Censorship and the Regulation of Expression
CENSORSHIP AND THE REGULATION OF EXPRESSION
Modern discussions of censorship center on the legitimacy of the regulatory structures and actions through which expression and communication are governed, and the extent to which these structures meet the requirements of democratic societies. In this entry, we first survey prominent historical examples of centralized censorship systems in the West. This history provides a context for a discussion of modern conceptions of censorship and issues associated with the term itself. We then turn to legal structures regulating speech and press in the United States, to government control of political speech, and to some modern-day controversies over the regulation of expression.
EARLY SYSTEMS OF GOVERNMENT CENSORSHIP
Traditional conceptions of censorship are rooted in rigid systems of ecclesiastic and governmental control over discourse and printing. The term itself derives from the office of the census in early Rome, where the censor served as both census taker and as supervisor of public conduct and morals. Before the advent of the printing press in the fifteenth century, most manuscripts in Europe were produced in monasteries, which controlled their production. Centralized systems of control over books developed largely in response to the invention of the printing press, which both church and state perceived as threats to their authority. In the mid-sixteenth century the Catholic Church issued the Index of Forbidden Books, which was enforced through compliance of the faithful, pre-publication screening of books, the burning of heretical tracts, and the persecution of heretics. In Protestant countries, the State generally assumed control over the publication of books. The English monarchy published its first list of prohibited books in 1529 and exercised its control through a contractual arrangement with the Stationers' Company, which, in 1557, was granted a monopoly on the production and distribution of printed materials. This charter remained in effect until 1694 when it was allowed to expire, primarily because of difficulties in its administration. These centralized mechanisms of control were replaced by less systematic methods, such as laws against seditious libel, through which speech that merely criticized government policies could be punished.
Although systems similar to these proliferated worldwide and continue to exist in modern-day authoritarian regimes, they are consensually viewed as incompatible with the practice of democracy. The history of free speech principles in the West coincides with the rise of democratic thought, as expressed in the writings of the eighteenth-century Enlightenment philosophers in France and in the influential political philosophies of John Locke, John Milton, and John Stuart Mill in England. The turn of mind that gripped Europe during this period is reflected in Locke's dictum that governments are the servants of the people, not the reverse, and in the insistence by each of these philosophers that self-governance cannot function under regimes where the circulation of ideas is dependent upon the whims of rulers. In modern political theory, Habermas (1989) considers the demise of systematic statecensorship to be a precondition of the rise of a "public sphere," an admittedly idealized realm of discourse—independent of both state and market—in which public issues can be deliberated in an environment where reason, not the status of speakers is honored.
THE RHETORIC OF "CENSORSHIP"
The use of language plays a critical role in framing thought and discussion about the legitimate control of speech. The term "censorship" most frequently arises in debates over the desirability of restricting access to one or another form of communicative content. However, the term is fraught with the complexities of multiple meanings, uses, and understandings. These complexities arise from the historical baggage it carries, the multiple contexts—popular, legal, and scholarly—in which it is used, and the highly contested nature of the debates in which it is invoked. Although systematic empirical analyses of the term have yet to be conducted, its meanings appear to differ along two dimensions, connotative and descriptive. Underlying the connotative force of the term is the strong conviction that suppression of speech is at best a necessary evil. As such, the term typically carries with it a highly pejorative connotation and a strong air of illegitimacy. Although First Amendment scholar Smolla (1991) informs us that "censorship was not always a dirty word," this facet of the term is now found in Webster's Dictionary, which states that it refers especially to control that is "exercised repressively."
Descriptive uses of the term differ according to the breadth of the domain covered. Under strict uses of the term, censorship means the prior restraint of information by government. It is this meaning that enables the Federal Communications Commission (FCC) to enact regulations that impose post hoc penalties for some forms of speech while at the same time declaring that "nothing in the Act [that governs the FCC] shall be . . . construed to give the Commission the power of censorship." In a second form of use, censorship refers to any form of government regulations that restrict or disable speech. Fines imposed by the FCC for "indecent" speech on radio fit this use, as the intent is to deter further indecency. In a third, less conventional usage, the term is modified to refer to nongovernmental restrictions on speech. For example, in one of the few instances in which the Supreme Court has applied the term to private concerns (Red Lion v. FCC, 395 U.S. 367, 1969), the Court stated that "The First Amendment does not protect private censorship by broadcasters who are licensed by the Government to use a scarce resource which is denied to others."
In each of these three descriptive domains the term "censorship" almost invariably carries its pejorative inflection. In its broadest sense, censorship signifies control over the means of expression; the determination of what content will not be communicated. This sense of the term is found in the work of Bourdieu (1991), for whom censorship is located not only in explicit prohibitions, but also in the everyday practices and power relationships that determine what is and is not said. It includes not only the sixteenth-century Inquisitor who decides which books will be burned, but also the twentieth-century film editor who leaves a scene on the cutting room floor. It includes both the intentional actions of individuals and, as importantly, the de facto results of impersonal forces that lead some ideas not to be expressed. This expansive meaning, which has yet to make significant inroads into popular discourse, is incompatible with the pejorative connotation found in everyday usage: If censorship is an integral part of everyday life, it cannot always, or even typically, be evil.
The prototypical understanding of "censorship" is firmly anchored at the point where the term's pejorative connotation intersects with governmental restrictions on speech. This can be seen in how the term is and is not used in legal and popular discourse. First, there are numerous forms of government restrictions that tend not to be thought of as censorship at all. Examples include punishment for perjury, threats, and libel, and prohibitions on misleading advertising. The core meaning of the term "censorship" tends to be applied to restrictions that are consensually deemed to be illegitimate; it tends not to be applied to restrictions that are consensually deemed to be legitimate, although they fall within the descriptive scope of the term. As such, the term typically serves to label those policies and actions that have been deemed undesirable rather than to describe a set of activities whose legitimacy could then be judged. A thorough sociological understanding of "censorship" would require a mapping of the shifting boundaries around which this legitimacy is withheld or conferred. For example, punishment for blasphemy was once considered legitimate, whereas penalties for inciting hatred against ethnic groups may not be thought of as "censorship" in the future. Second, in areas where the legitimacy of a restriction is under dispute, those who oppose the restriction tend to label it as censorship, whereas those who support the restriction attempt to distance themselves from the term.
