Censorship

This entry, concentrating on censorship of sexual content in the United States, initially defines censorship. It then explores different rationales for censorship and the various means and modes that it can take. In addition to addressing the censorship of pornography and obscene speech, it examines censorship of broadcast indecency in the United States by the Federal Communications Commission (FCC) and other common censorship battles, including those involving self-censorship by private entities and businesses.

DEFINING CENSORSHIP: GOVERNMENT CENSORSHIP AND PRIVATE CENSORSHIP

Censorship is the prohibition, suppression, and restriction of speech, be it the printed word or other forms of expression such as images, broadcasts, and Internet postings. It generally is found in two distinct modes in the United States—government censorship and private censorship. The former typically occurs when a government official or government entity either creates a law or seeks a court order, such as an injunction, that prohibits and bans the utterance and/or dissemination of speech on a particular topic, subject, or idea. Likely targets of censorship in the early twenty-first century are content such as military or security secrets, obscenity, broadcast indecency, and true threats of violence. The government, in brief, is the agent of the censorship—it plays the role of censor—and thus this form of censorship can also be called official censorship. People who violate censorship laws—laws that forbid the communication of certain messages and topics, such as federal statutes in the United States prohibiting the creation and dissemination of images of child pornography—and court orders face criminal penalties including fines, incarceration, and contempt.

Conversely, in private censorship—what might be called unofficial censorship—the censorship agent is not a government actor or government entity but is, instead, a private individual, a private business, or a corporation. For instance, private censorship takes place when a corporation or business acts as censor and decides not to sell or to rent a speech product such as a sexually explicit adult magazine such as Hustler, a violent video game such as Grand Theft Auto, or a profanity-laced rap CD by Eminem because the corporation or business objects to the content, subject matter, or message in the speech product. The individuals running a corporation or business that engages in such censorship may personally object to the messages in question or, from an economic and business standpoint, they may fear boycotts by consumers and religious groups if they sell the censored products. This may be thought of as a particular variety of private censorship called corporate censorship. Corporate censorship also occurs when a corporate-owned radio station refuses to play the songs of a certain musical group because the radio station's owners object to the group's political viewpoint or find the group's lyrics offensive. For instance, in 2003 many radio stations in the United States refused to play songs by the Dixie Chicks, a pop-country musical trio, after lead singer Natalie Maines made comments critical of President George W. Bush during a concert in England. In addition to corporate censorship, private censorship transpires when an individual who desires to speak nonetheless refrains from doing so voluntarily because of fear that his or her speech could lead to some form of punishment, retaliation, or retribution at the hands of others, including but not limited to the government. This is known as self-censorship; rather than risk possible reprisals for expressing a viewpoint or message, people play it safe, forgo speaking, and censor themselves. It thus is often said that a "chilling effect" on speech occurs when fear leads to self-censorship.

What unite both government censorship and private censorship are the notions of control over communication and the silencing of speech. In the case of government censorship, the control may come in the form of a prior restraint on speech—an order stopping speech before it can be released or sold to the public at large or to a specific segment of the public such as children. A court order restraining speech before it can be heard is a form of a judicial decree known as an injunction. In the United States, the First Amendment to the U.S. Constitution stands as a bulwark against most forms of government censorship. It provides in relevant part that "Congress shall make no law … abridging the freedom of speech, or of the press." The U.S. Supreme Court has interpreted the word Congress to mean not simply the U.S. Congress, but any federal, state, or local government entity or official. The First Amendment thus creates an ethos and spirit of free expression that is dramatically and diametrically opposed to government censorship. Indeed, prior restraints on speech are presumptively unconstitutional and the government faces a heavy burden when attempting to justify them (New York Times Co. v. United States, 1971). Private censorship, however, is immune from the First Amendment guarantees of free speech and press. Thus there is no constitutional protection against private censorship, and private businesses and corporations are free not to sell or rent those speech products to which they object.

Even the First Amendment does not completely prohibit government censorship. The U.S. Supreme Court, the ultimate arbiter of the meaning of the First Amendment, has long held that some forms of speech—obscenity, child pornography involving real children, fighting words, true threats of violence, and incitements to violence—fall outside the scope of First Amendment protection and thus can be suppressed and censored. In addition and as described later, the FCC engages in censorship of certain sexually explicit content on broadcast television that it deems to be indecent.

