Censorship and the Bill of Rights

Description: The examination of any material in advance of publication, performance, or broadcast to prevent “objectionable” materials from being distributed

Relevant Amendment: First

Significance: Censorship is commonly used by dictators to prevent the spread of ideas hostile to their rule, but modern democracies abhor censorship of nearly all expression except obscenity, where prior restraints are sometimes allowed

Repressive governments such as dictatorships have given censorship, or “prior restraint”the suppression of materials before publication, performance, or broadcasta bad name. It is easy to understand why prior restraint is so important in a dictatorship. If a dictator waits until after publication, the ideas are already widespread, and extreme penalties may not deter critics from voicing their opposition to a regime.

In modern democracies, on the other hand, censorship is generally shunned. In the United States, censorship is allowed by the federal or state governmentsor their agentsonly if such prior restraint can be made compatible with the free expression portions of the First Amendment to the U.S. Constitution. This portion of the amendment reads, “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.”

The First Amendment divides the free expression of ideas into two major categoriesfreedom of speech and the press, and freedom of peaceable assembly. Neither speech nor press is to be restrained, but the presence of the word “peaceably” in connection with assemblies indicates that assemblies can be, and routinely are, subject to prior restraint or censorship. Yet even in the case of assembly, prior restraints are allowed only for a reason such as allowing the “free movement of traffic in public areas.” They must not be used to block the presentation of ideas simply because they are objectionable to the authorities.

Freedom of speech and the press is different from freedom of assembly because of its more passive character, although the U.S. Supreme Court has not always consistently and officially said so. The press, in particular, is regarded as a less dangerous medium for the expression of ideas, since reading is a far more passive activity than speaking to an audience. While it is possible to imagine someone making a speech that would incite a riot, it is very difficult to imagine a crowd reading a newspaper and then rioting. Because speech is frequently given before an assembly, speech falls partially under the First Amendment’s requirement that an assembly must be peaceable to avoid being restrained. This requirement rests on a distinction between ideas and actions. Pure ideas, as expressed in the press or in speeches to peaceable assemblies, are fully protected, but the requirement that an assembly must be peaceable may lead to some restraints on speech, even if there are no prior restraints on the press.

The essence of freedom of speech and the press is that there shall be no prior restraint—no censorship of any material in advance of its distribution. This requirement implies that there may be punishments or restraints applied afterward, a view that is part of a long Anglo-Saxon legal tradition. In an age when censorship laws were focused against “blasphemy,” John Milton argued in his Areopagitica (1644) against such laws:

“Let [Truth] and falsehood grapple; who ever knew truth put to the worse in free and open encounter?” By the eighteenth century, the battle against censorship had been sufficiently successful that the great jurist William Blackstone could write in book four of his Commentaries on the Laws of England: “The liberty of the press is indeed essential to the nature of a free state, but this consists of laying no previous restraints upon publications.”

This tradition carried over into the colonies and led to the adoption of the First Amendment in 1791. Freedom of the press became an issue only a few years after the passage of the Bill of Rights when the Federalists passed the Alien and Sedition Acts in 1798 to punish their political opponents. Despite considerable controversy, the Federalists justified the acts by saying they did not impose a prior restraint. The political outcry was so great that Federalist John Adams lost the 1800 election to Thomas Jefferson, who pardoned all who had been convicted under the acts. Shortly thereafter the Federalists ceased to be a cohesive political party, and the Alien and Sedition Acts were considered such a black mark that no attempt was made to pass anything like them for more than a hundred years.

Throughout the 1800s, the common understanding of the First Amendment was that the federal government could not pass a law that restricted freedom of the press. Since the Bill of Rights was interpreted as applying only to the national government, however, sedition laws existed in various states. After the Fourteenth Amendment was passed following the Civil War, a basis for applying the principles of the Bill of Rights to the states was established, although the U.S. Supreme Court did not immediately accept this interpretation. During World War I, Congress passed two acts, the Sedition Act and the Espionage Act, which produced the first “free speech” cases, but no restraints on the press in advance of publication were enacted.

