticize political liberals who wanted to abolish government regulation of speech and cultural activities, yet supported heavy government regulation of the economy. But of course the argument also works in reverse against conservatives such as Judge Bork, who oppose most economic regulation but advocate government intervention in the cultural market.
This Essay explains why government censorship of culture is not "prudent," to use Professor George's terminology, (5) because it cannot be contained within the bounds that George and Bork would like to confine it. I also discuss why such regulation is in fact unnecessary. Private institutions can do a much better job of promoting desirable cultural values than government can.
At the outset, it is important to appreciate the radical sweep of Judge Bork's vision in Slouching Towards Gomorrah. Although Bork is usually viewed, quite correctly, as a conservative, there are some radical implications to this book. Judge Bork not only criticizes modern liberals and libertarians, (6) he also goes all the way back to the source, so to speak, and attacks the Enlightenment, the Declaration of Independence, and John Stuart Mill. (7) Judge Bork harshly criticizes the principles of the Declaration, arguing that they are "pernicious" if "taken ... as a guide to action, governmental or private." (8) He denounces John Stuart Mill's liberty-protecting "harm principle" as "both impossible and empty." (9)
There is, therefore,...
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