This core understanding of the term—as illegitimate government action—leads to a number of consequences, two of which will be mentioned here. First, discussions of the legitimate control of expression are typically framed as battles between censorship, on the one hand, and Free speech, on the other: Free speech is the absence of governmental control. This framing of the communicative needs of a democracy—codified in the First Amendment—places a wholesome burden on governments to justify regulatory action. On the other hand, this framing excludes from discussion the positive role that governments can (and do) play in supporting these needs. It also excludes consideration of the instances in which private concerns and impersonal market forces can produce deleterious effects; ones that exclude particular viewpoints from the marketplace of ideas. The restrictions placed by health maintenance organizations (HMOs) upon what physicians can say to their patients (i.e., "gag rules") are but one of countless areas in which private institutions "censor" valuable speech.
Research is needed to uncover the role that the rhetoric of "censorship" plays in maintaining the conception of free speech as the absence of government regulation. It is apparently with the goal of disabling this entrenched dichotomy that some theorists have used the term—e.g., "soft censorship," "de facto censorship" "private censorship"—to refer to those private and impersonal forces that lead some forms of expression to be systematically excluded from the marketplace of ideas (e.g., Barbur 1996; cf. Post 1998). Barbur, for example, argues that "monopoly is a polite word for uniformity, which is a polite word for virtual censorship—censorship not as a consequence of political choices, but as a consequence of ineleastic markets, imperfect competition, and economies of scale . . ." (1996, pp. 137–138). Similarly, theorists like Baker (1998) use the term "structural regulation" to refer to government interventions designed to increase viewpoint diversity in the public forum. The goal of such rhetorical interventions is to reframe the discussion of "free speech" in a way that is meticulously sensitive to the threats of government incursions on speech, yet, that at the same time allow this discussion to incorporate both the speech-restricting characteristics of private action and the speech-expanding possibilities of government.
The second consequence of our core understanding of "censorship" is linked primarily to the distaste the term evokes. This pejorative connotation renders the term useful in singling out illegitimate expressive restrictions, and as a persuasive device in popular and legal debate. However, the pejorative nature of the term also disables it as a useful construct in discussions that aim to present a balanced account of contemporary debates over the control of expression. For example, to frame a controversy concerning the legitimacy of restrictions on hate speech as a debate over whether such speech should be censored is to ask, in effect, whether the illegitimate suppression of hate speech is or is not legitimate. This framing, though a popular one, clearly biases the discussion toward one side of the debate.
In this entry we attempt to use less loaded terms to describe the concerns that the term "censorship" evokes and the underlying controversies in which the term is typically used. Correspondingly, we strive to reserve the term "censorship" for those uses in which it is integral to the viewpoint being expressed.
LEGAL PRINCIPLES GOVERNING THE REGULATION OF EXPRESSION IN THE
The legal principles governing freedom of expression in the United States are based largely on interpretations of the First Amendment to the Constitution, whose "speech" and "press" clauses are combined in the statement that "Congress shall make no law . . . abridging the freedom of speech, or of the press." The amendment refers only to actions taken by the U.S. Congress, and it was not held to apply to laws made by the individual states until 1925 (Gitlow v. New York, 2688 U.S. 652, 1925) when the Court ruled that the fourteenth Amendment required that state laws not be in conflict with federal law. In addition to state and constitutional law, other major sources of legal regulation originate in common law (e.g., sedition, privacy) and administrative law (e.g., rulemaking of the FCC).
Despite the apparent clarity of the First Amendment language, both Congress and the states have crafted many laws that regulate freedoms of speech and press. These regulations stem primarily from three sources. First, the First Amendment is subject to widely varying interpretations. Some constitutional scholars conclude that at time the Bill of Rights was drafted, conceptions of freedom of expression referred only to prior restraints on speech. Others note ambiguities in the words "abridge" and "speech," and further question the intent of the framers of the Constitution. For example, do regulation of defamatory tracts, false commercial advertising, perjury, threats, violent obscenity, or nude dancing necessarily count as abridgments of speech (Sunstein 1993)? Some have also argued that the speech clause governs only political speech or that the press clause should not be interpreted to apply to tabloid entertainment that masquerades as news.
Second, the modern world differs from the world of the late eighteenth century. The framers could not have foreseen the technological advances that have brought us telephones, television, and the Internet. Neither could they have had in mind the concentrated corporate ownership or the advertising-driven programming that characterizes today's media. Some argue that government regulation is required in order to achieve the principles embodied in the Constitution.
Third, speech rights do not stand alone. For example, the rights of some to speak may conflict with the rights of others to be let alone or to be treated with dignity and equality. Also, the speech rights asserted by some inevitably conflict with the speech rights claimed by others.
In light of such issues, the clarity and simplicity that at first seem to characterize the First Amendment turn out to be illusory. As a result, scholars have developed theories of the underlying values that they believe free speech should promote in a democracy and should govern interpretation of the First Amendment. Although no theory is universally accepted as dominant, most agree with the judgment of constitutional scholar Emerson (1973) that the value of free expression lies in its ability to promote participation in the decision-making process by all members of society; to advance knowledge and the pursuit of truth; to promote individual self-fulfillment; and, by allowing dissent to be publicly vented, to promote a balance between stability and change.
Disputes over the role of government in regulating speech turn, in part, on which of these values is given precedence. Those who emphasize the role of speech in promoting deliberative democracy often favor an affirmative role of government to promote viewpoint diversity or to ensure that the distribution of viewpoints in the public sphere is somewhat reflective of their distribution in the community. In practical terms, this may lead to restrictions on the amount of money that corporations can contribute to political campaigns, to the enforcement of rights of access to media by citizens, to the strategic placement of "public forum" spaces on the Internet, to stricter enforcement of the antitrust laws as they pertain to media, or to government subsidies for valued forms of speech (Baker 1998). In many instances, the promotion of viewpoint diversity and balance may require the government to regulate or infringe upon the speech or property rights of some in order to advance the needs of deliberative democracy.
