Censorship

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Censorship

Sections within this essay:

Background
Early History
Censorship in the United States
Book Censorship
Music Censorship
Press Censorship

Electronic Censorship
Additional Resources
Organizations
American Civil Liberties Union (ACLU)
American Library Association
Fairness and Accuracy in Reporting (FAIR)
Federal Communications Commission (FCC)

Background

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Despite the guarantee implicit in the words of the First Amendment to the U.S. Constitution, there have been many attempts in the ensuing two centuries to censor or ban speech, both in print and in other media.

Censorship is at best problematic and at worst dangerous when it tries to silence the voice of the powerless at the behest of the powerful. History has shown that power and influence are not reliable guides for judgment when it comes to information. The Nazi government in Germany in the 1930s and 1940s, and the governments of the Soviet Union and the People's Republic of China, have shown the world what happens when large, powerful nations choose to deprive their own citizens of knowledge and a voice. In the United States, Americans pride themselves on freedom of speech and freedom of the press—but many of them have experienced censorship. Boards of education frequently try to ban certain books from their school districts; television and radio stations ban certain programming; and newspapers may alter certain stories. The reasons for censorship are numerous, but they all share a common goal: protection. Perhaps children are the most frequently protected group. Books are banned when they depict violence or sexually suggestive material. Motion pictures are rated to protect young people from sex and violence on the screen. Internet resources are filtered to ensure that students will be unable to log into pornographic web sites.

Society, and often the courts, have determined that some information does need to be censored, and that not all media deserve First Amendment protection. Deciding which materials fall into which categories is a subject of ongoing debate.

Early History

Censorship laws existed in ancient Rome and Greece more than 2,500 years ago; ancient societies in the Middle East and China also had censorship regulations. The role of censorship was to establish moral standards for the general population; civilizations that exercised it saw censorship as a means of helping the people by providing them with guidance.

The invention of movable type in the middle of the fifteenth century revolutionized the printing industry; it made more books available and helped literacy spread beyond just the most educated in soci-ety. A more literate public meant more need for censorship. The Roman Catholic Church released a list of Prohibited Books, or Index Librorum Prohibitorum, in 1559, the first of 20 such lists (the last was issued in 1948). This list included books deemed by the Church to be heretical. Authors such as Galileo were denounced, and some authors (such as Sir Thomas More) were put to death. Prohibitions were not only religious; in 1563, Charles IX of France issued a decree that all printed material required his special permission.

Nonetheless, it became harder to suppress information, and by the end of the seventeenth century there was a movement toward freedom of speech and the press. Sweden established a law guaranteeing freedom of the press in 1766, followed by Denmark in 1770. The newly formed United States put the First Amendment into its Constitution in 1787, and the French government moved in the same direction in 1789 at the dawn of its revolution.

Censorship in the United States

The First Amendment has long been the standard by which the U.S. government has measured the freedom of individuals to speak or write their opinions without fear of reprisals. That freedom is not absolute; one of the most commonly cited examples warns that people do not have the right to walk into a crowded theater and shout, "Fire!" thus causing people to panic and trample over each other. Through the decaded the government has attempted to determine legitimate curbs to this freedom as opposed to arbitrary or discriminatory prohibitions.

Book Censorship

Censorship existed in the United States from its beginnings, the existence of the First Amendment notwithstanding. But although there were federal anti-obscenity laws, censorship itself was not mandated by federal or state governments. What codified censorship was the 1873 Comstock Act, which called for the banning of literature deemed sexually arousing, even indirectly. The man for whom the act is named, Anthony Comstock, was the leader of the New York Society for the Suppression of Vice and a special agent for both the U.S. Post Office and the New York state prosecutor's office. The Comstock Act banned the mailing, importation, and transportation of any printed material (even private letters) that contained lewd or lascivious material. It also banned the transport of any sort of contraceptive drug or device, as well as literature describing contraceptive devices. What this meant was that a book that in any way made mention of any sort of birth control could be considered lewd and subject to confiscation. Violators of the Comstock Act (Comstock himself was deputized and arrested many violators himself) faced steep fines and even time in prison.

Other books that were affected by the Comstock Act included The Decameron (written by Giovanni Boccaccio in the fourteenth century), Tolstoy's Kreutzer Sonata, Hemingway's For Whom the Bell Tolls, and D.H. Lawrence's Lady Chatterley's Lover.

