Censorship and the U.S. Congress

Founded: 1789

Type of organization: U.S. national legislature, consisting of the House of Representatives and the Senate

Significance: Except in times of national emergency, Congress has steered away from censorship legislation; a notable aberration was its passage of the Sedition Act of 1798

Seeking to prevent the rise of a power hungry national legislature, the Framers of the Bill of Rights included the phrase “Congress shall make no law . . . abridging the freedom of speech, or of the press” in the First Amendment. Thus, free and open discussion of governmental policies and unrestricted media debate of issues concerning the American people seem guaranteed in the Bill of Rights. Despite this extensive protection of the citizenry from congressional encroachment upon civil liberties, however, the U.S. Supreme Court has ruled, as late as 1988, that Congress may censor speech and the media, provided that such action “is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Therefore, idealistic guarantees are diluted by the fine print of pragmatic politics and “compelling state interest.”

Alien and Sedition Acts

Historically, Congress has been cautious about encroaching upon the freedoms outlined in the First Amendment. In the summer of 1798, however, a Federalist-dominated Congress passed a series of four measures, usually called collectively the Alien and Sedition Acts, which clearly were designed to restrict the participation of the main rival political faction, Thomas Jefferson’s Democratic-Republican Party. There were at the time about twenty-five thousand aliens in the United States. Many were refugees from oppressive authorities in their homelands, and they tended to align themselves with the Jeffersonians, who believed in as little government as possible. Others were propertyless and not acceptable to the Federalists, a political party of the “prosperous and well born.”

One provision of the legislation was an extension of the naturalization period for immigrants from five to fourteen years. Another clause empowered President John Adams, a Federalist, to deport aliens judged by him to be subversive. Obviously, the alien provision was aimed at the newly arrived supporters of Vice President Jefferson.

The Sedition Act was an attempt to muzzle the Democratic-Republican media. The law declared that “if any person shall write, print, utter, or publish . . . any false, scandalous and malicious writing . . . against the government of the United States, or either house of the Congress . . . or the President . . . to excite against them the hatred of the good people of the United States . . . ” that such a person “shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.”

By passing the Alien and Sedition Acts, Congress undermined the basic liberties provided in the First Amendment. Uncensored speech and an unshackled press had made the nation a beacon of freedom to the rest of the world. George Washington, one year away from death, rose from his bed to warn against the threats posed by the Alien and Sedition Acts. Unfortunately, the Federalists, who dominated both houses of Congress, failed to heed Washington’s warning.

Fisticuffs erupted on the floor of Congress. U.S. Republican Matthew Lyon, an Irish immigrant and follower of Jefferson, had served as a colonel in the “Green Mountain Boys” during the American Revolution. One afternoon in the House of Representatives, Roger Griswold, a Federalist supporter of the Alien and Sedition Acts, criticized Lyon’s war record. Lyon spat in Griswold’s eye; the next day, the two legislators fought each other with canes and fire tongs. The Federalist-controlled Congress tried to expel Lyon from the House but failed to garner the required two-thirds vote.

In an attempt to settle the score, Lyon was then charged with violating the Sedition Act. The Democratic-Republican had published a letter to an editor accusing President Adams of “ridiculous pomp, foolish adulation, and selfish adulation.” Tried and convicted before a Federalist judge, Lyon became a martyr for those who championed uncensored speech and media. Reelected to Congress, Lyon led a twelve-mile-long caravan to the capital, which at that time was in Philadelphia.

As the 1800 presidential election approached, the argument became a clear one: Did the Constitution or the Alien and Sedition Acts take priority? The election became a referendum on censorship and Jefferson and his congressional supporters were swept into office. Seeking to ease fears, Jefferson calmly proclaimed, “We are all Federalists. We are all Republicans. We are all Americans.” As Jefferson assumed office, the acts expired and the new president promptly pardoned all those who had been convicted under the acts and he canceled remaining trials.

