Censorship and Ethics

At Issue

Since classical times, proponents of censorship have invoked religion or government to promote the repression of material that purportedly threatened public morals or controlling institutions. In this context, artistic expression has been targeted as potentially harmful by ancient philosophers, religious organizations, special-interest groups, and governmental bodies. Throughout the ages, the basic arguments for and against freedom of expression have remained remarkably the same.

History

Plato (428-348 b.c.e.) was among the earliest proponents of censorship of the arts. His Laws (360 b.c.e.) argued for strict censorship of the literary and visual arts, particularly poetic metaphor, which he claimed interfered with achieving pure, conceptual truth.

Early Christianity took a similar position concerning mythology and art. The Roman Catholic church eventually utilized censorship to control philosophical, artistic, and religious truth generally. In 1521, Holy Roman Emperor Charles V issued the Edict of Worms, which prohibited the printing, dissemination, or reading of Martin Luther’s work. The Index librorum prohibitorum (1564), which was published by the Vatican, condemned specific books. The Index included such works as Galileo Galilei’s Dialogue Concerning the Two Chief World Systems (1632); Galileo was subsequently prosecuted for heresy during the Inquisition.

The scope of governmental censorship in Europe changed with the separation of powers between the church and state. When church courts were abolished and religious beliefs and morés were no longer subject to government control, censorship laws focused on political speech and writing. Works criticizing government practices ran the risk of prosecution for seditious libel in England; in France, Napoleon censored newspapers, publications, theatrical productions, and even private correspondence at will.

Politically motivated censorship became common in countries with totalitarian governments, from communism to dictatorships. The Communist Manifesto (1848) of Karl Marx and Friedrich Engels was banned throughout Europe, yet subsequently communist leaders from Lenin to Mao Zedong to Fidel Castro routinely practiced political censorship. In the Soviet Union, political censorship targeted the arts when it imposed the doctrine of “socialist realism” in 1932. The following year in Germany, Adolf Hitler organized nationwide book burnings in the name of the National Socialist government. Soviet-bloc writers, artists, and scientists have been imprisoned, exiled, and have had their work confiscated, when it has been deemed ideologically impure. Aleksandr Solzhenitsyn was arrested in 1945 for a pejorative remark about Joseph Stalin, spent eleven years in prison, and was finally exiled in 1974. In Muslim fundamentalist countries, religious censorship is the norm. For example, the publication of Salman Rushdie’s The Satanic Verses (1989) prompted Iran’s Ayatollah Khomeini to pronounce a fatwa, calling for Rushdie’s death and forcing the author into seclusion. Public political debate was given constitutional protection in some jurisdictions. Article 5 of the Basic Law of West Germany (1949) and Article 10 of the European Convention on Human Rights and Fundamental Freedoms (1953) specifically provided for free speech rights. The First Amendment to the U.S. Constitution, ratified in 1791, expressly prohibited Congress from making any law that abridged freedom of speech, press, religion, assembly, or the right to petition the government for redress of grievances. This right to free speech was not, however, absolute. The First Amendment has generated an enormous amount of litigation over its interpretation, particularly when it has collided with other rights in American society.

The degree to which the principle of free speech has been extended to the arts has been a matter of case law in all jurisdictions in which censorship has been scrutinized. Most troublesome for the courts has been the issue of the protection of allegedly obscene or pornographic material.

When free expression has come into conflict with potentially overriding public policy concerns, the courts have engaged in complex legal reasoning, often guided by philosophical and political arguments, in order to determine which interests dominate. Despite the evolution of cultural values, vestiges of several arguments remain common to most court deliberations of the free speech principle.

The argument from truth (also referred to as the libertarian argument) has been associated with the works of John Stuart Mill, but it was also articulated by John Milton two hundred years earlier. It emphasizes the importance of open discussion to the discovery of truth as a fundamental good and invaluable to the development of society. To some extent, this philosophy has been utilized by the U.S. Supreme Court, first in Justice Oliver Wendell Holmes’s now-famous dissent, in U.S. v. Abrams (1919), although its application is limited to speech with political, moral, aesthetic, or social content.

The argument from democracy views freedom of speech as a necessary component of any democratic society, in which public discussion is a political duty. Alexander Meiklejohn is one of its leading proponents, and similar theories are found in the works of Immanuel Kant, Baruch Spinoza, and David Hume. Meiklejohn considered the First Amendment a protection of the right of all citizens to discuss political issues and participate in government. Similarly, the German Constitutional Court and the European Court have recognized the importance of public debate on political questions. The argument from democracy has had little success in cases involving nonpolitical speech.

Unlike the previous two arguments, the argument from individuality is rights-based rather than consequentialist, recognizing the interest of the speaker, rather than society, as being paramount. It asserts that there is an individual right to freedom of speech, even though its exercise may conflict with the welfare of society. A free expression rationale based solely on individual fulfillment has raised philosophical and legal quandaries when it has come into conflict with other equally important liberties.