In Boston, the Watch and Ward Society, which had long championed against what it deemed indecent, organized book bans in the 1920s, which gave the language the phrase "Banned in Boston." Groups such as the American Civil Liberties Union (ACLU) fought to challenge the censorship laws. These groups were successful on several occasions, winning the right in 1933 for James Joyce's Ulysses to be imported into the United States and in 1960 when federal courts allowed the full version of Lady Chatterley's Lover to be published here.

Beginning in the 1950s, a series of U.S. Supreme Court cases helped change the scope of censorship laws in the United States.

Butler v. State of Michigan. The Butler case determined in 1957 that adult reading material did not need to be restricted to protect minors. It struck down a Michigan law that outlawed any printed material with obscene language (which could corrupt children), noting that the material's existence by itself was not a danger to young readers and the law was too sweeping. Justice Felix Frankfurter wrote that the Michigan law limited the entire adult population to "reading only what is fit for children."

Roth v. United States. Also decided in 1957, this case upheld a conviction for mailing materials that were deemed to be "in the prurient interest." Although Roth made clear that obscene material was not subject to First Amendment protection, the court did note that material that has some redeeming social value or importance. (Obscenity, wrote Justice William Brennan, was "utterly" without such value.)

Jacobellis v. Ohio. This case was decided in 1964. It held that "national" standards for obscenity determined "community" standards. A Cleveland Heights, Ohio theater had shown a foreign film with an explicit sex scene. The theater owner was arrested for violating the state obscenity statute, but the Supreme Court held that since the film in question had been screened across the country without incident, it was not obscene. "The Court has explicitly refused to tolerate a result whereby "the constitutional limits of free expression in the Nation would vay within state lines,"' wrote Justice William Brennan. "We see even less justification for allowing such limits with town or county lines." Jacobellis was the case in which Justice Potter Stewart made his famous observation about obscenity: "I know it when I see it."

Memoirs v. Attorney General of Massachusetts. This case, decided in 1966, reversed a state court's ruling that the 1749 book Memoirs of a Woman of Pleasure, commonly known as Fanny Hill, was obscene. The reason, explained the court, was that the book, despite its content (much of which could be construed as offensive) geared toward prurient interest, the book was not "utterly" without redeeming social value. To be obscene, the book would have to have prurient appeal, offensiveness, and utter lack of redeeming social value.

Ginzburg v. United States. This case was decided in 1966, and the court upheld the conviction of a publisher who had marketed and mailed three sexually explicit publications. The reason the court reached this decision was that the material, though potentially not patently obscene, had been marketed solely as erotic material and thus could be reasonably construed on that basis to be obscene.

Ginsberg v. State of New York. In this 1968 case, the Supreme Court upheld a statute that a state can create more stringent obscenity standards for minors than for adults. The defendant had sold two adult magazines to a 16-year-old boy, and argued that the anti-obscenity statute violated that minor boy's right to read under the First Amendment. The court found that there was no violation of the child's rights because the material in question was obscene for children.

Miller v. California. This landmark 1973 case established a new definition for obscenity, replacing the standard set by Roth. The defendant had been convicted under California's obscenity law for mailing sexually explicit advertisements to sell adult books and films. An appellate court uphend the conviction, but the Supreme Court vacated the appellate court's decision and sent it back for reconsideration using the new definition. Chief Justice Warren Burger, writing for the majority, outlined the definition: "The basic guidelines … must be: (a) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to a prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

Board of Education v. Pico. Decided in 1982 by a 5-4 majority, this case ruled that school boards do not have the absolute right to remove books from school libraries. A school board in Island Trees, New York removed several books from the school library shelves, including The Fixer by Bernard Malamud, Slaughterhouse Five by Kurt Vonnegut, Best Short Stories of Negro Writers (edited by Langston Hughes), A Hero Ain't Nothin' But A Sandwich by Alice Childress, and A Reader for Writers (edited by Jerome Archer). The school board, when challenged about its decision, called the books "anti-American, anti-Christian, anti-Semitic, and just plain filthy." Although it was determined by a separate committee that several of the books should be replaced, but the board refused. A group of students sued the district.

Justice William Brennan wrote that "the special characteristics of the school library make that environment especially appropriate for the recognition of First Amendment rights of students." While the court noted that school boards do have discretion in what books to acquire for the school, and it could reject any works deemed to be "pervasively vulgar."

