Jeremy Harris Lipschultz. Encyclopedia of Journalism. Editor: Christopher H Sterling. Sage Publications, 2009.
Censorship as defined in the United States refers to the government’s prior restriction, limitation, or filtering of information or ideas in speech and various forms of mass media, such as newspapers and broadcasting and other electronic media, most recently including the Internet. Historically, censorship has been a valuable tool for repressive forms of totalitarian government that do not value or allow freedom of speech, expression, or religion, let alone free news media. Under such conditions, draconian censorship often follows a desire to control the public. For example, a government official or agency may have responsibility for reviewing and altering media content prior to publication. In the common law English tradition of making law through judicial decisions, as well as the United States constitutional First Amendment framework, freedom of expression typically begins with the ideal that there shall be no prior restraint on speech or press, but transgressions—such as defamation of character—may be subject to subsequent punishment. English jurist William Blackstone summarized the law in his Commentaries on the Law of England (1769), which received wide attention in colonial America.
Censorship is traditionally of two types. Prior restraint—the prevention of an idea being expressed—is the most typical, but post-publication punishment can have the same essential “chilling” effect on the free expression of ideas. Because of the wording of the First Amendment (1791) to the U.S. Constitution (“Congress shall make no law…”), in the American legal system censorship nearly always means government, not private, actions taken to limit expression.
The classic faith in a marketplace of ideas began with English poet and essayist John Milton’s view in Areopagitica (1644), which favored a test of competing ideas: “Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?” In essence, Milton’s theory is that an open marketplace of ideas, including false ones, favors a steady movement toward correction over time.
In this vein, Blackstone’s Commentaries summarized common law precedent through cases of an opposition to prior restraints, which are considered government actions that hinder communication by stopping it before publication: “Every freeman has an undoubted right to lay what sentiments he pleases before the public … but if he publishes what is improper, mischievous, or illegal, he must take the consequences for his own temerity.” The founding of the United States brought over time a series of legislative tendencies, particularly in time of war, toward enacting restrictions on free expression, mostly subsequent punishments rather than prior restraints, and this was supported by decisions of various courts. Restriction of free expression also has been rationalized on the basis of morality under the guise of protection of communities from obscenity, which has no legal protection.
Modern First Amendment cases may be guided by any number of legal tests. A common law approach adopted by early-twentieth-century courts was to allow subsequent punishment of any speech that had a bad tendency. Patterson v. Colorado (1907), for example, upheld criminal libel laws that limited press attacks on government that might incite public disturbances. A few years later, the U.S. Supreme Court in Schenck v. United States (1919) offered what amounted to a “clear and present danger” test—one that suggested restricting only that speech that presented a serious and immediate danger to public safety. The Court also has attempted a “balancing” approach to, for example, weigh the rights of adults to access media against the need to protect children.
For those wishing to truly protect First Amendment rights, a strict scrutiny approach—one in which the burden falls to the government to show a compelling reason for the regulation—works best. Under such a test, “narrowly tailored” restrictions may be upheld, as in Board of Trustees of State of N.Y. v. Fox (1989).
The scrutiny approach was perhaps most helpfully defined in what has been labeled intermediate scrutiny in the O’Brien (1967) case. Scrutiny would require a court to ask four pivotal questions about any attempt to limit media news coverage:
- Is the government regulation within its constitutional power?
- Does the regulation further an important or substantial government interest?
- Is the interest unrelated to the suppression of free expression?
- Is the incidental restriction of free expression no greater than is essential to the furtherance of the stated government interest?
Use of this four-part test means that it is very difficult for the government to justify restricting speech. Therefore, a court could only uphold those government restrictions that are not targeted at stopping speech. For example, it would be legal to speak out against a war but not violate laws aimed at preventing obstruction of it. Further, any law under this analysis would need to be limited to its goals and no broader than needed to further them.
Censoring the Movies
For much of the twentieth century, for example, numerous states and communities employed censors to review movies before allowing them to be shown in a theatre. In Times Film Corp. v. Chicago (1961), the U.S. Supreme Court refused to overturn a municipal code that required submission of all motion pictures for review before public showing. The Chicago board during the late 1950s would not issue a permit for the film Don Juan without prior examination by censors. While motion pictures have long been included “within the free speech and free press guaranty of the First and Fourteenth Amendments,” as stated in Joseph Burstyn, Inc., v. Wilson in 1952, the Times Film Corp. court ruled that “[i]t is not for this Court to limit the State in its selection of the remedy it deems most effective to cope with such a problem, absent, of course, a showing of unreasonable strictures on individual liberty resulting from its application in particular circumstances.” The split decision left Chief Justice Earl Warren writing for four dissenters: “To me, this case clearly presents the question of our approval of unlimited censorship of motion pictures before exhibition through a system of administrative licensing.” In Freedman v. Maryland (1965), the Court struck down state law requiring unconstitutional submission of films to a government review board before showing them. The film board era in many states ended soon after and was replaced in 1968 by a voluntary Motion Picture Association of America rating system. From this point forward, prosecutors used criminal obscenity laws to charge people selling or showing obscene media content.