Therefore, despite the presence of the First Amendment protection of free speech and press, both government censorship and private censorship occur in the United States. The constitutional law scholar and professor Rodney A. Smolla (1992) calls censorship "a social instinct," observing that "governments in all places at all times have succumbed to the impulse to exert control over speech" (p. 4). Other scholars agree that "throughout history governments have sought to, and succeeded, in banning material that they consider injurious" (Green 1990, p. vii) and "studies in communications, anthropology, sociology, and economics support the claim that censorship is an enduring feature of human communities" (Jansen 1991, p. 181). It thus should come as no shock that "censorship has been a constantly recurring social phenomenon" (Garry 1993, p. xv) in the United States. In fact, only seven years after the First Amendment took effect in 1791 with its protection of freedom of speech, "the federalist party under President John Adams obtained passage of the Alien and Sedition Acts of 1798, which attempted to silence any criticism levied against it by Thomas Jefferson's emerging Republican-Democratic party" (Garry 1993, p. 19).

Given such historical tendencies and social instincts toward censorship, it is not surprising that there is a long history of censorship of sexual content in the United States. In 1821 Massachusetts successfully prosecuted Peter Holmes, publisher of a version of an erotic novel by the English novelist John Cleland called Fanny Hill; or, Memoirs of a Woman of Pleasure (1748–1749), because government authorities found it to be "lewd, wicked, scandalous, infamous, and obscene" (Heins 2001, p. 25). The book, describing "a young woman's successful rise from destitution to a middle-class life through a career in prostitution" (Lane 2000, p. 11), was censored because it would allegedly put lustful desires in the minds of both minors and adults. In 1842 Congress enacted the first federal statute that allowed the censorship of obscene material. Congress in 1865 passed another law prohibiting the use of the mail to convey obscene pictures and books because it was "concerned about the consumption of pornography in the [military] ranks during the Civil War" (Lane 2000, p. 15).

The first dramatic move toward the large-scale censorship of sexual content in the United States, however, came in 1873 with the passage of the so-called Comstock Law, named for Anthony Comstock, a crusader in New York State against indecent material. This act "made it a crime knowingly to send information and advertisements about obscene publications, contraception, or abortion through the mails" (de Grazia 1992, p. 4), and Comstock was made a special agent of the U.S. Post Office charged with enforcing it—something he did quite vigorously. Forty years after the act's passage, Comstock claimed to have "destroyed more than 160 tons of obscene literature and had convicted enough individuals to fill nearly 61 passenger cars with 60 seats each" (Lane 2000, p. 15). Comstock had great power, in part, because the act did not define terms such as obscene, lewd, and indecent, thus giving him wide latitude to subjectively enforce the obscenity censorship law as he saw fit. The postal service remains one the primary enforcers of obscenity laws in the early-twenty-first-century United States, with postal inspectors monitoring mails for obscene content under federal law (18 U.S. Code § 1461).

Censorship of sexual content continued in the twentieth century, and it was not until 1966 that the U.S. Supreme Court finally held that the book Fanny Hill was not obscene and thus could be legally distributed (A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts). A major victory against censorship occurred in 1933 when a federal judge held that James Joyce's book Ulysses was not obscene (United States v. One Book Called "Ulysses"). But that decision did not stop efforts to censor speech that government authorities considered to be obscene. Between 1957 and 1977, the nation's high court heard arguments in nearly ninety different obscenity prosecutions. During the administration of President Bill Clinton, however, there were no federal obscenity prosecutions, as the Justice Department under Clinton focused instead on the proliferation of child pornography on the World Wide Web and congressional efforts turned to censoring nonobscene yet explicit sexual content on the web. The administration of President George W. Bush began a new federal crackdown on obscenity, launching two major prosecutions, one in 2003 and the other in 2006.