DIFFERENTIAL JUDICIAL TREATMENT OF DIFFERENT FORMS OF EXPRESSION
The corpus of First Amendment decisions shows that all speech is not equal in the protections it is afforded. Political discourse—broadly defined to include speech about social, cultural, and religious issues—is considered speech of the highest value. As a result, the government must demonstrate a "compelling" interest to warrant its restriction. Particularly, political speech cannot be directly restricted unless it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Advertising was long considered outside the purview of First Amendment protections and was subject to strict regulation. Commercial speech has experienced tremendous leaps in its status under the Court as many local restrictions have been declared unconstitutional. Obscenity lies at the lowest rung of speech and receives no protection under the First Amendment. Although the requirements for demonstrating that speech is obscene have become progressively more demanding, Congress and the states are permitted to ban the public dissemination of speech that meets these criteria (see below). Depending upon how they are classified in terms of value to society, other forms of speech receive greater or lesser protection. For example, unlicensed medical advice and misleading advertising can be restricted through a "balancing test" which shows that the harm that stems from suppressing them are fewer than the harm they cause. A "balancing test" which shows that the harm that stems from suppressing them are less than the harm they cause.
Current First Amendment doctrine also reflects a second, cross-cutting mode of classification according to which proposed regulations are categorized as content neutral, content based, or viewpoint based. Of the three, content neutral regulations must pass the lowest constitutional hurdle whereas viewpoint-based regulations must pass the highest. An example of content-neutral regulations might include rules that designate sound-level restrictions on expressive activities, such as music in Central Park. Examples of viewpoint-based restrictions might include a ban on a gay parade or on either Democrat or Republican billboards. Regulations on expression that are content based, but viewpoint neutral face a high, but not insurmountable, constitutional hurdle. For example, in their contractual relations with cable companies, municipalities have been allowed to require the companies to provide local news and sports, and the federal government has been allowed to prohibit all partisan political campaigning on army bases.
The application of First Amendment law is also a function of the technological environment, or medium, in which expression is conveyed. Except through the sporadic use of antitrust laws, the Court has been least likely to permit regulations of print-based news and most likely to allow regulations of broadcast media. Cable television has fallen somewhere in between, with regulations reflecting the monopolistic control that companies exert over cable access to individual households and the fact that municipalities own the property through which television cables are distributed. Telephone companies are classified as "common carriers," which interdicts their editorial control over the information that passes through their wires. The newest form of communication, the Internet, has so far been granted the highest rung of protection from government regulation.
The willingness of the Court to allow government regulation of broadcast media lies largely on three rationales: public ownership of the airwaves, scarcity of the broadcast spectrum, and "pervasiveness" of the broadcast signal. First, the airwaves through which broadcast signals are transmitted are owned by the public and licensed on a renewable basis to radio and television broadcasters. Second, only a limited number of broadcast signals can coexist in any given segment of airspace (scarcity principle). In other words, the broadcast spectrum is a scarce resource, one that has historically required some regulatory body to decide which of the many interested broadcasters will be allotted the frequencies that exist. The management of these tasks is the function of the FCC, which was authorized to regulate broadcasters in the "public convenience, interest, or necessity." In interpreting the "public-interest" clause, the FCC has issued a number of requirements, including, for example, a modicum of public-interest programming such as local news, rights of reply to those attacked in political editorials, and requirements to air political advertisements. Regulations governing the latter are governed by a "no censorship" clause, whereby the FCC deprives stations of editorial rights over political advertisements. Although most of these regulations are aimed to increase viewpoint diversity, broadcasters often argue that FCC rules infringe upon their rights to free speech. Finally, the Supreme Court's judgment that radio and television broadcasts are "pervasive" refers to the assumed inability of viewers and listeners to fully control their own access, or that of their children, to unexpected program content. The susceptibility of audience members to be caught unawares by programming that offends them, or that they deem harmful to their children, has led the court to characterize such broadcasts as an "uninvited intruder" into the privacy of a viewer's abode. Primarily to provide a "safe haven," for children, the Court has allowed time restrictions on the broadcast of "indecent" or "patently offensive" programming.
Given the different levels of protection afforded by the First Amendment for different forms of expression, the determination of which category of speech, which kind of regulation, and which form of media a given case will be deemed to embody, is of critical importance. Levels of protection for different forms of speech have changed over time and there is no reason to think that they will not continue to do so. Movies were long considered a form of crass entertainment, outside of First Amendment protections, and birth control information was once classified as obscene. In the not-distant future, the plethora of programming opportunities on the Internet is likely to result in Supreme Court challenges of the scarcity principle upon which public-interest broadcast regulations are based. Particularly in the area of new media, the difficulties inherent in determining how to categorize a particular speech situation often leads the categorical approach to cede to an approach in which the harms of competing outcomes are less formally "balanced" against each other. Projects for sociology might include examination of the social underpinnings of the origin of these categories, of the application of these categories to different forms of speech, and of the evidentiary criteria used to assess both the harms of speech and the harms of regulation. For instance, a near consensus has been reached in the scientific community that media violence leads to social aggression and violence (e.g., Donnerstein and Smith 1997), whereas evidence of harms done by "indecent" broadcasts is anecdotal. What then are the social and political processes that lead one and not the other to be regulated?
PUBLIC SPEECH, PRIVATE SPACES
As can be seen in the language of the First Amendment, the central concern of the framers of the Constitution was to protect the private realm from domination by the state. The First Amendment itself has little to say about the control that private organizations exert over the expressive rights of individuals, or the control that private media companies exert over the communication of public issues. Examples of private-domain controversies include disputes over the "gag rules" that prohibit physicians from discussing alternate, more expensive treatments; corporate contracts that prevent employees from publicizing questionable employer practices; and control over the correspondence that employees send over company e-mail systems. An evolving legal controversy surrounds the growing replacement of public forums—sidewalks, streets, and public parks—by private ones, such as shopping malls, condominiums, and gated communities. Should the political protesters who once convened in front of the local store be barred from entry to the shopping mall where the store now stands? Should those gathering signatures for political initiatives be excluded from gated communities? These issues pit the property rights of owners against the expressive needs of communities. Supreme Court decisions have given individual states some leeway in deciding which and when one of these interests is the more compelling. Related issues arise in the domain of media, where some point to the growing concentration of media ownership (Bagdikian 1997), the presence of only one daily newspaper in most U.S. cities, and the "skewing" of media content away from the interests of the poor (Baker 1998) as evidence that the marketplace of ideas is not fully served by unregulated economic markets (Sunstein 1993).
