Censorship and the U.S. Constitution
Censorship and the U.S. Constitution encompass the ongoing dialogue about the balance between freedom of expression and governmental regulation. The Constitution, initially ratified in 1789, contained implicit protections for freedom of expression, which were explicitly articulated in the Bill of Rights two years later, particularly through the First Amendment. This amendment prohibits Congress from enacting laws that would restrict freedoms such as speech, religion, and the press, underscoring the belief that open discourse is essential for a functioning democracy.
While the Constitution promotes broad protections against censorship, it does not guarantee unlimited freedom of speech; certain forms of speech—such as obscenity, defamation, and incitement—can be regulated. Contemporary issues have arisen, particularly around the role of social media as a platform for expression, where debates over misinformation and the limits of free speech have intensified. The events surrounding the 2020 U.S. presidential election, including the January 6 Capitol attack, highlighted the complexities of free speech in the digital age and sparked discussions about how social media companies navigate these rights. Overall, the interplay between censorship, individual rights, and democratic ideals remains a pivotal aspect of American political discourse.
Censorship and the U.S. Constitution
Ratified: 1789
Place: United States (national)
Significance: When the U.S. Constitution was originally ratified it contained only implicit guarantees of freedom of expression; explicit guarantees were written into its Bill of Rights, which was ratified two years later
Bill of Rights
First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Second Amendment
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Third Amendment
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.
Seventh Amendment
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Eighth Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Ninth Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Tenth Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The U.S. Constitution has long been celebrated as a model of federalism. While the system of government that it created was framed on an assumption that popular opinion unfettered by censorship would play a crucial role in forging democratic political consensus, the document itself contained no explicit guarantees of individual freedom of expression.
The Constitution written in 1787 was concerned mainly with the structure of government. Its preamble implies the nature of consensual government that Thomas Jefferson held to be crucial to his cardinal values of “life, liberty, and the pursuit of happiness.” To Jefferson and many other Founders, promotion of the “general welfare” to “secure the blessings of liberty” implied the specific rights that were later defined in several amendments.
The Constitution itself outlined the structure of the legislative, executive, and judicial branches of government, and established the relationships among them. For example, the document explained how differences of opinion between the legislative and executive branches should be settled. It also defined the relationship between the federal government and the governments of the individual states—by prohibiting, for example, any state from imposing duties on goods imported from another, and by affirming that a citizen of any given state is also a citizen of all others.
The Constitution’s provisions for admitting new states and for amending itself implied that debate and discussion about these matters should be open and free. In addition, the checks and balances built into the Constitution implied that government decisions should be made by the many—as opposed to the few—a view that implied a need for uncensored discussion and debate.
Several amendments to the Constitution, in addition to the first, also implied a need for uncensored exchange of information. For example, the long-standing tradition of open police and court records in the United States owes as much to the Sixth Amendment as it does to the First Amendment. The principle of uncensored public access to the mechanisms of justice has also been invoked to expose instances of “cruel and unusual punishment,” which the Eighth Amendment outlawed. The Ninth and Tenth amendments reserved undelegated powers to the individual, again implying an uncensored cacophony of voices. This might also be said about the Thirteenth Amendment, which outlawed slavery; the Fifteenth Amendment, which forbade discrimination on condition of “race, color, or previous servitude”; and the Nineteenth Amendment, which extended the right to vote to women.
Despite adoption of the Bill of Rights in 1791, censorship legislation soon followed. The Constitution’s first major test in this area was the Sedition Act of 1798.