School boards continue to attempt to ban books, with classics such as The Adventures of Huckleberry Finn and Of Mice and Men among the most frequently challenged, according to the American Library Association. In the early years of the twenty-first century, the Harry Potter series of books, which tell the story of a young aspiring wizard and his adventures in wizard school, have become a focal point for many who oppose the focus on wizardry and magic.

Music Censorship

Musical lyrics have been the subject of censorship through the years, particularly those that were deemed sexually suggestive or violent. Censorship has affected the works and performances of such disparate artists as Cole Porter, Frank Zappa, Bruce Springsteen, Rosemary Clooney, the Carpenters, Sheena Easton, Perry Como, and Bob Dylan.

In 1954, for example, Cole Porter's "I Get A Kick Out of You" was edited for radio broadcast to re-move the line "I get no kick from cocaine" (it was replaced with "I get perfume from Spain"); the American Broadcasting Company bans Rosemary Clooney's performance of "Mambo Italiano," citing inadequate standards for "good taste"; and police in Long Beach, California and Memphis, Tennessee confiscated jukeboxes thought to contain songs with suggestive lyrics (the owners were fined as well).

Sometimes, the censors' rationale had nothing to do with the lyrics. In 1968, a radio station in El Paso, Texas banned the playing of songs performed by Bob Dylan because his lyrics were hard to understand. (The did not ban performances of his lyrics when sung by other artists.) And in 1990, a radio station in Nebraska led a boycott against the music of k.d. lang—not because of what she sang, but because she was a vegetarian.

Although the music industry has frequently come under attack by opponents they deemed too reactionary or literal-minded, mainstream concerns about lyrics were being expressed more openly. In 1985, twenty wives of politicians and business leaders in Washington, D.C. (including Tipper Gore, wife of then-senator Al Gore) formed the Parents Music Resource Center (PMRC). The group's goal was to lobby the music industry for a ratings system for music similar to that used in the film industry, the printing of lyrics on album covers, and an overall reassessment of musicians and lyricists whose work could be deemed violent or explicitly sexual. In 1990, a parental warning sticker system was adopted by the recording industry that would place warning stickers on records deemed explicit. A year later, Wal-Mart, the nation's largest retailer, announced that it would refuse to stock any stickered albums in its stores. In 1995, former U.S. education secretary William Bennett and national Political Congress of Black Women chair C. Delores Tucker addressed a shareholders' meeting of Time-Warner, Inc., deploring rap music lyrics that promoted violence or that degraded women.

After the attacks in New York and Washington, D.C., on September 11, 2001, Clear Channel Communications (the largest broadcast station owner in the United States) released a list of 150 suggested songs it deemed "lyrically questionable" because they had metaphoric references to planes, crashing, and death. The list included Steve Miller, s"Jet Airliner," the Dave Matthews Band's "Crash Into Me," Pat Benatar's "Hit Me with Your Best Shot," and the Jerry Lee Lewis song "Great Balls of Fire."

Press Censorship

The concept of "freedom of the press" was established in New York when it was still a British colony. In 1734, John Peter Zenger, publisher of the New York Weekly Journal, was charged with libel against colonial governor William Cosby when he printed articles critical of Cosby's decision to remove the chief justice of New York from office. He was imprisoned for nine months before his case went to trial. Philadelphia attorney Andrew Hamilton argued that statements could not be libelous if they were true. Although English law did not accept truth as a defense to libel, Hamilton pressed the issue with the jury, which found Zenger not guilty on August 4, 1735. This case set a precedent that truth is an absolute defense to libel.

Over the years, freedom of the press has been an important element of American society. Newspapers have traditionally been given considerable leeway in what they publish, and there has never been a shortage of opinions expressed in print in the United States. Nonetheless, censorship is hardly unknown in the press, or in broadcast news programs.

Often, the press censorship is voluntary. In times of war, for example, the press is careful about publishing material that could provide enemy forces with sensitive information about U.S. troops. On a more personal level, public figures were long afforded the courtesy of not having their private lives printed in newspapers or broadcast through other media. President Franklin D. Roosevelt could not stand unassisted after his 1921 bout with polio, but during his presidency the press voluntarily refrained from publishing photographs or releasing film footage of Roosevelt being assisted or using a wheelchair. (As the twentieth century progressed, this sort of courtesy eroded steadily, which sometimes may have given the public more information than it wanted about the private lives of public figures.)

Also, the press and broadcast media have often felt compelled to be sensitive to advertisers and sponsors. There are countless examples of brave publications running unsympathetic stories about advertisers, who would promptly cancel all future advertising with the offending publication. And there are examples of publications refusing to run stories that could offend a potential advertiser. But these are not examples of government-sanctioned censorship.