A strict reading of the First Amendment suggests that the government has no right to intercede to regulate communication between a corporation and its employees (harassment rules provide an exception) or to intervene when privately owned media fail to meet the needs of a community. Many argue that this is as it should be: employees can always seek employment elsewhere and those whose speech is barred in one forum can always seek another. Others insist that differences between the conditions of modern society and those at the time the Constitution was drafted warrant the extension of communicative rights beyond those provided in the First Amendment.
THE LEGAL SUPPRESSION OF SPEECH DEEMED TO THREATEN THE
A central rationale for laws restricting the expressive activities of people and press is to preserve national security. The chief mechanisms of enforcement under democratic governments have been restrictions on governmentally controlled information, laws prohibiting seditious libel, and, in times of war, systems of prepublication clearance of press dispatches. Most agree that there are some circumstances, particularly in times of war, in which some national security restrictions are necessary. However, a strong proclivity exists to abuse these laws to protect policies or governments that are losing, or have lost, their base of popular support.
The prototypical conception of censorship is firmly rooted in governmental restrictions on speech that is critical of government, yet poses significant threats to security. The law of seditious libel was imported to the United States from England, where, during the eighteenth century, it served as a principal vehicle through which governments attempted to stave off criticism and to control public opinion. The power of seditious libel laws lay largely in their breadth—advocacy of an "ill opinion" of government was considered actionable—and from the selectivity with which they could be enforced. During most of the eighteenth century, these cases were decided by judges rather than juries, and the truth of a charge was not a defense until the nineteenth century.
The climate in which the Constitution's press clause was drafted was one in which a central threat to viewpoint diversity was posed by governments who could use their monopolies on legitimized force to control the marketplace of ideas. The most noted illustration of this in colonial America was the case of John Peter Zenger, whose newspaper, the New York Weekly was launched in 1734 as the only voice of opposition to the widely reviled colonial Governor, William Cosby. When the newspaper's opening salvo attacked Cosby's arbitrary exercise of power, Zenger was promptly charged with seditious libel. After spending eight months in jail, Zenger was acquitted by a jury (reluctantly allowed in this case), who ignored the judge's instructions that the truth of a charge was irrelevant. Although many thought the First Amendment would change such abuse, Congress soon passed the Sedition Act, which was used by President John Adams, a Federalist, to silence criticism launched by Republican supporters of Thomas Jefferson.
The Sedition Act was allowed to lapse when Jefferson took the Presidency and would not return until World War I. However, in the years during which the Constitution did not apply to the states, statutory attacks on specific viewpoints could be fierce at the state level. Louisiana's pre-Civil War statute prosecuting speech that sowed "discontent among the free population or insubordination among the slaves" provides just one example of how law could be enlisted in the service of majoritarian predjudices. When the federal government returned to the sedition business with passage of the Espionage and Sedition Acts, the country was characterized by a climate of isolationism and a receptive ear to the tenets of Socialists, who opposed the entry of the United States into World War I. The Sedition Act rendered it illegal to speak against the draft or to advocate strikes that might hinder wartime production. It resulted in more than 800 convictions, including that of Socialist presidential candidate Eugene Debs. Prosecutions for political speech continued after World War II, when provisions of the 1940 Smith Act were used as the legal arm of an extensive and popularly backed campaign to suppress Communist viewpoints in the press, the workplace, and the entertainment media.
A significant judicial outcome of cases stemming from the enforcement of these acts was the evolution of the criteria used to determine whether political speech warrants conviction. Whereas it had previously sufficed that expression result in only a "bad tendency" to cause harm, these cases eventually produced today's criterion of "immanent lawlessness." Had the expressive restrictions of the first part of the century been in place during the civil rights movement and the Vietnam War, much of what was said and written during these periods would have resulted in federally sanctioned jail sentences.
National security interests have also been invoked to justify secrecy classification systems, the labeling of foreign "propaganda," and the use of contract law by agencies including the Central Intelligence Agency and the Voice of America to require prepublication clearance of communications by both current and former employees.
Compulsory systems of prepublication clearance during wartime were first used during the Civil War and, with the notable exception of Vietnam, have continued to be used in all major military conflicts. The exception of Vietnam was prompted by the government's fear that prior review systems would alienate the press and by the fact that readily available nonmilitary air transportation in the area would have rendered enforcement difficult. However, there is credible evidence that military officials systematically misrepresented progress by the United States during the war and that media routines and practices rendered them susceptible to this manipulation (Hallin 1986).
Despite the consensus on the need for some form of press management system to protect the lives of soldiers during wartime, controversies arise over the scope and mechanisms of enforcement. Of particular concern to press and public is the fear that controls ostensibly designed to protect the lives of soldiers are used instead to manage public opinion at home.
The term pornography comes from the Greek words for "prostitute" and "write," and originally referred to writings about prostitutes and their activities. Today, pornography is broadly used to mean material with explicit sexual content. Like the word censorship itself, however, the definition of pornographic or obscene material is often contested. For example, feminist writers often draw a distinction between pornography, which combines sexuality with abuse or degradation, and erotica, which is sexually arousing material that respects the human dignity of the participants. A distinction is also sometimes drawn between hard-core pornography, which shows actual sexual intercourse or penetration, and soft-core pornography, which may be only suggestive of these activities. Child pornography is prohibited in most nations, and restrictions on its production and distribution tend to be noncontroversial.
In the United States, the Commission on Obscenity and Pornography (1970) and the Attorney General's Commission on Pornography (1986) have provided recommendations for government action regarding pornography. The first report suggested that pornography should not be regulated by law, while the second rejected the claims that pornographic material was harmless and urged prosecution especially for materials that contained violence or degradation. These differing conclusions highlight the ongoing tensions between individual rights and perceived community needs, as well as changes in the progress and interpretation of research on the effects of pornography. The uses of the conclusions drawn in these and other social-scientific reports are of particular sociological interest. For example, the Nixon Administration was quick to dismiss the conclusions of a report (which it had itself commissioned) that were contrary to its political goals. Here, as in other contested areas of expression, the political climate in which research findings are interpreted is often the deciding factor in how research is used.
Regarding the related question of obscenity, in 1973 the Supreme Court (Miller v. California, 413, U.S. 15, 1973) established three criteria for determining whether a given work was obscene: An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest; the work depicts in a patently offensive way sexual conduct specifically defined by applicable state law; and the work in question lacks serious literary, artistic, political, or scientific value.