Despite the First Amendment’s stricture that “Congress shall make no law,” the Supreme Court has never found freedom of speech to be absolute. The classic expression about prior restraint came in Near v. Minnesota (1931), when the Court upheld the common law conclusion of Blackstone that generally there shall be no prior restraints on publication. However, the Court recognized what it termed “exceptional cases”: the need to protect fighting forces when a nation is at war, “the primary requirements of decency” to restrict obscene publications, and “security of the community life” from “acts of violence” all allow for government intervention. Likewise, in Chaplinsky v. New Hampshire (1942), a statute was upheld that read, “No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.” The court concluded that “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem: These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Thus, near the Rochester City Hall, the case determined that it was unlawful to say the following offending words in the face of another: “You are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.”
Journalism, Access, and Censorship
Censorship frequently is a problem for journalists attempting to aggressively report news. The watchdog model of press coverage may place reporters in an adversarial stance with their sources in government. State public record laws and the federal Freedom of Information Act (FOIA) provide journalists (and others) with mechanisms for seeking and obtaining the records vital to much investigative journalism. Typically, such laws establish a time frame and reasonable costs for copying documents. However, material that is classified for national security reasons, personnel records, and other internal agency working documents are among the several exceptions to public records laws.
News reporters also need access to public meetings in order to be the eyes and ears of the general public. Open meetings laws, sometimes called “sunshine laws,” seek to keep public officials from conducting their business in secret. State public meetings laws generally require elected public officials conducting official business to vote and take other action in open meetings available to the public and press.
Reporters sometimes grant people who serve as sources of information a promise of confidentiality because public employees may lose their jobs for leaking information to the press. “Whistleblower” laws may protect those who disclose illegal, immoral, or inefficient government practices. At the same time, reporters in some states are protected by shield laws that grant at least a qualified right to protect news sources from court subpoena. At the federal level, bills in 2007-08 failed to receive approval that would protect reporters refusing to disclose a confidential source. Courts have concluded that reporter privilege, or a right to protect sources, is qualified and not absolute. In Branzburg v. Hayes (1972), the Supreme Court ruled that the First Amendment does not protect journalists from appearing before a grand jury to provide secret testimony. Some news reporters have gone to jail when refusing to break a promise of confidentiality to an anonymous source when asked to do so by a judge or grand jury. Judith Miller, as a reporter for The New York Times, spent more than 80 days in jail in 2005 for refusing to disclose a source. Law enforcement, too, may seek to compel journalists to provide information during the course of a criminal investigation. In 2006-07, for example, blogger Joshua Wolf spent a record 226 days jailed for refusing to give a federal grand jury in California videotapes he had recorded during a demonstration in 2005 in San Francisco.
Another area of concern is the courtroom. The right of a free press (the First Amendment) must be balanced against the right of a defendant to have a “speedy and public” trial (Sixth Amendment). Judges have sought to close courtrooms or issue gag orders to silence the press during the pretrial phase of a sensational case. However, the Supreme Court spoke plainly in the Nebraska Press Assn. v. Stuart (1976) case: “A prior restraint … has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.”
While most state and local courtrooms in America are now open to both broadcast and print journalists, broadcasters are barred from using audio and video equipment in federal court. Laws vary from state to state, and they frequently allow a trial court judge to decide whether or not broadcasting will be disruptive to the fair administration of justice.
Broadcasting and Scarcity
In broadcasting, stations are licensed by the Federal Communications Commission (FCC) to serve in what the 1934 Communications Act calls “the public interest, convenience or necessity.” To the extent that common law cases eventually shunned the notion of licensing (e.g., printers in England), broadcast regulation was a departure from the principle that licensing can be viewed as a mechanism of censorship and a vehicle for enforcing prior restraints. Section 326 prohibits censorship of broadcasters, but the licensing process may be seen as a restriction.