That said, there have been charges of government censorship over the years from the press, particularly during war time. One of the most noteworthy exam-ples comes from the Iraq War, which began in March 2003. Not long after the war began, the Pentagon issued an order banning the release of photographs of flag-draped military coffins returning from the battle zone. (The ban had actually been in effect for several years before the war but not enforced.) Proponents of the ban argued that publishing the photos did a disservice to the privacy of the fallen soldiers and their families. Opponents of the ban countered that it was nothing more than a public relations ploy to minimize the true scope of American war casualties.

The Freedom of Information Act (FOIA), enacted in 1966, establishes the public's right to obtain information from any agency of the federal government. Any group or individual (foreign nationals as well as American citizens) can file a request. Each government agency is required by law to provide the public with information on how to file FOIA requests. There are exemptions to FOIA, including national security information, internal personnel information, confidential business information, inter- and intra-agency confidential communications, law enforcement records, financial institutions, and geological information. FOIA was amended in 1996 to allow increased access to electronic information.

Electronic Censorship

As a resource for information, the Internet has been both exciting and exasperating for precisely the same reason: the volume of unrestricted material that can be accessed instantly from virtually any-where in the world. This means that inaccurate information can be distributed as quickly and easily as carefully researched material. It also means that offensive material, including pornography, can be posted and accessed. Balancing the First Amendment right to free speech with the need to protect against unprotected material has been a key focus of the U.S. government since the 1990s.

In 1996, Congress passed the Communications Decency Act (CDA), which prohibited the posting of materials deemed "indecent" or "patently offensive." There were already laws prohibiting child pornography and obscenity; CDA went further and ultimately prohibited what opponents claimed was protected speech under the First Amendment. The U.S. Supreme Court unanimously struck down CDA in 1997, claiming that its reach was too broad.

Congress passed the Child Online Protection Act (COPA) in 1998 and the Children's Internet Protection Act (CIPA) in 2000. COPA established criminal penalties for any one who distributed indecent online material to minors, and CIPA required libraries and schools to place filters on their computers or face the loss of federal funding. COPA was challenged in the courts and in 2003 the Third Circuit Court of Appeals found that is was unconstitutional. The U.S. Supreme court upheld that decision in 2004 by a 5-4 margin. As for CIPA, it withstood a challenge when the Supreme Court found it constitutional by a 6-3 margin, but a pluraility of the justices noted that the filtering systems needed to be easy to disable for adults who wish to use public library computers.

First Amendment arguments have also allowed unsolicited e-mail (better known as spam) to clog the e-mail boxes of millions of individuals, not to mention commercial, corporate, and even government e-mail accounts. Proponents of spam claim that it is the electronic equivalent of bulk mail and is protected speech. Opponents claim that spam is far more insidious because many spammers use phony e-mail addresses and subject lines, making it impossible to contact the source to ask to be removed from the mailing list. (Experts on spam advise against sending a reply to "opt-out" links because this merely assures the spammer that the sender's address is active.) In December 2003 President George W. Bush signed the CAN-SPAM Act, which requires all commercial e-mailers to provide an opportunity to opt out, prohibits false headers and subject lines, and imposes civil penalties on offenders. Though well-intentioned, CAN-SPAM did little to make a real impact, in part because it is easy for spammers to find electronic loopholes that allow them to remain uncaught. The Coalition Against Unsolicited Commercial E-mail (CAUCE) is a volunteer nonprofit organization that works to find ways to help reduce spam. Information on consumer guidelines, and on the group's progress, can be found at www.cauce.org.

Additional Resources

Banned in the USA: A Reference Guide to Book Censorship in Schools and Public Libraries, Herbert N. Foerstel, Greenwood Press, 2002.

Censorship in America: A Reference Handbook, Mary Hull, ABC-CLIO, 1999.

The Language Police: How Pressure Groups Restrict What Students Learn, Diane ravitch, Knopf, 2003.

Parental Advisory: Music Censorship in America, Eric Nuzum, Perennial, 2001.

Federal Communications Commission (FCC)

445 12th Street, SW
Washington, DC 20554 USA
Phone: (866) 225-5322
Fax: (866) 418-0232
E-Mail: [email protected]
URL: http://www.fcc.gov
Primary Contact: Kevin J. Martin, Chair

Gale Encyclopedia of Everyday Law