Political struggles over the regulation of pornography have been especially intriguing because they have brought together conservatives and feminists, groups traditionally on opposite sides of the ideological spectrum. Although both sides may support banning pornography, they have different reasons for doing so, and the scope of the material they wish to have regulated differs as well. Feminists focus on the degrading character of pornography, whereas conservatives view pornography as morally corrosive. Antipornography activists such as Catherine MacKinnon have defined pornography as a civil rights issue, arguing that pornography itself is a form of sexual discrimination; by presenting women in dehumanizing ways, pornography subordinates them.
Although there is wide variation in pornographic content, pornography often presents what many consider to be an unrealistic view of sexual relations. Encounters take place most often between strangers, not in the context of enduring relationships; participants are sex objects rather than complete individuals. Sexual activity always results in ecstasy, and consequences (such as pregnancy or disease) are nonexistent.
Empirical research on the effects of pornography has shown a range of negative effects. In typical experimental studies, participants are randomly assigned to pornographic stimuli or nonpornographic stimuli, and their attitudes, behaviors, or physiological reactions are then assessed. There are also paradigms assessing prolonged exposure, including ones in which participants return to the laboratory for multiple sessions of exposure to pornography, to better simulate real-life consumption patterns. Among other effects, studies have shown that after exposure to pornography, participants viewed rape as a less serious crime, overestimated the popularity of less common sexual practices, and showed greater callousness toward women. Furthermore, pornography consumers have shown weaker beliefs in the desirability of marriage and having children, and stronger beliefs in the normality of sexual promiscuity. Ironically, pornography has also been shown to reduce viewers' satisfaction with their own sex lives and partners.
Although these outcomes have been found in a variety of studies using different research procedures, not all studies have confirmed these findings. Some critics of this research argue that rape and other antisocial sexual behavior existed even before pornography became widely available, and that forces besides pornography play a greater causal role in antisocial behavior. Others argue that the increased levels of aggression, hostility, or bias often found in experimental studies of pornography might be traced to differences between the experimental and naturalistic environments in which pornography is viewed: particularly, it is argued that these effects may be due to the lack of opportunity for men to ejaculate in the experimental setting. They also caution that the political biases of investigators may influence the interpretation of results. Others believe that even if the effects research is accurate, the costs of suppressing pornographic material—as measured in state encroachment on individual autonomy—outweigh any benefits that might be gained.
An argument sometimes raised for controlling or eliminating pornography in the form of images (rather than words) is that the individuals pictured in the pornographic photos and films suffered harm or coercion during the creation of the materials. A counterpoint to this argument is provided by Stoller and Levine (1993), who have conducted in-depth ethnographic style interviews with producers, performers, and other employees in the pornography industry. In this work, the researchers allowed the people who create pornography to speak in their own words, providing both defenses of pornography and insight into why individuals choose, for better or for worse, to work in the pornography industry.
From the advent of the printing press onward, most efforts to legally regulate expression have focused on various forms of mass communication. Efforts to restrict speech can also target communication in interpersonal settings. One such example can be found in attempts to place legal limits on hate speech; defined as harassing or intimidating remarks that derogate the hearer's race, gender, religion, or sexual orientation.
Those who support regulating hate speech compare it to "fighting words," a category of speech not protected by the First Amendment, or argue that it creates a "hostile environment," which violates provisions of the Civil Rights Acts of 1964 and 1990. Champions of hate speech regulations cite the harms its victims suffer: these may range from feelings of exclusion from a community, to the experience of debasement that leads students to skip classes or distress that leads them to leave school. In short, the liberty of a speaker to harass may deny the hearer's right to equality. Critics of hate speech codes cite the administrative excesses they allow. For example, the student guide to the University of Michigan code stated that students could be punished for making a comment "in a derogatory way about someone's appearance."
Following an increase in reported incidents of hate speech in the late 1980s and early 1990s, many universities in the United States adopted policies forbidding discriminatory verbal harassment. However, as they affect public institutions, these rules have been declared unconstitutional in the courts, in part for being either too broad—affecting too many forms of speech—or for being viewpoint based (see above).
The problems inherent in drafting laws that affect only the speech these rules target can be seen in comparing the provisions of the University of Michigan code with provisions in the bill advanced by Senator Jesse Helms to limit what kinds of works could receive funding from the National Endowment for the Arts. Among the Helms bill's other planks (aimed at homoerotic art, for example), it sought to prohibit funding of "material which denigrates . . . a person, group, or class of citizens on the basis of race, creed, sex, age . . ." Similarly, the Michigan code sought to bar speech that "stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex . . ." and also "creates a hostile environment." The projects targeted by the Helms bill included one with a crucifix immersed in a bottle of urine. This work could also be a violation of the Michigan code if it were to be hung in an area frequented by offended Christians. Difficulties of this sort have prompted those supporting hate speech codes to argue that this is one area in which viewpoint-based speech regulations should be allowed: that, similar to laws in Germany that selectively ban Holocaust denial, speech laws in the United States should be allowed to account for the history of discrimination experienced by some groups, but not others. Critics say that viewpoint discrimination of this sort would open the floodgates for future laws that selectively target viewpoints that happen to be deemed undesirable.
The hate speech debates highlight a fundamental dilemma faced by modern democracies: to what extent are we willing to tolerate speech whose very goal is to silence the speech of others, or to deny their rights to equal education or employment? Efforts continue to craft codes that are narrow in scope and that meet constitutional muster, with even staunch civil libertarians favoring prosecution when hate speech poses a clear and present danger of violence (e.g., Smolla 1992). The hate speech debates also mark a significant turn in the rhetoric of "censorship," one in which advocates of speech codes have attempted to enlist the power of this term in their favor. This rhetorical strategy is exemplified by the argument of Catharine MacKinnon, one of the staunchest code supporters, that "the operative definition of censorship . . . shifts from government silencing what powerless people say, to powerful people violating powerless people into silence and hiding behind state power to do it" (1993, p. 10).
BATTLES FOR CONTROL OVER SCHOOL CURRICULA
Schools are the arena in which the values of open deliberation and the constructive exchange of ideas are most prized in democratic societies. It is with some irony, then, that schools are also the domain in which some of the most concerted efforts to limit the scope of deliberation have been focused. The content of textbooks used by most students in the United States has been selectively tailored to the ideological viewpoints of organized pressure groups, and at least one-third of high school students are not exposed to books and films that parents and pressure groups have successfully purged from their educational experience (Davis 1979).