Prior Restraint Cases

The first U.S. Supreme Court decision on prior restraint was Near v. Minnesota (1931). Near published an anti-Semitic newsletter in Minneapolis, Minnesota, which charged that local government officials were Jewish-influenced and corrupt. Authorities sought to use a state statute to prevent Near from publishing, but the U.S. Supreme Court held that this was an impermissible prior restraint. Also, for the first time, it applied the free press portion of the First Amendment to state governments, utilizing the due process clause of the Fourteenth Amendment “selectively incorporating” part of the Bill of Rights.

The second Supreme Court prior restraint case, New York Times Co. v. United States1971 case also called the “Pentagon papers” caseinvolved hundreds of top-secret government documents that were photocopied by Daniel Ellsberg, knowing he violated the security clearance laws. The documents were printed by The New York Times and other newspapers. The documents disclosed U.S. violations of international law and other matters damaging to the government. The Pentagon papers were stolen government property, but the legal question was whether the newspapers could be restrained in advance from publishing them. The Supreme Court ruled against the government by a 6-3 vote. All nine justices upheld the “no prior restraint” concept, but they disagreed on whether the restraint was justified by the extraordinary issues in this case. While each judge wrote a separate opinion, three major groups can be distinguished. The first groupustices Hugo Black, William O. Douglas, William Brennan, and Thurgood Marshallmaintained that no circumstances justified any prior restraint. Justices Warren Burger, Harry Blackmun, and John Harlan upheld prior restraint but requested more time to examine the documents before deciding whether a permanent restraining order should be issued.

Justices Potter Stewart and Byron White, the swing votes who voted with the first four justices to allow publication of the Pentagon papers, believed that the “no prior restraint” presumption was too strong to overrule in this case but held open the idea mentioned in Near that there might be extreme circumstances in which prior restraint would be justified—such as a newspaper’s attempt in wartime to publish the secret route of a naval convoy through submarine-infested waters. Given the Court’s disregard for the U.S. government’s anger and embarrassment at the publication of the Pentagon papers, it is hard to imagine circumstances that would justify prior restraint. In two hundred years, the Supreme Court has never found a case that justified prior restraint and, since 1931, has never allowed any state or local government to exercise prior restraint, even when the expression of ideas is embarrassing to the government.

Obscenity

Not all ideas are political ideas, and the question of whether censorship can be justified also includes the artistic and scientific arenas. In particular, the Supreme Court has found it necessary to confront obscenity and pornography, particularly when applying the First Amendment to the states, many of which long had restrictive statutes on such subjects.

Despite the clear language of the First Amendment that “Congress shall make no law” abridging freedom of the press or speech, there have long been other rights which the Court has counterbalanced against the right of free expression. For example, there is a right of the adult population to avoid being assaulted in public by the widespread display of materials that they might regard as offensive. There is an even more important need to protect children from pornographic materials which might damage their growth and development as human beings. Prior restraint is allowable for any pornography involving sexual acts by children, as the Court made clear in the 1982 case New York v. Ferber. Sex acts involving children are against the law in every jurisdiction within the United States.

Regarding the publication of pornographic materials depicting adults for the use of other adults in the privacy of their own homes, the Supreme Court has found grounds to provide prior restraint of some materials. It has had great difficulty in doing so in practice, however, principally because of the strong constitutional opposition to prior restraint. Also, although the Supreme Court has consistently held that obscene materials are not protected under the First Amendment, it has had serious problems defining obscenity.

In Roth v. United States (1957), the Supreme Court attempted to define obscenity for the first time in the modern era. The first premise of the Court’s Roth decision was that “all ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the [First Amendment] guarantees.”

Because the First Amendment has been interpreted to protect virtually all ideas against prior restraint except obscene ones, the definition of obscenity was crucial, but it proved very difficult. Earl Warren, U.S. Chief Justice from 1953 to 1969, once said that defining obscenity presented the Court with its “most difficult” area of adjudication. In Roth, the Court said that to be obscene, the expression had to be “utterly without redeeming social importance.” Obscenity was fully defined by the following phrase: “Whether to the average person applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests.”