In NBC v. United States (1943), the Supreme Court treated broadcasting as a medium that uses the scarce spectrum resource as having a fiduciary responsibility to serve the public interest:
The licensee has the duty of determining what programs shall be broadcast over his station’s facilities, and cannot lawfully delegate this duty or transfer the control of his station directly to the network or indirectly to an advertising agency. He cannot lawfully bind himself to accept programs in every case … The licensee is obliged to reserve to himself the final decision as to what programs will best serve the public interest. We conclude that a licensee is not fulfilling his obligations to operate in the public interest, and is not operating in accordance with the express requirements of the Communications Act, if he agrees to accept programs on any basis other than his own reasonable decision that the programs are satisfactory.
The scarcity rationale persisted. In Red Lion v. FCC (1969), the Supreme Court built upon NBC and effectively limited broadcast speech to those with a license to serve public interest:
Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.
Despite the fact that broadcasting became a primary vehicle for otherwise-protected political speech, (1) those broadcasting without a license could be prosecuted as “pirates,” and (2) licensees were obligated to follow FCC rules and regulations.
Broadcasters argued in the 1960s that they had been relegated to second-class status with respect to First Amendment protections. The RadioTelevision News Directors Association consistently argued that the chilling effect of, for example, requiring program balance through the Fairness Doctrine was in effective prior restraint. The doctrine required broadcasters to (1) air coverage of controversial issues of public importance; and (2) offer significant contrasting viewpoints of these issues. Eventually, the courts concluded that the doctrine had been developed by the FCC in 1949, and even though Congress (though not the president) supported retaining it, the FCC had the legal authority to discontinue it in 1987. Congress twice attempted to reinstate it, but both times President Ronald Reagan and then President George H. W. Bush refused to sign legislation. The change opened radio airwaves to strident political (largely right-wing) advocates, such as Rush Limbaugh. Balance was replaced by advocacy, as the radio marketplace sold swaths of time for those willing to pay to present their views. Despite this, broadcasting remained a licensed medium.
Obscenity and Indecency
While journalism only rarely approaches questions of obscene or indecent content, it does happen. In the Miller v. California (1973) case, the Court’s decision offered a three-part test to identify obscenity (which is unprotected by the First Amendment) from indecency (which is): (1) whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to prurient interests; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. A positive finding on all three points defines the obscene. It falls to juries to decide whether the material appeals to “prurient interests” based upon community standards. Patent offensiveness is a question of specific state law. Miller affords protection to sexually oriented material if it has some degree of serious value. Print media have been granted greater freedom to publish sexual content, as they are easiest to keep from children through local zoning regulation.
Within obscenity law, child pornography is a special class. New York v. Ferber (1982) provided a compelling government interest in protecting minors from any form of exploitation. Nevertheless, Ashcroft v. Free Speech Coalition (2002) rejected the Child Pornography Prevention Act of 1996 as an unconstitutional burden on free speech.
One of the clearest divisions between speech limited on broadcast channels and that allowed on subscription services (such as cable or DBS channels) and the Internet is indecent material, which the FCC and Congress have agreed to restrict to a “safe harbor” defined as the hours of 10 p.m. to 6 a.m. on radio and television stations.
In FCC v. Pacifica Foundation (1978), the Supreme Court upheld the FCC’s enforcement of 18 U.S.C. 1464, which prohibits indecency over the air. When a New York City radio station aired comedian George Carlin’s monologue that included “seven words one could not say on television,” the FCC took note of the violation of its rules. The Carlin monologue, which was reproduced in the appendix of the case, expressed the forbidden words multiple times.
On appeal, the Supreme Court agreed with the FCC that censoring indecency from the air did not run afoul of First Amendment guarantees, as such speech was allowed during late night hours when a child was less likely to be listening. Nevertheless, Justice William Brennan, one of four dissenters in the case and a First Amendment purist, found such FCC regulation to have crossed the line into unconstitutional government censorship of speech.
Justice Brennan accurately predicted the battle lines drawn over the next three decades, as the FCC later challenged some broadcast “shock jock” programming, such as that of Howard Stern and “Bubba the Love Sponge,” both of whom would be eventually removed from broadcasting and shifted to subscription satellite radio, which is far less regulated. Eventually, the FCC extended its regulatory sweep to punish “fleeting expletives”—profanity blurted during a live broadcast (though a federal appeals court forced a review by the Supreme Court). Much of the FCC attention to such programs, in the view of many analysts, appeared to be driven by socially conservative activist mass letter and email campaigns that put pressure on the agency to “clean up” the airwaves.