From the vantage point of most teachers, parental and school board mandates to omit works of literature from the curriculum are viewed as illegitimate challenges to their expertise and infringements on their rights as professionals. In effect, teachers believe that they are in the best positions to judge the educational needs of the students they teach. However, the tradition of academic freedom that characterizes both public and private universities is rarely present in elementary and secondary education. Public school curricula are generally approved by the state or by school boards that actively regulate what is taught and what students read. School board members tend to be elected to their positions and are particularly responsive to what teachers view as unreasonable censorial demands.
Parents, on the other hand, see their interventions in the school curricula as a legitimate exercise of control over what their children read in school. They justify their decision, in part, with respect to the compulsory nature of early schooling, where they see their children as captive audiences. A number of well-funded organizations have exerted strong influences on both school boards and textbook adoption processes to influence what does and does not gain entry to the schoolroom.
In money terms, the largest impact of pressure groups has been on textbook publication and adoptions. Most states place orders for textbooks for schools in the entire state. Because publishers cannot provide multiple versions for different regions or states, texts are geared to the largest markets, usually Texas and California (Del Fattore 1992). As a result, publishers provide their writers with guidelines that govern topics and viewpoints that are currently deemed objectionable (or desirable) in the largest states that engage in statewide adoptions. In this way, pressure groups in one state, such as Texas, often exercise veto power over the entire country's textbook market. Local communities in small and mid-size states exercise a relatively small influence on content.
Community protest and lawsuits are the principal vehicles used to challenge textbooks and reading lists in literature, social studies, and health education. An illustrative controversy—at McClintock High School in Tempe, Arizona in 1996—highlights the susceptibility of teachers and schools to parental and community demands. In this case, a parent of a McClintock High student protested the assignment of Mark Twain's classic The Adventures of Huckleberry Finn because the word "nigger" is included in its dialogue. In the ensuing controversy, some held that if schools were forced to shield students from exposure to the term, such intervention would undermine the legitimate authority of teachers and would endorse ignorance of American history and the practice of censorship.
We may ask whether the students grasp the distinctions among Twain's stance on racism, the use of the term "nigger" by a character in the novel, and societal endorsement of the term then and today. Of course the crux of such conflicts also rests upon the educational and social contexts in which sensitive, taboo, or potentially affronting topics that appear in the world of fiction are discussed. For instance, if The Adventures of Huckleberry Finn or any other literature is misused to communicate racism, the problem is larger than the choice of which books are read in the classroom.
Unfortunately, the social context of this controversy added complexity. School benches at the same high school were etched with the words "I hate niggers." Of course, there is an important distinction between eliminating the word "nigger" from The Adventures of Huckleberry Finn and removing "I hate niggers" from a school bench. The etching creates a hostile educational and social environment in a way that the assignment of book should not do, as long as teachers and schools are doing their jobs well. In controversy after controversy, these distinctions are as important as they have been difficult to establish. Often teachers simply capitulate to perceptions of the most conservative or protective community elements and use readings that are sure to be "safe" (Davis 1979).
In 1990s most lawsuits were mounted by fundamentalists who condemned many books on school lists as anti-Christian, antiparent, antigovernment, immoral, and obscene. The challenged books change from year to year, but frequently banned books have included Of Mice and Men (Steinbeck), Catch 22 (Heller), and Catcher in the Rye (Salinger). Fundamentalists are effective out of all proportion to their numbers because of the intense dedication they bring to their cause.
Research has yet to provide a sound basis for confidently assessing the effects of reading on school children's beliefs. When a story contains a character's arguments against the existence of God, might students question their faith? Qualitative research, particularly, has shown that students take widely divergent readings from stories and that these understandings are frequently critical of the viewpoints adopted by both characters and writers.
Can we maintain that literature gives readers insights into life? That it can change lives? Parents—former pupils, after all—have been encouraged to believe that great works contain great truths. It is not surprising that some of those parents who discern arguments against the social order in their children's readings seek to eliminate the threat from children's lives. Eventually, these ongoing and recurring controversies may be illuminated by scientifically grounded understanding of the social and cognitive foundations of narrative impact (Green, Strange, and Brock 2000).
One of the strongest arguments for keeping school curricula open to ideas to which we currently object or to heinous artifacts of historical prejudices is that one of the important functions of education is the development of critical inquiry. From this perspective, to turn the schoolhouse into an environment where only "safe" ideas are encountered is to do students and society a disservice. This position is rendered more compelling in the context of the current media landscape which makes it certain that students will also encounter these ideas outside the context of a critical learning environment. This argument, of course, rests on the assumption that schools are, in fact, places where critical inquiry is fostered.
THE SOCIAL PSYCHOLOGY OF "CENSORSHIP"
When information (e.g. a book, a film, a speech, etc.) is explicitly "censored" do people desire that information much less—in accordance with the presumed intention of the censoring agents? Are people less likely to be influenced by a point of view when its expression has been prohibited by those in authority? To answer such questions, the impact of the label "censored" can be studied experimentally by exposing people to a communication (or a "taste" of a communication) to which "censored" is affixed and by then observing the consequences of such a juxtaposition of label and communication on their values and beliefs. When this careful experimental work has been done, the answer to both of these questions is "no." Numerous experiments have shown that explicit censorship often backfires: the prohibition of communications leads people to covet them and to change their attitudes in the directions the censored material advocates.
A social-commodity theory (Brock 1968) accounts for the backfire effect of censorship in terms of the psychology of supply and demand. All public communications are perceived to have some limits on their distribution, and message recipients usually have some dim awareness of the extent of these limits. However, if the distribution is explicitly limited by government statute, or other overt interventions, awareness of scarcity is sharply heightened and the desirability and impact of the communication are consequently increased. When some information becomes less available, this unavailability augments the information's value. A decrease in supply causes an increase in demand, and perceived censorship invariably entails a perceived decrease in supply.
Experimental social psychology has illuminated the impact of censorship by showing that (a) an individual can be influenced by a censored communication, even without actually receiving it, (b) the backfire effect increases as the penalties for violating censorship are increased; and, somewhat paradoxically, (c) the backfire effect is greater when the prohibition applies selectively to one group of people. For example, for a seventeen year old, a film that was prohibited to persons under eighteen years of age would be more desirable than a film that was prohibited to all persons. In the former case, the censorship has more impact because it is viewed as violating a personal freedom; freedom to view a film is more threatened if there are many other people (all persons over eighteen years, say) who do have that freedom.