RATIONALES FOR CENSORSHIP: FEAR AND POWER

Rationales for censorship of expression often are based upon fears—realistic or imaginary—about the supposedly dangerous and deleterious effects that particular messages might have on the audience that receives them. For instance, those in power in government may want to censor messages of opposing political parties because they fear the opposition's messages will undermine their authority and control. Likewise, the government may want to censor messages with sexually explicit content because it fears that young children would be harmed or corrupted by viewing the content. For instance, a public high school—a government entity—may ban books with sexual content from its shelves or remove selected pages from them, clear acts of government censorship.

Private censorship also may be based on a fear rationale. For instance, a company may decide not to sell a particular rap CD because it fears consumer backlash in the form of boycotts and protests were it to carry the CD. Alternatively, the rationale for private censorship may not be based on fear but simply on the premise that the individual engaged in the censorship truly objects, based on personally held beliefs, to the content in question and thus decides not to sell or rent it.

Ultimately, censorship is about power and control of information. By preventing people from receiving certain information and knowledge, individuals and government entities acting as censors exert control over the information-deprived individuals. The maxim that "knowledge is power" goes double with censorship, as censorship is the suppression of knowledge with this suppression entrenching the power of those who control the flow of information. Government censorship of sexual content in books, magazines, and videos therefore is a means of power and control over sexual practices and sexual mores of the population, as censorship of this material both reduces what people know about sexual conduct and makes clear to them that some sexual practices are forbidden, scandalous, or taboo.

MODERN RATIONALES FOR CENSORSHIP OF SEXUAL CONTENT

In the early-twenty-first-century United States, there are two primary and distinct rationales for censoring sexual content and, in particular, for censoring sexual content that is commonly thought of as pornography, such as that found in such magazines as Hustler, Taboo, and Barely Legal.

First, antipornography feminist legal scholars such as Catharine A. MacKinnon (1993) believe that such sexual content represents "the power of men over women, expressed through unequal sex, sanctioned both through and prior to state power" (p. 40). Under this view, the sexual content found in adult magazines, videos, and DVDs should be censored because it objectifies and exploits women and, in turn, conveys an ideology that sustains male power. In addition, this strand of antipornography feminism contends that censorship is necessary not only because pornography subordinates women to men but also because it changes how women feel about themselves. As the late feminist scholar Andrea Dworkin (2004) wrote, "the pornography industry has managed to legitimize pornographized sexuality and to make it the duty of every woman to perform sexually as a prostitute. Partly, the voyeurism of the pornography industry changes the way in which women are seen. This includes how we see ourselves" (p. 141). It is worth noting that not all feminists are in favor of censorship of sexually explicit pornography; in fact, there is a group in the United States called Feminists for Free Expression (FFE) that is decidedly anticensorship and believes that "while messages reflecting sexism pervade our culture in many forms, sexual and nonsexual, suppression of such material will neither reduce harm to women nor further women's goals" ("FFE Mission").

The second primary rationale for censoring sexual content is that the content undermines moral and religious values, while concomitantly corrupting children and harming social institutions such as the family and marriage between a man and a woman. This view is commonly associated with the conservative and religious right movement in the United States. Groups such as Citizens for Decent Literature, founded in the 1950s by Charles Keating, and the American Family Association, founded in 1977 and headed in the early twenty-first century by the Reverend Donald Wildmon, are examples of censorship advocates subscribing to this rationale.

Beyond these two primary rationales for censorship of sexually explicit content are arguments that pornography: (1) exploits the women who are used in making it; (2) is addictive and ruins the lives of those who consume it, along with the lives of their family members; and (3) desensitizes users and negatively changes their beliefs and behaviors about healthy sexual relationships. Both anti-porn feminists and antiporn conservatives may embrace these arguments, depending on the particular individual.

Very different rationales for censorship of sexual content are found when the individuals featured in the content are children. In particular, child pornography is censored in the United States—it is not protected by the First Amendment, and it is a violation of both federal and state laws to distribute it and to possess it—because the minors used in child pornography: (1) do not have the mental capacity to understand the ramifications of their participation in it and thus are not capable of giving informed consent to making it; (2) are both physically and emotionally harmed by participating in it; and (3) could be haunted later in their adult lives by the permanent record of their participation in child pornography if someone years or decades later discovers the magazine, video, or DVD in which they appeared. In addition, another rationale for censorship of child pornography is that its use by pedophiles whets their appetite to sexually molest and abuse children.

