Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, and media law, and seminars in appellate advocacy and law & theology. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Monday, November 15, 2010

The Censorship Mantra

When Amazon was criticized for selling the self-published e-book "The Pedophile's Guide to Love and Pleasure: A Child-Lover's Code of Conduct," the company responded by declaring: "Amazon believes it is censorship not to sell certain books simply because we or others believe their message is objectionable."

In short order, Amazon reversed course and pulled the book from its virtual shelves.

The statement Amazon issued deserves a close look. This is true not only because the statement is deeply confused. It is true because the statement says something, albeit indirectly, that Amazon cannot possibly want to say.

Let's start with the obvious. The First Amendment forbids censorship by the government, not by private parties like Amazon. Indeed, invoking censorship is particularly puzzling in light of Amazon's status as an online bookstore.

The First Amendment empowers bookstores to decide what they will and will not sell. A suggestion that the First Amendment somehow deprives bookstores of that freedom gets it exactly backwards.

But here's the subtler point. In recent years, some legal scholars (I am not among them) have suggested that we should think about these issues differently. They have argued that the law should treat private media entities with overwhelming market power as if they were the state and should regulate them along the same lines that the First Amendment limits the government.

In other words, for Amazon's statement to make any sense we would have to believe that the company has such vast control over the marketplace that we should think of it as the equivalent of a state actor--and restrict it accordingly.

It is an argument. But, surely, it is an argument that Amazon does not want to advance, let alone win.

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