The argument from the paradox justifies censorship in cases in which freedom of speech is exercised by those who would use it to eliminate the free speech principle itself. For example, in England, it was used to set regulations restricting the activities of the National Front. In the United States, those seeking to prohibit the marching of the Nazi party in Skokie, Illinois, a predominantly Jewish suburb of Chicago, relied on this argument without success. The European Convention on Human Rights employed it as a fundamental consideration in Article 10, and it has been cited as authority for outlawing the German Communist Party.

The utilitarian argument suggests that the speech in question should be weighed for the balance of pleasure and pain. Its value is limited in assessing the extent of free speech protection contemplated by the U.S. Constitution, or other legislation with similar provisions.

The contractualist argument is a rights-based conception that excludes certain rights from state power, particularly the right to conscience. This argument asserts that the government violates this right when it superimposes its own value judgment on the speech at issue.

Censorship and the Arts in Europe

Artistic freedom is protected in Europe in all countries adhering to the European Convention of Human Rights and Fundamental Freedoms. Article 10 guarantees everyone the right to freedom of expression. Any prior restraints on publication must be justified as necessary in a democratic society in order to constitute permissible restraints on the free expression principle.

West Germany’s Basic Law, Article 5, provides for freedom of expression rights, specifically designating art, science, research, and teaching. This freedom of expression is, however, subject to a fundamental right to dignity and is limited by the provisions of the general laws. As a result, the German Constitutional Court has balanced the interests of free expression and other specific laws in a manner similar to that used by the U.S. Supreme Court.

Great Britain does not constitutionally protect speech; instead, it relies upon common law and administrative agencies to resolve issues involving free expression. Courts often articulate a common law principle of freedom of speech to limit the scope of other rules that impinge on this freedom. Prior restraint by licensing of the press was abolished in 1694, but films remain subject to scrutiny under the Video Recordings Act of 1985.

In 1979, a special committee, popularly known as “The Williams Committee,” presented to the government its report containing studies and policies on obscenity and film censorship. Its findings, which recommended the restriction of material that is offensive to reasonable people, are frequently cited by the courts as well as by legal scholars.

Obscenity is prosecuted under the Obscene Publications Act of 1959, provided that the work is not justified as being for the public good or in the interest of science, literature, art, learning, or any other area of general concern. This exception to the obscenity law bears a strong resemblance to the balancing of interests tests utilized by American Supreme Court justices.

Censorship and the Arts in the United States

The constitutional guarantee of free speech was articulated in one simple phrase, yet its interpretation has been a matter of intricate, strenuous legal debate since its inception. When state laws are challenged as unconstitutional restraints on free speech, the ultimate determination of their legality rests with the U.S. Supreme Court. This court has established, on a case-by-case basis, both the scope and limitations of the free speech doctrine as well as its applicability to the states through the Fourteenth Amendment.

It has been argued that the drafters of the First Amendment contemplated only the protection of political speech. The path that the Supreme Court took in extending the free speech principle to the arts was long, arduous, and occasionally winding. Most instances of repression of the literary and visual arts have occurred under the guise of preservation of moral standards, pertaining to blasphemy and obscenity. Anti-vice movements and groups have operated on the basis of the premise that society needed protection from exposure to material that those movements and groups considered threatening to public morals. Although not necessarily acting under the color of state law, organizations such as the Legion of Decency, the New England Watch and Ward Society, and various independent groups constituting what became known as the “Moral Majority” have pressured municipalities and businesses into tacitly censoring material deemed offensive.

The Supreme Court began to address the extension of First Amendment protection beyond political speech in the 1940’s. Blasphemy prosecutions are all but obsolete in the United States, but it was not until 1952 that the Supreme Court ruled that a film (The Miracle) could not be censored for sacrilegious content. The Court also ruled that motion pictures were included within the free speech and press guaranty of the First and Fourteenth Amendments; the importance of films as organs of public opinion was not lessened by the fact that they were designed to entertain as well as inform.

Literary and visual arts in the form of erotica have been afforded the least First Amendment protection. Obscenity has always been criminally sanctioned and subjected to prior restraints in the United States, based on numerous policy considerations: that it corrupts the individual, that it leads to sex-related crime and illegal sexual activity, that it serves no socially redeeming purpose, and that it is lacking in any viable element of the search for truth.

Until 1934, American courts relied on the English common law “Hicklin Rule” when determining whether a given work was to be considered illegally obscene. Regina v. Hicklin (1868) defined the test of obscenity as whether the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. Thus, a publication was judged obscene if any isolated passage within it could corrupt the most susceptible person.

The “Hicklin Rule” was replaced by the “Ulysses standard,” first articulated in United States v. One Book Entitled Ulysses (1934), which required that the entire work, rather than an isolated passage, be evaluated for its libidinous effect. The Supreme Court continued to proclaim in Chaplinsky v. New Hampshire (1942) that there were certain well-defined and narrowly limited classes of speech that are of such slight social value as to be clearly outweighed by the social interest in order and morality. Such classes of speech included the lewd and obscene, the profane, the libelous, and insulting words that by their utterance inflict injury.

The first landmark case setting forth a standard for determining whether a work was to be considered obscene, and therefore undeserving of First Amendment protection, was Roth v. United States (1957). The Court, in upholding convictions for violations of California and federal obscenity statutes, found that the statutes did not violate constitutional standards. The Court stated that the test for obscenity was whether the average person, applying contemporary community standards, would find that the dominant theme of the material, taken as a whole, appealed to prurient interest.

