Narrowly defined, censorship is a governmental system for controlling beforehand which publications and expressions are permitted. Broadly defined, the word refers to all restrictions--particularly those of governments--on speech, publications, and performances.
The eighteenth century framers of the First Amendment to the U.S. Constitution intended to prohibit most government prior restraints on publications, especially the practice of requiring licenses for the publication of books and periodicals. The framers were influenced by the noted jurist, William Blackstone
For more than a century, the First Amendment’s restrictions on censorship applied only to the federal government. State and local governments were not bound by any First Amendment provisions, and many states enacted censorship statutes, often in the form of sedition acts. In 1925, in Gitlow v. New York
The landmark case for censorship was Near v. Minnesota
Following Near, the Court took the position that prior restraint, or any attempt to prevent the circulation of material or suppress part of its content before it reaches the public, is presumptively unconstitutional, a violation of the First Amendment. The Court insisted on determining whether materials are possibly seditious or obscene through criminal prosecution after publication or broadcast. In addition to not violating the no-prior restraint principle, the postexpression prosecutions ensured jury trials, with the input of “community standards” and requiring conviction beyond a reasonable doubt.
The Court’s most famous prior restraint
Meanwhile, the Washington Post
The lower courts were aware that their decisions were preliminary to an appeal to the Supreme Court, though haste was necessary as the Court was about to adjourn for the summer. The Court agreed to hear the case on an expedited basis. On June 30, 1971, the Court issued a per curiam judgment stating that the government had not met its burden of demonstrating that publication of the Pentagon Papers would endanger lives and harm the national interest. Only three justices wanted to declare that prior restraint
The Pentagon Papers decision did not affect the federal government’s prerogative of providing criminal punishment for persons who illegally reveal classified information about national security. In fact, Daniel Ellsberg was indicted and tried for leaking the Pentagon Papers. However, the result in his case was a mistrial because of the Nixon administration’s misdeeds.
In subsequent cases, the Court has reaffirmed the constitutional right of newspapers not to be limited by prepublication restrictions. In Nebraska Press Association v. Stuart
However, the Court has not disapproved all licensing systems that involve some prior restraints of speech. In the cases of Marchetti v. United States
In 1865, the U.S. Congress
As American culture became more liberal, however, restrictions on the publication and circulation of what many people considered obscenity presented problems for the Court. Two of the most liberal justices appointed by President Franklin D. Roosevelt, William O. Douglas
In Roth v. United States
The Roth standard of obscenity
The emergence of new communication technologies has also raised numerous issues of censorship. Films
After 1973, a few films were prosecuted as indecent under the Miller standards. In Jenkins v. Georgia
When examining the policies of the Federal Communications Commission when censoring radio and television broadcasts, the Court has shown a great deal of deference. In Federal Communications Commission v. Pacifica Foundation
After the CDA was declared unconstitutional, Congress responded with the passage of another law, the Children’s Online Protection Act of 1998
The Supreme Court was more sympathetic to the Children’s Internet Protection Act of 2000
A standard work on the subject of media law and censorship is Don R. Pember and Clay Calvert’s Mass Media Law (14th ed. New York: McGraw-Hill, 2004), which is known for its well-organized case studies. Each new edition keeps up with current issues. The early history of federal censorship is detailed in James C. N. Paul and Murray L. Schwartz’s Federal Censorship: Obscenity in the Mail (New York: Free Press of Glencoe, 1961). Morris L. Ernst and Alan U. Schwartz also provide much useful information on censorship issues in Censorship: The Search for the Obscene (London: Collier-Macmillan, 1964). Recent issues are included in Herbert Foerstel’s Free Expression and Censorship in America (Westport, Conn.: Greenwood Press, 1997), which also includes a table of cases. Cass R. Sunstein’s One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, Mass.: Harvard University Press, 1999) argues that in recent years the Court has tried to avoid sweeping judgments. David Rudenstine’s The Day the Presses Stopped: A History of the Pentagon Papers Case (Berkeley: University of California Press, 1996) is a comprehensive account of the case. Anatomy of Censorship: Why the Censors Have It Wrong, by Harry White (Lanham, Md.: University Press of America, 1997), is a polemic but provides some useful information.
Ashcroft v. Free Speech Coalition
Brandenburg v. Ohio
Gitlow v. New York
Near v. Minnesota
New York Times Co. v. United States
Obscenity and pornography
Roth v. United States and Alberts v. California
Sedition Act of 1798
Speech and press, freedom of