The Illegal Process

By pure coincidence, I have another paper to announce: The Illegal Process: Basic Problems in the Making and Application of Censorship. It’s a shortish (13-page) essay in the University of Chicago Law Review’s online supplement, Dialogue. In it, I respond to a provocative proposal by Derek Bambauer that the United States enact a statute permitting Internet filtering but setting strict procedural limits on its use. This idea sounds disconcertingly close to promoting censorship, but Bambauer’s point is that the U.S. already engages in Internet filtering through less accountable means, and it would be better to bring the process under legal control.

This is a process-oriented argument: it deliberately focuses on the legitimacy of the procedures used to install filters, rather than on the substance of what’s filtered and what isn’t. So I had the idea of critiquing the argument using the tools of the Legal Process school of jurisprudence, which tried to use process-oriented arguments to understand rigorously the roles of courts and legislatures in a democracy under the rule of law, and to develop a clearer understanding of when various procedural devices are appropriately employed. My title is a play on the bible of the Legal Process school, Hart and Sacks’ The Legal Process: Basic Problems in the Making and Application of Law.

My format is a play on Hart and Sacks, as well. The Legal Process is notable for its barrage of questions to the reader, questions which range from the subtle to the sublime. The Illegal Process consists of a long series of “Notes and Queries” on Bambauer’s article — over a hundred and fifty questions, in all. Some are pointed, some are cheeky, some are gently leading; all of them, I hope, help to bring out the implications of his argument and the challenges of trying to build legal bulwarks against would-be censors. Here’s a sample:

Professor Bambauer refers to his criteria as a “process-based methodology” and defends them as being “compatible with divergent views on what material should be banned.” How far can procedural criteria go in settling questions about censorship? Does it follow that because procedurally regular censorship is more legitimate than procedurally irregular censorship, it is legitimate in an absolute as well as a relative sense? Is this a question that can be settled in the abstract, without reference to the material to be censored? Is it right that whether Winston Smith shall be permitted to read The Theory and Practice of Oligarchical Computation should turn only on the process Comrade O’Brien follows and not on the contents of the book? But if it is necessary to make normative judgments about whether particular material can appropriately be censored, is it possible to say anything about global censorship that does not rest on contested moral and social values? Is Professor Bambauer’s theory an attempt to apply a quintessentially liberal methodology—procedural justice—to a quintessentially illiberal subject—censorship?