The experimentally grounded insights from social psychology—that explicit censorship usually doesn't work as planned, and that it often backfires—is often not factored into the planning and interventions of censoring agents. In some instances this may be good, as it reduces the effectiveness of those who attempt to limit information that is vital to public deliberation. In some instances, public information officers appear to have become aware that perceptions of censorship can hamper their efforts. In the 1970s, the Department of Defense directed that the term be completely dropped. This seemingly cosmetic change affects the way news coverage labels the sources of news reports: what was once attributed to the Office of Censorship, became, during the Gulf War, a report from the Joint Information Bureau.
Research on related forms of content advisory labels, such as "parental discretion advised," "viewer discretion advised," and the more specific codes signaling levels of violence, nudity, sex, and profanity on television, has begun to reveal the extent to which different kinds of labels affect the selection choices of boys and girls of different ages (Cantor and Harrison, 1994–1995). In several cases, these studies have revealed a "backfire" or "forbidden fruit" effect similar to the pattern found in reactions to the censorship label. The finding that restricted materials become more attracted—which depended on age, gender, and the kinds of labels used—have been extended to video game and music advisories.
Advocates of requiring such labels argue that their goal is not to limit communication at its source, but rather to provide parents and children a greater degree of control over their communication choices. Some critics argue that, regardless of intent, these labels lead producers to alter their productions in order to avoid undesirable labeling. As with the "censored" label, the effects on consumption of the targeted content will depend not only on how the label affects desirability of the materials, but also on the ultimate availability of the labeled content. If parents use advisory labels to preselect their children's television viewing choices, these labels will effectively place greater selective control in the hands of parents. The probability that parents will do so is heightened by technologies like the "V-chip," through which parental choices can be automated. Similar labels may have a much different effect on the selection of music and video games, where children are more likely to make their own media selections.
Research has also begun to examine the social and psychological origins of calls to restrict deemed harmful to children or to society at large. Studies of the "third person effect" suggest that support for restrictions on such content may sometimes be grounded in systematic overestimates of the effects of media on other persons. Sociological treatments of the rise of public alarm are particularly relevant here. Nicola Beisel's (1992) account of the late-ninteenth-century attack on obscenity that resulted in the highly suppressive Comstock Laws is one example of a fruitful direction that research might take.
Whereas most democratic nations have codified and enforced protections against the most blatant forms of government suppression of sociopolitical speech, governments around the world continue to engage in harsh repression. The bounty placed on the life of Salman Rushdie in retribution for his book, The Satanic Verses, is a well-publicized instance of the most egregious form of governmentsanctioned repression. However, a variety of both legal and extra-legal tactics continue to be used worldwide to protect those in power. To cite just two typical examples from 1999: A court in Kazakhstan suspended publication of an opposition newspaper for the three months preceding presidential elections on the pretext that it failed to indicate the place of printing on its masthead; and, shortly after the director of the Cameroon newspaper Le Messager-Populi was released from a ten-month prison sentence for spreading "false information," the paper's founder was driven from the country upon threats to his life (see generally, Webb and Bell 1998). Typical extra-legal means of suppressing speech critical of the government include awarding and withdrawing governmental advertising contracts, the licensing of journalists, controls on distribution of newsprint, and, more generally, government ownership and control of broadcast media.
Controls at the site of reception provide another means of suppressing viewpoints that lack the official stamp of approval. For example, a number of countries pose outright bans on ownership of satellite receiving dishes. However, new technologies, particularly the Internet, pose serious threats to the control of political information by authoritarian regimes. The Internet's impending threat is linked to the growing dependency upon computer-based communications in the marketplace. Authoritarian governments appear to be faced with a Hobson's choice: allow connections to the vast and diverse information resources of the Internet or face economic stagnation.
Particularly when looking beyond suppressive controls on political speech, it is important to recognize the distinction between government-controlled media and government-funded media. The BBC is but one example of the governmentfunded, public television stations that have developed reputations for independent news coverage that gives voice to diverse perspectives of both majority and minority interests. Publicly-subsidized television in Holland instantiates an intriguing model of "free speech" through a system that allots television channels and channel space on a proportional basis to key institutions and sociocultural groups. Public television stations in many European nations seek independence from the demands of both government and marketplace through nongovernmental boards of trustees and through stable funding mechanisms not subject to annual tampering by politically driven legislatures.
INTERNATIONAL INFORMATION FLOW
A handful of news agencies, led by the Associated Press (AP), Reuters, and Agence-France Presse dominate the news that people around the world read about issues and events originating outside their borders. The dominance of both print and broadcast news by a small group of companies is particularly felt in developing nations, ones lacking the capital to compete with the economies of scale enjoyed by entrenched foreign corporations. The concern generated in developing nations focuses not only on the news they receive from abroad, but also on the images that news agencies project about them. This concern is compounded by news agency values that typically stress large-scale violence and disruption—"coups and earthquakes" as the saying goes—and ignore the cultural achievements and developmental efforts for which these countries would like to be known.
Those who control international news flows view their position of dominance as a desirable and natural outcome of free-market practice. Those in developing nations view the imbalances as a form of de facto neo-imperialism. This view finds its historical roots in the late-nineteenth and early-twentieth centuries, when three European news agencies, Havas (France), Wolff (Germany), and Reuters (England) carved the world into three areas of monopoly control, ones that built upon their respective colonial empires. Some insight into the present-day perspective of developing nations can be gained by examining how news about the United States was communicated in the early part of the century. During those years, the "Ring Cartel" prevented AP from sending news about the United States beyond its borders. According to Kent Cooper, the AP manager who fought to dismantle it, the cartel decided "what the people of each nation would be allowed to know of the people of other nations and in what shade of meaning the news was to be presented." It was Reuters who "told the world about Indians on the war path in the West, lynchings in the South, and bizarre crimes in the North. . . . The charge for years was that nothing credible to America was ever sent" (cited in Frederik 1993, p.39). To those in developing nations, it is the AP who now plays the role of cartel.