“Prurient” was defined as “material having a tendency to excite lustful thoughts.” The Court asserted that “sex and obscenity are not synonymous,” however, because the Court could not equate sex and obscenity without legitimizing the banning of a wide range of artistic, medical, and scientific materials. While there is a certain logic to the Supreme Court’s decision in the Roth case, the decision itself involves several words that are not easy to define. Obscenity is difficult to define, but so are the words “lustful” and “prurient.” Many questions quickly became apparent. How can one decide that something is “utterly without redeeming social importance”? What “community standards” should be followed? Is the community a particular town, a particular state, or the nation as a whole? Moreover, exactly who is an “average person”? Lower courts quickly found that reaching judicial determinations on whether particular works fit within a definition that includes so many vague words was extremely daunting.

Ideally, the Supreme Court should provide clear definitions that can serve as workable guidelines for legislators, courts, and attorneys all across the nation. When the Court does not do so, it invites a flood of litigation, because only the Court can determine what its vague guidelines mean. Since it did not do so in Roth, it found a huge number of obscenity cases being presented to it. Furthermore, the Court’s agreement on the Roth definition was short-lived.

Per Curiam Rulings

By 1967, several distinct positions were evident. Justices Black and Douglas maintained the principle of “no prior restraint” is so strong that neither federal, state, nor local governments have any power to regulate any sexually oriented matter on the ground of obscenity. Justice Harlan took the opposing view that the federal government could control the distribution of “hard-core” pornography by using its enumerated powers and that states were entitled to even greater freedom to ban any materials that state courts had reasonably found to treat sex in a fundamentally offensive manner. A variety of other views were held by the other justices.

From 1967 until 1973, the Court followed the practiceestablished in Redrup v. New York (1967)of issuing per curiam reversals of convictions for the dissemination of obscene materials if at least five members of the Court, applying their separate tests, deemed them not to be obscene. Per curiam decisions are generally unsatisfactory in that they do not include any accompanying opinions as guidance for lower courts. As with vague guidelines, they invite endless litigation. At one point in the struggle to define hard-core pornography, Justice Stewartwith evident frustrationsaid of obscenity, “I can’t define it, but I know it when I see it.” While this statement became the punch line of many jokes, it was essentially an accurate description of the Court’s approach from 1967 to 1973. The Court was deciding obscenity cases on an individual and retroactive basis, which was unsatisfactory for lower courts, prosecuting attorneys, police officers, defense attorneys, the producers of the materials, and the public.

Sixteen years after Roth, a new definition of obscenity was offered in the case Miller v. California (1973) and the companion case Paris Adult Theatre v. Slaton. Since five justices voted for the definition, it became the new definitive holdingor leading caseon the subject, though it proved little better than its predecessor.

The new definition made two major changes. First, it specifically rejected the standard “utterly without redeeming social value”which had been established in Memoirs v. Massachusetts (1966)in favor of a broader standard. The obscenity label can be applied only to a work which, “taken as a whole, appeals to the prurient interest,” which depicts or describes sexual conduct in a “patently offensive way,” and which, “taken as a whole, lacks serious literary, artistic, political, or scientific value.” Second, the Court rejected the notion of national community standards in favor of local community standards. The Court explained that the United States “is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists.”

Promptly some communities began defining obscenity very restrictively. A Georgia community banned the 1971 film Carnal Knowledge. The case reached the Supreme Court, and once againin Jenkins v. Georgia (1974)it was faced with deciding on a case-by-case basis. The Court held that the film could not be found to appeal to the prurient interest or be found patently offensive under Georgia community standards, setting a guideline for the limits of allowable differences in local community standards.

Censorship and prior restraint are so alien to the American system that the Supreme Court has found it virtually impossible to apply censorship in any area. On the one hand, the Court acknowledges that adults have a right to be protected from unwanted public obscenity and that children must be protected. On the other, the Court is uncomfortable with any form of prior restraint. It may be that there is no way to write a clear obscenity law, but the Court’s failure to provide clear standards has led to considerable litigation: There have been only two Supreme Court cases concerning prior restraint of political ideas, but there have been hundreds of obscenity cases.