These congressional measures, which struck so brutally at liberty, were the last such acts until the country entered World War I. The Espionage Act of 1917 mandated heavy fines and imprisonment for those individuals considered to be impeding the war effort. A section of this law empowered the postmaster general to censor mail such as German-language newspapers. The American Socialist and the Industrial Workers of the World’s Solidarity could not be mailed. Forty-four papers lost their mailing privileges under the Espionage Act, and thirty others had to agree to remain silent on the war.

Congress passed two other laws to restrict free expression. The Trading with the Enemy Act of 1917 censored international communications. The following year Congress approved the Sedition Act, which made it a crime to write or publish “any disloyal, profane, scurrilous or abusive language about the form of government of the United States or the Constitution.” Additionally, Congress forbade language that brought “into contempt, scorn, contumely or disrepute” the nation’s governmental institutions. Both measures remained on the books for use in World War II by the Office of Censorship.

Congress’ wartime actions were generally supported by the American people, as were similar World War II policies. Mainstream publications avoided scrutiny as the government targeted socialist and German media outlets. When the Red Scare of 1919 erupted, two thousand persons were prosecuted under the two wartime laws. Evangelist Billy Sunday summed up the widespread feeling: “If I had my way with these ornery wild-eyed Socialists and IWW’s, I would stand them up before a firing squad.”

Regulating the Broadcast Media

By the 1920s, the public had become mesmerized by the new medium of radio. Congress became more regulatory toward broadcast media than it had been with the fringe publications of the World War I era. Congress has used two major reasons to justify tighter federal regulation of broadcast media than of newspapers. First, space on the radio spectrum—the range of frequencies used for all electronic communications—is limited, so a limited number of channels must be allocated among broadcasters. In the mid-1920s, when radio broadcasting first became popular, stations frequently drowned out one another’s signals. The Radio Corporation of America (RCA), the dominant radio manufacturer of the day, joined angry consumers in calling for government regulation of frequencies. The Radio Act of 1927 created the Federal Radio Commission to assign broadcasting licenses. In 1934 the Federal Communications Commission (FCC), an independent regulatory agency, was created. The FCC took over federal management of all kinds of electronic communications (now including telephones, AM and FM radio, over-the-air and cable television, satellites, telegraph, and citizens band radio). The FCC, now a massive agency controlled by a five-member commission, is instructed by law to regulate broadcasting in “the public interest, convenience, or necessity.”

The second major justification for tighter federal government regulation of the broadcast media is the public-interest argument: Broadcasters use public airwaves. Because they use public resources to serve the public, they should be regulated, as public utilities are. Secretary of the Interior Herbert Hoover was a major architect of federal radio regulation. In 1924 he argued that “radio communication is not to be considered as merely a business. . . . It is a public concern impressed with the public trust and to be considered primarily from the standpoint of public interest to the same extent and upon the same general principles as our other public utilities.” Even if radio frequencies had not been scarce, Hoover and other public-interest-oriented politicians of the era would likely have called for regulation. Hoover’s antibusiness sentiments ran deep; several times he expressed doubts about whether commercial advertisements should be allowed on radio.

The FCC and Congress have created policies that define technical standards, licensing procedures, and broadcasting standards. All broadcasting station licenses must be periodically renewed, and the renewal process gives the FCC a chance to deny licenses to stations that break its rules. Two of the most controversial aspects of FCC decisions have concerned content regulation and the ownership of broadcasting facilities.

One of the goals of federal regulation is to guarantee a diversity of views in the media. Diversity in the “marketplace of ideas,” a popular metaphor, is prized in a democratic society because it offers citizens the freedom to make up their own minds. One-sided coverage in the print media is generally not worrisome; people with different points of view can start new newspapers or find existing papers that will print an opposing opinion. Broadcast frequencies are scarce, however, and diversity is therefore limited.

Regulation balances the free speech rights of broadcasters with the audience’s “right to know.” For example, during political campaigns, the equal-time provision in federal law requires that if one major candidate for office is allowed to buy commercial time, then other candidates must be similarly accommodated. The rule does not apply to news stories but only to paid time and “free time” broadcasts, such as talk shows.

