Censorship of Violence

Definition: Physical force used to kill or harm human beings, animals, or other entities

Significance: Concerns over the effects of graphic portrayals of assault, murder, rape, and other violent behaviors in the arts, literature, drama, and film have prompted calls for banning or regulating its depiction

From comic books, paperback novels, and films such as The Texas Chainsaw Massacre and Natural Born Killers to advanced video games and online media, crime and violent behavior have frequently been depicted in explicit detail. The increasing use of violence as a staple of entertainment has caused many parents, media watchdog groups, and social scientists to suggest links between such portrayals and antisocial behavior. In turn, these concerns have prompted calls for local, state, and federal laws to ban or regulate depictions of violence. However, although laws limiting portrayals of sexually explicit behaviors have generally been upheld in the United States, laws attempting to prohibit or even regulate violently explicit speech have not.

Role of the Courts in the United States

The U.S. Supreme Court has consistently held that “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content”—the phrase used in Police Department of Chicago v. Mosley (1972). In its 1948 Winters v. New York decision, the Court invalidated a law that prohibited the distribution to minors of any publication “principally made up of . . . accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime.” Although the justices saw “nothing of any possible value to society in these magazines,” they held that the magazines were “as much entitled to the protection of free speech as the best of literature.”

Using similar reasoning, a federal appeals court invalidated a Missouri law that prohibited the sale or lease of violent videocassettes to minors in Video Software Dealers Association v. Webster in 1992. Likewise, a federal circuit court has stated that “violence on television . . . is protected as speech, however insidious. Any other answer leaves government in control of . . . the institutions of culture, the great censor and director of which thoughts are good for us” (American Booksellers Association v. Hudnut, 1985).

As a matter of constitutional law, distinctions between “gratuitous” violence on the one hand and “legitimate” depictions of violence on the other, are subjective at best. Civil libertarians doubt that neutral First Amendment principles are useful in distinguishing between evening news broadcasts of events such as the police beating of Rodney King and television film reenactments of the same events. As one justice said in Winters v. New York: “What is one man’s amusement, teaches another’s doctrine.” In Cohen v. California (1971) the Supreme Court pointed out that “it is precisely because government officials cannot make principled distinctions in [the arena of expression] that the Constitution leaves matters of taste and style so largely to the individual.”

Proposals to restrict depictions of violence have raised serious vagueness problems. Statutes must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries, or administrative agencies, for resolution on an ad-hoc and subjective basis. Such laws bring with them the dangers of arbitrary and discriminatory application.

Although supporters of regulating depictions of violence have suggested that all violence is gratuitous, some screen violence has been seen as generating positive consequences, such as that in Schindler’s List, The Deer Hunter, and Apocalypse Now. Each of these films used violence to teach socially valuable historical lessons. Similarly, Menace II Society, a film about a Los Angeles ghetto, confronts viewers with real-life problems in contemporary urban society. Civil libertarians have argued that such depictions of violence are socially beneficial and should be encouraged, not banned. They also assert that violent speech provides a safety valve for emotions that might otherwise explode as violent conduct. The Supreme Court has acknowledged the cathartic effect of violent expression: Without outlets to blow off steam through mere words or pictures “natural human reactions of outrage and protest are frustrated and may manifest themselves in some form of vengeful ‘self-help’”(Richmond Newspapers, Inc. v. Virginia, 1980).

Defining violent expression subject to proposed regulations raises other difficult constitutional problems. The definition of “violence” must give broadcasters fair notice regarding what speech is subject to regulation. The Supreme Court struck down an ordinance that classified films as “not suitable for young persons” if they portrayed “brutality, criminal violence or depravity in such a manner as to be, in the judgment of the Board, likely to incite or encourage crime or delinquency on the part of young persons . . . [and thereby] create the impression on young persons that such conduct is profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted” (Interstate Circuit City of Dallas, 1968).

The Overbreadth Doctrine

Regulations aimed at restricting violence on television or in films may also conflict with First Amendment overbreadth rules. Under this doctrine, laws that affect not only the speech that may legitimately be restricted but a substantial amount of protected speech as well are over-inclusive and thus unconstitutional (City of Houston v. Hill, 1987). If no constitutionally recognizable differences can be articulated among news programs, documentaries, dramatizations, sports, and pure entertainment programs, any regulation of violence would embrace many important forms of protected speech that could not legitimately be restricted.

The Supreme Court has held that First Amendment protections for television broadcasting are not as extensive as those for the print media. Nevertheless, “broadcasters are engaged in a vital and independent form of communicative activity. As a result, the First Amendment must inform and give shape to the manner in which Congress exercises its regulatory power in this area” (Federal Communications Commission v. League of Women Voters, 1980). Moreover, constitutionally valid speech restrictions, even in the broadcast media, may not be based on the viewpoint or subject matter of the expression regulated.

This approach applies to cable television as well. The Supreme Court has reaffirmed that “cable television provides to its subscribers news, information, and entertainment. It is engaged in ‘speech’ under the First Amendment, and is, in much of its operation, part of the ‘press’”(Leathers v. Medlock, 1991). Cable television is therefore not subject to content regulation (Home Box Office, Inc. v. Federal Communications Commission, 1977).