The Broadcast Media

The issue of obscenity becomes even more complicated when one addresses the issue of electronic broadcasting. While the freedom to express political ideas is well protected, this protection is not as great for the broadcast media as it is for print media. The reason is that radio and television must use broadcast or microwave frequencies which are considered public property. Therefore the owners of radio and television stations must receive a license from the Federal Communications Commission (FCC). The licensing requirement can be viewed as a form of prior restraint. The government does not seek to control news broadcasts, however, generally granting them the same freedom as the print mediasimilarly, there is no government control of individual broadcasts of artistic, scientific, or medical materials.

Yet broadcasters, knowing that their licenses (which may be extremely lucrative) can be revoked or denied renewal, engage in considerable self-censorship, which also occurs in the film industry. Generally, self-censorship has been sufficiently effective that only a few cases of license nonrenewal exist. Some conservative commentators and politicians have argued that this self-censorship does not go far enough. A fairly sizeable minority of citizens are concerned by what they describe as a climate of permissiveness concerning sex and violence, particularly on television. In mid-1995, for example, Congress heatedly debated whether to require manufacturers of television sets to include a “V-chip” that would allow parents to block their children’s viewing of programs with violent or sexual content.

Public Live Presentations

Public live presentations fall into the category of assemblies and are therefore subject to the restriction that they must be “peaceable.” Since the question of riots or violent behavior is not often at stake, an issue more often debated is the extent to which governmentsprimarily local but occasionally statecan restrain public live presentations of a sexual nature. Public displays in areas of public traffic, where such presentations might assault the sensibilities of some adults or be viewed by children, are widely prohibited by indecent exposure laws.

The problem is more complex for public live presentations in private businesses or in publicly or privately owned and operated theaters. Those who favor censorship of sexually explicit materials have been most successful in restricting sexually explicit presentations in establishments that sell alcoholic beverages or those in which activities that come close to prostitution can be documented. For other privately owned establishments open exclusively to adults, local governments have generally found it difficult to write statutes or ordinances that are specific enough to avoid being declared unconstitutionally vague without at the same time being declared unconstitutional for restraining freedom of expression. Even publicly owned and operated theaters have been forced to permit their use by productions that include nudity. Officials in Chattanooga, Tennessee, discovered this in the 1970s when they attempted to bar the presentation of the musical Hair from being performed in a publicly owned and operated theaterSoutheastern Promotions, Ltd. v. Conrad (1975).

Free Speech in the Age of Social Media

In the 2020s, the Presidential elections of 2016 and 2020 brought contemporary issues of First Amendment rights to the forefront of American political commentary. This stemmed from advances in technology which made the publication of information possible to everyone, and not simply confined to traditional media outlets. Social media, in particular, offered the means for communication and dissemination of information that could reach and influence mass audiences. Many people used these new capabilities to promote messages that were not based on factual content, were misleading, and where demonstrable harm was inflicted. This type of information soon became termed “fake news.” Perhaps the greatest example of this was QAnona global mass movement centered around conspiracy theories. One of these theories prompted the 2016 “Pizzagate” incident in which a QAnon adherent used illegal, armed force in a vigilante attempt to disrupt a non-existent child trafficking ring. 

In 2021 incumbent President Donald J. Trump used social media through his Twitter accountnow called Xto promote disproven allegations that the 2020 presidential election had been fraudulent. On January 6, 2021, a violent mob of supportersincited by this messagingattacked the U.S. Capitol Building. Inside, U.S. lawmakers were disrupted from completing a largely ceremonial event to ratify the results of the 2020 elections placing Joe Biden as President. Because of the destructive nature of QAnon, January 6, and similar events, many social media companies enacted policies to prevent their privately owned sites from being used as platforms by actors disseminating false information. These policies were, in many cases, enacted by companies such as Facebook and Twitter (X) because it appeared that prevailing public, and potentially congressional opinion, favored holding these companies liable for content posted on their platforms. Conversely, actions by social media companies to police false and inflammatory speech produced an outcry from proponents who insisted their First Amendment rights to free speech were being violated. This situation revealed an environment that suggested many people lacked a fundamental misunderstanding of what type of speech the First Amendment actually protected. 

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