Other regulatory policies have been much more controversial. The bill that created the FCC explicitly forbade censorship or interference with the right of free speech on the radio. Nevertheless, in 1949 the FCC adopted a policy known as the fairness doctrine. The fairness doctrine required broadcasters to provide “reasonable opportunities for the expression of opposing views on controversial issues of public importance.” The doctrine applied to public affairs shows, entertainment, and some advertising, and critics called it censorship. The Supreme Court upheld the fairness doctrine as a reasonable policy designed to “preserve an uninhibited marketplace of ideas.” The Court argued that “it is the right of the viewers and listeners, not of broadcasters, which is paramount.” The Court has struck down fairness-oriented regulations on newspapers because they violate the First Amendment, but broadcasting regulations are justified by the scarcity argument.

During the Ronald Reagan era, conservative appointees to the FCC gained a majority and took many steps to deregulate broadcasting. To name only three, they discontinued FCC supervision of radio broadcast formats, eased restrictions on indecent broadcasts during some parts of the day, and removed limitations on the number of commercial messages permitted during children’s television shows. By far the most notable change, however, was the abolition of the fairness doctrine. Fearful of such a step, Congress passed a law that required the commission to administer the fairness doctrine, but on June 19, 1987, President Reagan vetoed the bill. His veto message said that content-based regulation by the federal government was “antagonistic to the freedom of expression guaranteed by the First Amendment.” Reagan claimed that the scarcity argument no longer held: The rapid expansion of cable television afforded many outlets for different ideas. The fairness doctrine’s supporters did not have the votes to override the veto; shortly thereafter the FCC formally abolished the doctrine. The doctrine’s supporters continue to work actively for its passage through Congress.

A sizable group in Congress has continued to believe that the broadcast media should be regulated in the public interest. In 1988 Congress passed a bill to limit commercials and require educational service for children. Reagan vetoed the law, stating that “the Constitution simply does not empower the Federal Government to oversee the programming decisions of broadcasters.” Support remained strong for the idea, however, leading to passage of the Children’s Television Act of 1990, which requires television stations to serve the “educational and informational needs of children.” The FCC promised active supervision, but was embarrassed when the Center for Media Education inspected station records and found that many stations were using commercial cartoons and situation comedies to satisfy their educational programming requirements. In 2006, the FCC added provisions to the act to cover websites geared toward children.

The Internet age has ushered in a new set of issues regarding censorship and the role of regulation by the federal government. Many bills that certain groups have considered forms of censorship have been introduced but not put into law. Perhaps the most publicized of these attempts was the Stop Online Piracy Act (SOPA) of 2011. The bill would have given the Department of Justice the right to block ISPs of websites accused of facilitating or hosting content that infringed copyright. Wikipedia was perhaps the most prominent opponents of the bill, which was never passed. Other bills such as the Cyber Intelligence Sharing and Protection Act (CISPA) and the Protect Intellectual Property Act (PIPA) met similar fates.

On balance, Congress has restrained itself from the tendency to regulate print and electronic media. With rare exceptions, Congress has advocated the free exchange of views. When “compelling state interests” have been present—as they were during both world wars—Congress has felt compelled to proceed down the pathway to censorship. After peace has been restored, however, Congress has resumed its generally benevolent approach to press and speech freedoms.

Bibliography

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Harris, Fred R. Deadlock or Decision: The U.S. Senate and the Rise of National Politics. New York: Oxford UP, 1993. Print.

Hartz, Louis. The Liberal Tradition in America. New York: Harcourt , 1955. Print.

Koop, Theodore F. Weapon of Silence. Chicago: U of Chicago P, 1946.

Mock, James R. Censorship 1917. Princeton: Princeton UP, 1941. Print.

Schwabach, Aaron. Internet and the Law: Technology, Society, and Compromises. 2nd ed. Santa Barbara: ABC-CLIO, 2014.

Smith, James M. Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties. Ithaca: Cornell UP, 1956. Print.

Smith, Steven S. The American Congress. 9th ed. Boston: Houghton, 2015. Print.