Several proposals have been advanced to correct the imbalance in international news flows. Notable are those advanced through the United Nations Educational, Scientific, and Cultural Organization (UNESCO) during the late 1970s and early 1980s. These calls for a "New World Information Order" (NWIO) generated immediate and prolonged controversy, and provoked the United States to withdraw from UNESCO in 1985. The contours of these debates are as intriguing as they are complex, reflecting sharp differences in news values, international economic principles, and the very definition of "free speech." Whereas NWIO supporters liken the values of developmental journalism to current trends in the United States, such as "civic" journalism, its detractors suggest that the values of developmental journalism cater to the needs of local authority. And whereas NWIO critics argue for a "free flow" of information across international boundaries, NWIO supporters advocate a "balanced flow." Although these issues remain unresolved, promising developments include the rise of regional news agencies, programs such as CNN's World Report, in which locally produced broadcasts gain worldwide exposure; and prospects that the Internet will facilitate the international communication of locally produced news.
The increasing global dominance of U.S. movies and television programming have prompted the European Economic Community and Canada, among other regional and national entities, to seek ceilings on imported cultural goods as exceptions to free trade principles in international trade agreements. These demands reflect the belief that when applied to the area of expression, free market principles support forms of "soft" or "de facto censorship" in which locally produced speech is driven from the marketplace of ideas (cf. Frederik 1993). More generally, these demands reflect the growing tension between the ongoing course of globalization and the threats to cultural sovereignty it entails.
Bagdikian, B. 1997 The Media Monopoly. Boston: Beacon Press.
Baird, R.M., and S.E. Rosenbaum 1991 Pornography: Private Right or Public Menace? Buffalo, N.Y.: Prometheus Books.
Baker, C.E. 1998 "The Media that Citizens Need." University of Pennsylvania Law Review 147, 317.
Barbur, B. R. 1996 Jihad vs. McWorld: How Globalism and Tribalism are Reshaping the World. New York: Ballantine Books.
Beisel, Nicola. 1992 "Constructing a Shifting Moral Boundary: Literature and Obscenity in Nineteenth-Century America." In M. Lamont and M. Fournier, Eds., Cultivating Differences: Symbolic Boundaries and the Making of Inequality. Chicago: University of Chicago Press.
Bourdieu, P. 1991. "Censorship and the Imposition of Form." In J.B. Thompson, Ed. Language and Symbolic Power. Cambridge, Mass.: Harvard University Press.
Brock, T.C. 1968. "Implications of Commodity Theory for Value Change." In A.G. Greenwald, T.C.Brock, and T.M.Ostrom, eds. Psychological Foundations of Attitudes. New York: Academic Press.
Cantor, J., and K. Harrison 1994–1995 Ratings and Advisories for Television Programming." In National Television Violence Study: Scientific Papers. Los Angeles: Mediascope Inc.
Christenson, Peter G., and Donald F. Roberts 1998. "It's Not Only Rock and Roll: Popular Music in the Lives of Adolescents." Cresswell, N.J.: Hampton Press.
Court Case Citation, Gitlow vs. New York, 268 U.S. 652, 1925.
Court Case Citation, Red Lion Broadcasting vs. FCC, 395 U.S. 367, 1969.
Court Case Citation, Miller vs. California, 413 U.S. 15, 1973.
Curran, J., and M. Gurevitch 1996 Mass Media and Society. London: Edward Arnold.
Davis, J. Ed. 1979. Dealing with Censorship. Urbana, Ill.: National Council of Teachers of English.
Deetz, S. A. 1992. Democracy in an Age of Corporate Colonization: Developments in Communication and the Politics of Everyday Life. New York: State University of New York Press.
Dennis, E. E., et al. 1991. The Media at War: The Press and the Persian Gulf Conflict. New York: Gannett Foundation Media Center.
Donnerstein, E., and S.L. Smith 1997. "Impact of Media Violence on Children, Adolescents, and Adults." In S. Kirschner and D. A. Kirschner, Eds., Perspectives on Psychology and the Media. Washington, D.C.: American Psychological Association.
Emerson, T. I. 1973 The System of Free Expression. New York: Random House.
Foerstel, H.N. 1997. Free Expression and Censorship in America: An Encyclopedia. Westport, Conn.: Greenwood Press.
Frederick, H.H. 1993 Global Communication and International Relations. Belmont, Calif.: Wadsworth.
Green, J. 1990 The Encyclopedia of Censorship. New York: Facts on file.
Green, M.C., J.J. Strange, and T.C. Brock (eds.) 2000. Narrative Impact: Social and Cognitive Foundations. Mahwah, N.J.: Erlbaum Associates.
Habermas, J. 1989 The Structural Transformation of the Public Sphere. Cambridge Mass.: Polity.
Hallin, D. C. 1986. The "Uncensored War": The Media and Vietnam. New York: Oxford University Press.
Jensen, C. 1997 20 Years of Censored News. New York: Seven Stories Press.
MacKinnon, C. A. 1993 Only Words. Cambridge, Mass.: Harvard University Press.
Post, R.C. (ed.) 1998 Censorship and Silencing: Practices of Cultural Regulation. Los Angeles: The Getty Research Institute for the History of Art and the Humanities.
Shoemaker, P.J., and S.D. Reese 1996 Mediating the Message: Theories of Influences on Mass Media Content. New York: Longman.
Smolla, R.A. 1993 Free Speech in an Open Society. New York: Vintage Books.
Sunstein, C. 1993. Democracy and the Problem of Free Speech. New York: Free Press.
Webb, W.L, and R. Bell (eds.) 1998 An Embarrassment of Tyrannies: Twenty-Five Years of Index on Censorship. New York: George Braziller.
Zillmann, D., and J. Bryant (eds.) 1989 Pornography: Research Advances and Policy Considerations. Hillsdale, NJ: Erlbaum.
Jeffrey J. Strange Melanie C. Green Timothy C. Brock
"Censorship and the Regulation of Expression." Encyclopedia of Sociology. . Encyclopedia.com. (September 26, 2018). http://www.encyclopedia.com/social-sciences/encyclopedias-almanacs-transcripts-and-maps/censorship-and-regulation-expression
"Censorship and the Regulation of Expression." Encyclopedia of Sociology. . Retrieved September 26, 2018 from Encyclopedia.com: http://www.encyclopedia.com/social-sciences/encyclopedias-almanacs-transcripts-and-maps/censorship-and-regulation-expression