Three years later, the Supreme Court found that a Chicago city ordinance requiring submission of film for examination as a prerequisite to obtaining a permit for public exhibition was not void as a prior restraint under the First Amendment. In Times Film Corp. v. City of Chicago (1961), the Court indicated that there is no complete and absolute freedom to exhibit, even once, any and every kind of motion picture. The Court limited the scope of the First Amendment, based on the overriding societal interest in preserving the decency of the community, assuming that the ordinance was directed at obscenity.

In applying the “Roth standard” in Jacobellis v. Ohio (1964), the Court found the motion picture Les Amants not to be obscene and overturned the prosecution of a theater manager who had exhibited the film. The court stated that obscenity is excluded from constitutional protection only because it is utterly without redeeming social importance, and that the portrayal of sex in art, literature, and scientific works is not in itself sufficient reason to deny material the constitutional protection of freedom of speech and press.

In 1970, a Presidential commission appointed to study the statistical correlation, if any, between crime and pornography published its conclusions, finding that there was no direct correlation. There was, however, considerable dissension among the members of the committee, who sought to lodge their conclusions separately.

In 1973, Miller v. California was decided, again refining an earlier standard set in Memoirs v. Massachusetts (1966). The test for obscenity established three standards that must be independently met in order for a work to be removed from the umbrella of First Amendment protection: whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Consequently, a work that had political value was protected, regardless of its prurient appeal and offensive depiction of sexual activities. Sexually explicit art was immune if it demonstrated serious artistic value. Subsequent cases have made it clear that works found by a reasonable person to have serious artistic value are protected from censorship, regardless of whether the government or a majority approve of the ideas these works represent.

A companion case to Miller, Paris Adult Theater I et al. v. Slaton, held that a state could prohibit hard-core pornographic films. Although there were extensive dissenting opinions, the majority categorically disapproved the theory that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults; they stated further that the states have a legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation. The Court concluded that a legislature could quite reasonably determine that a connection between antisocial behavior and obscene material does or might exist.

In October of 1989, the “Miller standard” of obscenity became controversial outside the courts. A censorious bill proposed by Senator Jesse Helms, which sought to restrict and punish the National Endowment for the Arts (NEA) for allegedly funding “obscene” art, was defeated. Congressional critics had assailed the NEA for funding two controversial projects: a photography exhibit by Robert Mapplethorpe that included homoerotic images and an exhibit by Andres Serrano entitled “Piss Christ,” which was criticized as sacrilegious. Congress passed instead a compromise bill that removed most penalties against specific artists and institutions but required that the NEA observe legal bans on obscenity by employing standards reminiscent of the language in Miller. Further, grant recipients were required to sign a nonobscenity oath.

Subsequently, many organizations and artists refused to sign the oath, and several initiated lawsuits against the NEA. Bella Lewitzky Dance Foundation v. Frohnmayer et al. (1991) held that the nonobscenity oath requirement was unconstitutional. Artists and legal scholars alike voiced strenuous objections to the Miller-style decency standards of the legislation, particularly because the determination of obscenity was made by NEA panelists and administrators rather than by peer review, and because the standards ignored the nature and purpose of postmodern art, which rejects the previous definition that art must be “serious.”

In June, 1992, a United States District Court heard the suit of Karen Finley et al. v. National Endowment for the Arts and John Frohnmayer, in which four performance artists whose grant applications were denied by the NEA brought suit alleging improper denial of the grant applications. The governing statute as amended in 1990 provided that artistic merit was to be judged taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public. The Court found that the decency provision violated the Fifth Amendment’s due process requirement. It further held that the public funding of art is entitled to First Amendment protection and that the decency clause on its face violates the First Amendment on the basis of overbreadth.

The influence of ethical arguments throughout the constitutional case law concerning censorship and the arts is unmistakable. Throughout the twentieth and twenty-first centuries, the Supreme Court has labored to give contemporary meaning to the terms of the First Amendment, affording broad freedom of expression to the arts while balancing various community values and shifting interests in a pluralistic society. The issue of online censorship also came to light during this period. In 1997, the Supreme Court ruled against the Communications Decency Act in Reno v. American Civil Liberties Union, which granted First Amendment protection to content on the internet and was considered a major victory for free speech rights online. Even so, many states have created censorship laws since 1997 that serve to threaten free speech online.

Bibliography

Barendt, Eric. Freedom of Speech. Oxford: Clarendon Press, 1985.

Gerber, Albert B. Sex, Pornography, and Justice. New York: Lyle Stuart, 1965.

Hurwitz, Leon. Historical Dictionary of Censorship in the United States. Westport, Conn.: Greenwood Press, 1985.

"Online Censorship in the States." ACLU, www.aclu.org/other/online-censorship-states. Accessed 10 Aug. 2021.

Richards, David A. J. Toleration and the Constitution. New York: Oxford University Press, 1986.

Schauer, Frederick. Free Speech: A Philosophical Enquiry. Cambridge, England: Cambridge University Press, 1982.