Censorship Summary

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 BlackstoneBlackstone, William, who had written that “liberty of the press…consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.” Blackstone thus endorsed the government’s right to punish people who publish material that “is improper, mischievous, or illegal.” Following the great controversy over the federal Sedition Act of 1798Sedition Act of 1798, however, the meaning of censorship gradually changed in the United States. By the early nineteenth century many American jurists were arguing that the First Amendment prohibited the federal government from punishing a person for expressing political or religious ideas.Prior restraint

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[c]Gitlow v. New York, the Supreme Court held that the prohibitions of the First Amendment were applicable to state and local governments through the incorporation of the Fourteenth Amendment, thus opening the door to challenges to state censorship statutes. However, the Court rejected Gitlow’s claim that his freedom of speech rights had been violated and upheld his conviction under a New York criminal anarchy statute for the distribution of pamphlets advocating the establishment of socialism.

The landmark case for censorship was Near v. Minnesota[c]Near v. Minnesota (1931). The state of Minnesota had passed a public nuisance statute that allowed public officials to obtain injunctions to stop publication of “malicious, scandalous and defamatory” newspapers or periodicals. The county attorney in Minneapolis used the statute against Jay Near’s anti-Semitic periodical sheet that was accusing many public leaders of improprieties, frequently in offensive terms. By a 5-4 vote, the U.S. Supreme Court overturned the injunction and also struck down the underlying statute as a “gag law” that constituted the “essence” of censorship. In the opinion for the majority, Chief Justice Charles Evans HughesHughes, Charles Evans;on the First Amendment[First Amendment] interpreted the First Amendment primarily from the perspective of Blackstone’s condemnation of prior restraint. Near v. Minnesota[c]Near v. Minnesota was for many years the measure of whether state and local legislation constituted impermissible restriction on freedom of speech and press.

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 restraintPrior restraint case was New York Times Co. v. United States[c]New York Times Co. v. United States (1971), which dealt with the Pentagon PapersPentagon PapersVietnam War;Pentagon Papers, the top-secret Vietnam War documents that were leaked to The New York Times by a government employee, Daniel EllsbergEllsberg, Daniel, who opposed the war. Following the newspaper’s publication of some of the documents, the U.S. District Court in New York issued a temporary restraining order preventing the Times from further publication pending a decision on the government’s application for an injunction. The case went to trial in the district court under Judge Murray R. GurfeinGurfein, Murray R.. Although Gurfein was initially disposed to favor the government’s position, he changed his view during the course of this first trial and denied the government’s application for an injunction but kept the restraining order in place long enough for the government to appeal. In his decision, Gurfein said that while “prior restraint” might be possible in this case, the evidence adduced in the trial by the government did not support it, and hence the presumption against prior restraint prevailed.

Meanwhile, the Washington PostWashington Post had also acquired a copy of the Pentagon Papers, though it is not clear if the Post’s copy was identical to that received by The New York Times. The Post, eager to establish its reputation as a national newspaper, decided to publish an article based on the papers, despite requests from the government to refrain. Accordingly, the government also applied for a restraining order, preliminary to an injunction, against the Post. However, when the Post case went to trial before District Judge Gerhard Gesell, he, too, denied the government’s application, though he also permitted further temporary restraint to give the government time to appeal. On the appeals level, the courts divided. The federal Appeals Court in the Second District (New York) reversed Judge Gurfein, while the Appeals Court in the District of Columbia upheld Judge Gesell.

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 restraintPrior restraint;and Pentagon Papers[Pentagon Papers] would never be justified under the First Amendment. The majority acknowledged that prior restraint might be permitted in extraordinary circumstances, but not in this particular instance. Chief Justice Warren BurgerBurger, Warren;and Pentagon Papers[Pentagon Papers] wrote that the newspapers could be criminally prosecuted for illegally publishing classified information, but only after publication had occurred.

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[c]Nebraska Press Association v. Stuart (1976), for example, the Court held that trial judges may not use gag orders to prevent newspapers from publishing information that is potentially prejudicial to a criminal defendant when such information is obtained in open court. The Court unanimously refused to erode an established First Amendment right because of a speculative danger that the publication of material might harm a defendant’s right to a fair trial.

However, the Court has not disapproved all licensing systems that involve some prior restraints of speech. In the cases of Marchetti v. United States[c]Marchetti v. United States (1968) and Snepp v. United States[c]Snepp v. United States (1980), it approved the Central Intelligence Agency’sCentral Intelligence Agency rules requiring former employees to submit proposed writings for review before publication. When reviewing local ordinances requiring licenses for parades, as in Cox v. New Hampshire[c]Cox v. New Hampshire (1941), the Court has recognized the validity of time, place, and manner restrictions so long as they are reasonable and not based on the speech content of the parade. Elementary and secondary schools were granted the right to censor student publications in Hazelwood School District v. Kuhlmeier[c]Hazelwood School District v. Kuhlmeier (1988). In Walker v. City of Birmingham[c]Walker v. City of Birmingham (1967), the Supreme Court recognized that judges may punish persons who disobey court orders restraining speech, even if the restriction might later be found unconstitutional.