Finally, another rationale for censoring sexual content is political expediency. In particular, politicians may call for censorship of sexual content not because they really fear that it causes any harm to those who would view it or read it, but because such a pro-censorship stance against sexual content may win them support from voters and public interest groups such as Focus on the Family. Viewed in this light, support of censorship can be seen as little more than a cynical form of political pandering to the electorate.

TYPES OF CENSORED SEXUAL CONTENT: OBSCENITY, CHILD PORNOGRAPHY, INDECENCY

The First Amendment does not protect obscene speech, and thus it may be censored by the federal government in the United States. The U.S. Supreme Court created a three-part test in 1973 for determining when material is obscene (Miller v. California). That test, known as the Miller test after the name of the legal case in which it was created, asks the jury in an obscenity prosecution to determine whether the material in question: (1) appeals to a prurient interest in sex, when taken as a whole and as judged by contemporary community standards from the perspective of the average person; (2) is patently offensive, as defined by state law, in its display of sexual conduct; and (3) lacks serious literary, artistic, political, or scientific value. Only if a jury finds that each of these three components is satisfied by the sexual content in question will it be deemed to be obscene. Once deemed obscene, the censorship and suppression of further distribution of the material is permissible. The rationale for censorship of obscenity, as reflected in the Miller test's use of terms such as prurient interest (defined by the U.S. Supreme Court as a morbid or shameful interest in sex) and patently offensive, is premised on the conservative argument described above that it harms morals and values.

Child pornography involving real minors—not computer-generated ones—also is not protected by the First Amendment, and thus it too may be censored by the government. Significantly, however, there is not a uniform or standard definition of child pornography, in contrast with the Miller test for obscenity. What courts have made clear is that the sexual content need not rise to the level of obscenity under Miller or be as graphic or explicit if children are depicted in it. For instance, an image depicting the lascivious exhibition of the genitals or pubic area of a minor constitutes child pornography under federal statutory law embodied in the United States Code even if the minor is not engaged in a sex act (18 U.S. Code § 2256).

A third category of sexual content that may be censored by the government in the United States is broadcast indecency. In particular, the U.S. Supreme Court ruled in 1978 that the FCC could censor the over-the-air broadcast, on both radio and television during certain periods of day, of sexual content that it deemed to be "indecent" even though the content does not rise to the level of obscene speech under Miller (Federal Communications Commission v. Pacifica Foundation). In 2006 the FCC defined broadcast indecency as speech that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium. This is a two-part test that first requires a determination of whether the speech in question depicts or describes sexual or excretory activities or organs. If it does include such content, then it must be determined whether the depiction or description is patently offensive. In deciding if material is patently offensive, the FCC generally weighs three factors: (1) whether the description or depiction is explicit or graphic; (2) whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs; and (3) whether the material appears to pander or is used to titillate or shock. No single factor controls the analysis; each is weighed in context in a totality-of-the-circumstances approach.

In 2006 the FCC raised by ten times the amount that it could monetarily fine a broadcaster for a single instance of an indecency violation, from $32,500 to $325,000. Broadcasters do not face such liability, however, if they air indecent content between 10:00 p.m. and 6:00 a.m. This eight-hour window when indecent content is permitted on the broadcast airwaves is known as the safe-harbor period; it gives adults a chance to receive such indecent content during a period when the FCC believes that fewer children are in the audience and thus are less likely to be exposed to it. In essence, this safe-harbor period is designed to strike a balance between the First Amendment interest of adults to receive indecent speech, on the one hand, and the government interest in helping parents shield their children from indecent content, on the other.