The FCC has long restricted indecent speech to a late evening hours “safe harbor” when children are less likely to be present in the audience. Broadcast indecency, which blurs the definition between indecent and obscene, is defined (as upheld in the Pacifica case) as sexual or excretory activities or organs in material that panders or titillates without broader social or political value. Whether something is indecent or obscene is determined by context, however, thus making each situation unique.
The FCC applies a national contemporary community standard for the broadcast medium. Generally, cable and satellite services have been held by the courts to be largely free from indecency regulation and thus have more program freedom than their broadcast brethren because people must choose to subscribe to and pay for the service.
As it had before (with film and then video tape), technology intervened. The Internet offered a global distribution, network for media content determined to be obscene under the law to become the first profitable online industry—pornography. In the absence of international obscenity laws, national laws are designed to curb or prohibit the production, distribution, and sale of sexual materials. Current enforcement typically includes attempts to identify sexual predators in the online environment and prosecute them. For example, the U.S. Justice Department in 2006 sought but failed to obtain a judicial order against the search engine Google to turn over records on millions of users’ searches as part of a government effort to uphold online obscenity law.
Political speech is at the core meaning of the First Amendment. The theory is that a society needs a free exchange of ideas and an unfettered press in order to make good political decisions elect the best representatives and allow democracy to function. Therefore, political speech has the highest level of protection under American law. In recent years, courts have granted broadening commercial speech (advertising) rights, but these are far less sweeping than judicial deference given to any speech found to have political value. In this context, courts apply a strict scrutiny test to governmental restriction targeted at speech. The burden in these cases falls to government to provide justification for limiting free expression. Even where there is a compelling government interest, such attacks on free speech must be supported as necessary, and they must be narrowly tailored to advance the interest. Even here, government may not exercise unconstitutional actions. However, restrictions that are found to be content neutral (i.e., not targeted at specific political messages) may find sympathy from the courts.
Repeatedly, American courts have protected political speech as central to democratic freedom and self-government. Legal theorist Thomas Emerson (1970) offered the strongest theoretical arguments for defending a robust set of First Amendment rights: free speech allows for discovery of truth needed for democratic decisions by serving as a check on excessive government power; free speech increases political stability by offering a safety valve to relieve pressure that builds in a society; and it promotes slower and less traumatic social change. Emerson’s summary concludes that free speech allows for the fulfillment of individual enrichment, encouragement of the human spirit, and a greater understanding of humanity. In practice, government today is less engaged in playing the role of censor than are global media corporations, which do so through self-censorship within the context of program decision-making.
The American Library Association (ALA) links censorship to the degree of intellectual freedom in a society. ALA views censorship of all forms of “expressive materials,” such as books, videos, or other art, as taking place when these are “removed or kept from public access.” Censorship typically begins with an individual, group, or organization raising public concerns about specific media content. These complaints tend to be made to government officials. Often, the objectionable content has a literary or artistic nature. The National Coalition Against Censorship (NCAC) aligns dozens of groups seeking to “educate our own members and the public at large about the dangers of censorship and how to oppose them.”
Libel as Censorship
In New York Times Co. v. Sullivan (1964), the court made a landmark decision protecting the media’s right to criticize the performance of public officials by requiring any such person to prove “actual malice” on the part of media in the publication of a negative report about that official. Failing this high bar, negative media comment stands and is protected. In the case, the context of a 1960 advertisement protesting the treatment of civil rights activists was found not to libel an Alabama public safety official who had brought a suit for libel:
Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
The Sullivan court went so far as to quote James Madison from Elliot’s Debates on the Federal Constitution 4(1876): “Some degree of abuse is inseparable from the proper use of every thing, and in no instance is this more true than in that of the press.”
In the Internet age, the Telecommunications Act of 1996 and the Reno v. ACLU (1997) case have been used to protect Internet service providers (ISPs) as well as websites by treating them as publishers. In Zeran v. America Online (1997) a federal court limited liability in a libel case. In Blumenthal v. Drudge (1998) America Online was protected against a separate libel suit brought by a former aide of President Bill Clinton (1993-2001) against the online gossip website the Drudge Report.
Censorship of media messages has been a constant ever since the freedom to publish and speak began broadening several hundred years ago with case law in England through common law evolution and was carried to the colonies and ultimately enshrined in the First Amendment. The Internet is perhaps the most revolutionary development since the invention of the printing press to empower people, especially those outside elite centers of political and economic power, to use free speech and press as a challenge to the status quo. Thus, government censorship activities may be predicted to extend beyond the press to average citizens disseminating media content.