Protecting Children

Supporters of proposed legislation restricting portrayals of violence often cite the need to protect children. But this legitimate and compelling governmental interest has been found insufficient to justify content regulations. A federal appeals court held, in Pratt v. Independent School District No. 831 (1982), that a Minnesota public school district had acted unconstitutionally when it removed from the curriculum a film version of Shirley Jackson’s short story “The Lottery.” This story was about a town whose inhabitants stone one resident to death each year in an unquestioning adherence to tradition. Teachers in the district had used the film in their classes for five years, but the film adaptation was abandoned after parents and other citizens complained about the story’s violence and its negative impact on the students’ religious and family values. Finding that the school board had failed to specify why the film was too violent, the appeals court decided that the board had “used its official power to perform an act clearly indicating that the ideas contained in the film are unacceptable and should not be discussed or considered” in violation of the First Amendment.

The Supreme Court has, however, also found that in some instances government may “adopt more stringent controls on communicative materials available to youths than on those available to adults” (Erznoznik v. City of Jacksonville, 1975). Nonetheless, “speech . . . cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. In most circumstances, the values protected by the First Amendment are no less applicable when government seeks to control the flow of information to minors.” Whatever restrictions can be adopted under a child-protection theory, the Court said, cannot be permitted to reduce the adult population to viewing only what is fit for children (Butler v. Michigan, 1957).

Parental Choice

Television violence legislation must also surmount another legal hurdle: that the means chosen to regulate it be a “constitutionally acceptable less restrictive means” compared to others available “to achieve the Government’s interest in protecting minors” (Sable Communications of California, Inc. v. Federal Communications Commission, 1989). Any regulatory legislation must employ “narrowly drawn regulations designed to serve those interests without necessarily interfering with First Amendment freedoms.”

Parents who wish to protect their children from violent or other objectionable messages can use technological devices that do not endanger free speech. During the mid-1990s cable operators were required by law to provide lockboxes to customers on request. Nearly two dozen models of television sets were available with built-in channel-blocking ability permitting parents to limit their children’s viewing by blocking certain channels when the parents are not home. Some products permitted parents to block specific television programs or time periods. Lockboxes and similar devices place “the responsibility for making such choices . . . where our society has traditionally placed it—on the shoulders of the parent” (Fabulous Associates, Inc. v. Pennsylvania Public Utility Commission, 1990).

Social Science Research

Social scientists disagree on whether steady diets of violent television and films, especially for young people, contribute to antisocial or even criminal behavior. Most studies show correlations rather than causal relationship. Indeed, it has been suggested that people who are prone to violent behavior may be attracted to violent films and television, rather than the other way around. The most scientifically prepared studies indicate that exposure to fictional violence increases the potential for violent behavior by 10 percent in otherwise normally adjusted people. Both proponents and opponents of censoring violent films and television can use such research to further their cause. Proponents of censorship might argue that a contributing factor of 10 percent is highly significant, thereby justifying further government control, while opponents urge that because a range of other factors—including family background, upbringing, education, and religious training—are, collectively, ten times more important, there is no valid or constitutional basis justifying prohibition of such fictional portrayals.

Pornography Victims Compensation Act

A coalition of conservative politicians and procensorship feminists have joined together to promote legislation which assumes a link between violent pornography and sexual assaults. The Pornography Victims Compensation Act of the mid-1980s was designed to create a new civil cause of action allowing victims of rape or sexual assault who can prove that their assailants were motivated—at least in part—by exposure to pornography to sue the producers or publishers of the videos, books, or magazines involved for money damages and attorney fees. Civil libertarians, anticensorship feminists, publishing and library associations, and many writers and authors have strenuously opposed such legislation. Opponents have urged that it would have a chilling effect on a whole range of expression, as there is no way of knowing what films, books, photographs, or other images may “motivate” criminal behavior and would shift responsibility for serious sexual assaults from the perpetrators to film producers and book publishers, encouraging a “porn-made-me-do-it” defense.

The depiction of crimes and violence is as old as Greek mythology and the Bible. Modern fears and anxieties over safety and order have prompted people to look for causes—or scapegoats. In such times, threats to security breed threats of censorship.

Bibliography

Bergstein, David. "When Should Violent Imagery Be Censored?" HuffPost, 11 Sept. 2014, www.huffingtonpost.com/david-bergstein/when-should-violent-imagery-be-censored‗b‗5800648.html. Accessed 30 Apr. 2018.

Cleary, Edward J. Beyond the Burning Cross: The First Amendment and the Landmark R.A.V. Case. Random House, 1994.

Itzin, Catherine, editor. Pornography: Women, Violence, and Civil Liberties. Oxford UP, 1992.

MacKinnon, Catharine A. Only Words. Harvard UP, 1993.

Smolla, Rodney A. Free Speech in an Open Society. Alfred A. Knopf, 1992.

Thierer, Adam D. "Censoring Violence in Media." Cato Institute, 10 Aug. 2004, www.cato.org/publications/techknowledge/censoring-violence-media. Accessed 30 Apr. 2018.