In 2004 the FCC vigorously applied its indecency standard when it issued an aggregate $550,000 fine against various CBS television stations for airing that same year the Super Bowl XXXVIII halftime show. It was, at the time, the largest indecency fine ever levied. The FCC focused its inquiry on Janet Jackson and Justin Timberlake's performance of the song "Rock Your Body." The duet concluded with Timberlake's removal of a portion of Jackson's leather bustier, briefly exposing her breast to the camera, at the precise moment when Timberlake finished the song's last lyric, "gonna have you naked by the end of this song." In reaching its decision that the broadcast was indecent, the FCC initially found that the halftime broadcast culminated in on-camera partial nudity with Jackson's exposed breast, thus constituting a depiction of a sexual organ under its definition of indecency. It then concluded that this depiction was patently offensive because, although it lasted less than one full second on the air, it was designed to shock and titillate and it was graphic and explicit. In 2006 the FCC upheld this order after CBS appealed it (FCC 2006b).

In 2006 the FCC issued a new record-setting aggregate fine of more than $3.6 million against CBS affiliates for airing an episode of the show Without a Trace that, in the FCC's determination, was indecent because it graphically depicted teenage boys and girls participating in a sexual orgy. The episode had aired at 9:00 p.m. in the central and mountain time zones, thus placing it outside the safe-harbor period. Although no nudity was shown and the sex was merely simulated, the FCC nonetheless found that it was indecent, reasoning that the episode "contains numerous depictions of sexual conduct among teenagers that are portrayed in such a manner that a child watching the program could easily discern that the teenagers shown in the scene were engaging in sexual activities, including apparent intercourse. The background sounds, which include moaning, add to the graphic and explicit sexual nature of the depictions" (FCC 2006a). The FCC does not monitor the airwaves looking and listening for indecent content that it would like to censor. Rather, it considers and evaluates whether a broadcast is indecent only after receiving a formal complaint from a listener or viewer. By 2006, organizations such as the Parents Television Council actively monitored the airwaves, and its members had filed thousands of complaints for alleged indecency violations with the FCC.

To escape the FCC's censorship of indecent sexual content in the early twenty-first century, some radio show hosts such as Howard Stern abandoned over-the-air radio and moved to subscription-based satellite radio where the FCC does not censor indecent content. This demonstrates that the effect of censorship of sexual content may not be to eradicate it but simply to shift it to another venue or mode of communication.

This section has so far described the U.S. government's censorship powers over three distinct types of sexual content: obscenity, child pornography, and broadcast indecency. One might wonder what its censorship powers are over adult pornography. The problem here is that there is not a precise legal definition of pornography in the United States; rather, it is a catchall term that means many different things to many different people. Hustler magazine may be considered pornographic by many people because of its sexual content, but that is not a legal determination. Obscenity and pornography thus are not the same thing; the former is a legal term, the latter is not. Something may be pornographic in the eyes of many yet not be obscene under the Miller test in a court of law.

WARDING OFF GOVERNMENT CENSORSHIP WITH SELF-REGULATION AND SELF-CENSORSHIP

In order to ward off government censorship of sexual and violent content in their media products, many entertainment-based industries have adopted and employed voluntary ratings systems that provide consumers and viewers with package-affixed labels and warnings about the content in a particular product. While such voluntary ratings systems do not constitute private censorship to the extent that the content of the product itself is not altered by the imposition of a rating or warning label, they do amount to good-faith and self-regulatory efforts to monitor content to fend off censorship. For instance, the Motion Picture Association of America (MPAA)—a nongovernmental organization—has a voluntary rating system, first adopted in 1968, that rates movies, taking into account factors such as theme, language, violence, nudity, and sex. Although no film company is forced to submit a film for rating to the MPAA, the vast majority opt to do so. The video game industry also has a voluntary rating system run by the Entertainment Software Rating Board. For instance, a video game rated AO (Adults Only) means that the content may include prolonged scenes of intense violence and/or graphic sexual content and nudity. In the music industry as well, the Recording Industry Association of America (RIAA) places voluntary warning labels on CDs. In each case, the hope of these industries is that enforcement of their own voluntary rating system will be sufficient to prevent and stave off official government censorship of their content.

Such voluntary rating systems, however, can actually lead to private self-censorship. For instance, most movie producers do not want an NC-17 (No One 17 and Under Admitted) rating on a movie because most large theater chains will not show such movies on their screens, thus reducing the amount of potential box-office revenue to the take from only a tiny number of theaters nationwide and effectively spelling the kiss of death for the movie. Thus a producer of a film that initially receives an NC-17 rating might choose to go back and re-edit the movie, voluntarily eliminating certain graphic sexual scenes in order to obtain a less severe R (Restricted: Under 17 Requires Accompanying Parent or Adult Guardian) or the even more lucrative and family-friendly PG-13 rating (Parents Strongly Cautioned: Some Material May Be Inappropriate for Children Under 13) which is "by far the most profitable rating that a movie can receive" (Mundy 2003, p. W12). Even advertisements for movies may be subject to self-censorship as a result of a voluntary rating system. For instance, in 2006 the MPAA, which approves advertising for the films it rates, called for the producers of a documentary titled The Road to Guantánamo to change a movie poster that showed "a man hanging by his handcuffed wrists, with a burlap sack over his head and a blindfold tied around the hood" (Kennicott 2006, p. C1). Although not government censorship, this is a clear case of self-censorship by the movie industry.

The voluntary ratings also can lead to corporate censorship. This occurs when large retailers and distributors use the ratings as the criteria for refusing to sell products with a specific warning label or rating. The Harvard University law professor Paul C. Weiler (2006) writes that Wal-Mart, the largest seller of record albums, not only will "not stock any NC-17 or X-Rated videos, but it will not sell any record albums that carry an RIAA 'parental advisory' rating. Needless to say, one cannot buy albums by gangsta rap artists like Snoop Doggy Dogg or Tupac Shakur at a Wal-Mart outlet" (p. 128). In some cases, religious organizations and advocacy groups such as the National Institute on Media and the Family put pressure on corporations to engage in such censorship. For instance, in 2005 retailer Best Buy, acting "under pressure from religious groups, unveiled one of the toughest policies yet to keep violent and sexually explicit video games out of the hands of children" (Serres 2005, p. 2D). Specifically, Best Buy implemented a program that secretly monitors its employees and then fires the ones who sell video games rated M (Mature) to minors. Other retailers refuse to even stock M-rated games under such pressure from some religious and pro-family advocacy groups.

Even when a product is not rated, some corporations simply refuse to sell it. For instance, "many groups have warred against Playboy, successfully getting it pulled from magazine stands in places including Wal-Mart and some 7-Eleven stores. The religious right has rallied against the magazine from the pulpit and in books" (Guerrero 2003, p. 12).

SHIFTS IN COMMUNITY VALUES AND EFFECTS OF CENSORSHIP ON SEXUAL MORES

By 2005 the Adult Video News, an adult trade industry publication, estimated that adult entertainment was a $12.6 billion industry in the United States. Adult sexual content was clearly popular among many people—in addition to such massive revenue figures were indicators such as the appearance in 2004 on the New York Times Best Sellers list of the porn star Jenna Jameson's memoir, How to Make Love Like a Porn Star, and the proliferation across the country of clean, well-lighted adult content stores called Hustler Hollywood. Nevertheless, censorship efforts continued. The administration of President George W. Bush launched two high-profile federal obscenity prosecutions targeting the companies Extreme Associates, Inc., and JM Productions.

Community standards about sexual practices are critical in such obscenity prosecutions, as the Miller test for obscenity asks jurors to consider whether material is obscene in light of contemporary community standards. Importantly, the term contemporary means that what might have once been obscene may not be in the early twenty-first century; likewise, the term community means that what may be obscene in one state (and thus subject to censorship there) may not be obscene in another state. Indeed, the Miller test does not use a nationwide community standard but leaves it up to juries in the states to determine what their contemporary standards are and what can and cannot be censored. Some members of the adult entertainment industry in the early twenty-first century are thus cautious about shipping content into conservative states such as Utah and Georgia. Such a decision by companies to not to mail content to certain states is an example of self-censorship. It also means that picking the right venue—a more sexually conservative one—by the government in a federal obscenity prosecution can result in a censorship-friendly verdict and conviction. As time goes on, it remains to be seen how shifting values and mores about sexual practices in the United States will affect the government's censorship efforts. If citizens become more tolerant of different sexual practices that once were considered taboo and become more comfortable in viewing images of sexual conduct, then it will, in turn, become increasingly difficult for the government to win obscenity convictions and censor sexual content.

BIBLIOGRAPHY

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                                              Clay Calvert