In 1865, the U.S. CongressCongress, U.S.;antiobscenity legislation enacted the Postal ActPostal Act (1865), making it a crime to use the mails to send any “publication of a vulgar or indecent character.” Anthony ComstockComstock, Anthony led a crusade to make the postal regulations even more restrictive. In 1873, Congress responded with a statute that created special agents to seize “lewd or lascivious” materials and provided criminal penalties of up to five years for a first offense. Often courts applied what was known as the Hicklin rule, which went back to the British case Regina v. Hicklin[c]Regina v. Hicklin (1868). That rule allowed materials to be prosecuted on the basis of isolated passages that had bad effects on susceptible persons. Even serious books, such as Theodore Dreiser’sDreiser, Theodore Sister CarrieSister Carrie (Dreiser) (1900) were sometimes proscribed. Few jurists argued that the Comstock laws violated the First Amendment. In the Near v. Minnesota[c]Near v. Minnesota decision of 1931, Chief Justice Charles Evans HughesHughes, Charles Evans;on obscenity[obscenity] thought it obvious that “the primary requirements of decency may be enforced against obscene publications.” Until 1957, the Court upheld the Comstock laws in numerous rulings.

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. DouglasDouglas, William O.;on freedom of speech[freedom of speech] and Hugo L. BlackBlack, Hugo L.;on freedom of speech[freedom of speech], took the position that any restriction on freedom of speech or of the press was unconstitutional, but they never won over a majority of their colleagues. Consequently, during the second half of the twentieth century, the Court was engaged in the difficult task of balancing the rights of free expression against the rights of people who do not wish to be exposed to materials they find offensive and against the need to protect children from the negative effects of pornographic materials.

In Roth v. United States[c]Roth v. United States (1957), the Court upheld the conviction of a bookseller under the Comstock statute for selling obscene materials. In upholding the conviction, Justice William J. Brennan,Brennan, William J., Jr.;on obscenity[obscenity] Jr. wrote that obscenity was not protected by the First AmendmentFirst Amendment;and obscenity[obscenity], but he defined the term obscenity narrowly. Rejecting the old Hicklin rule, Brennan insisted that courts must examine works as a whole, rather than isolated portions of them. He further defined obscenity as sexual material appealing to a prurient interest, as understood by the average person in the community. Although he reaffirmed that obscenity has no constitutional protection, the Roth ruling was particularly important for establishing that obscenity must be narrowly defined on the basis of the First Amendment rather than on the common law. Soon after the Roth ruling, literary works such as D. H. Lawrence’sLawrence, D. H. Lady Chatterley’s LoverLady Chatterley’s Lover (Lawrence)[Lady Chatterleys Lover (Lawrence) (1928) appeared in bookstores and on newsstands.

The Roth standard of obscenityObscenity and pornography;definitions of was rather unclear. From 1967 to 1973, the Court decided obscenity cases largely on a case-by-case basis, changing the guidelines every few years. In 1973, in Miller v. California[c]Miller v. California and its companion case, Paris Adult Theatre v. Slaton,[c]Paris Adult Theatre v. Slaton the majority of the justices finally agreed on a definition of obscenity. An obscene work, they ruled, “taken as a whole, appeals to the prurient interest,” depicts sexual acts in a “patently offensive way,” and lacks “serious literary, artistic, political, or scientific value.” The Court also decided that local community standards, not national ones, were to be used in determining obscenity. In New York v. Ferber[c]New York v. Ferber (1982) the Court approved prosecution of pornographic materials--whether obscene or indecent--that portray children involved in sexual acts. In cases involving childChild pornography pornography, the Court even allowed criminal prosecutions for the mere possession of such materials in the privacy of one’s home.

The emergence of new communication technologies has also raised numerous issues of censorship. FilmsFilms were uniquely susceptible to prior restraint formsPrior restraint of censorship, and several states established agencies empowered to decide which films would be allowed in the state. In Mutual Film Corporation v. Ohio[c]Mutual Film Corporation v. Ohio (1915) the Supreme Court held that films were a “business pure and simple,” not having any protection from censorship under the First Amendment. However, in Burstyn v. Wilson[c]Burstyn v. Wilson (1952), the Court overturned its 1915 ruling and held for the time that films were a medium for expressing ideas, therefore deserving of some degree of protection under the First and Fourteenth Amendments. In this case, moreover, the court unanimously found that New York censors had acted unconstitutionally in prohibiting the showing of The Miracle,Miracle, The (film) a film opposed by the Roman Catholic Church. Writing for the Court, Justice Tom C. ClarkClark, Tom C.;on censorship[censorship] wrote that pre-exhibition censorship would be justified only in exceptional cases, and that standards must not permit unfettered discretion by censors. In Freedman v. Maryland[c]Freedman v. Maryland (1965), the Court continued to allow some censorship of films, but prohibited viewpoint censorship and required procedures for prompt judicial review.

After 1973, a few films were prosecuted as indecent under the Miller standards. In Jenkins v. Georgia[c]Jenkins v. Georgia (1973), the Court found that the movie Carnal KnowledgeCarnal Knowledge (film) was not obscene, even though many communities and lower courts had found otherwise. The Court clearly stated in Sable Communications v. Federal Communications Commission[c]Sable Communications v. Federal Communications CommissionFederal Communications Commission (1989) that “sexual expression that is indecent but not obscene is protected by the First Amendment.” By the turn of the twenty-first century, as American society became increasingly permissive toward sexuality, it became almost impossible for prosecutors to convince either juries or appellate courts that a film was obscene. However, the public tended to support the notion of using zoningZoning;and adult entertainment[adult entertainment] ordinances to restrict the locations of adult entertainment establishments. The Court, as in City of Renton v. Playtime Theatres[c]City of Renton v. Playtime Theatres (1986), has usually been receptive to such restrictions.

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[c]Federal Communications Commission v. Pacifica Foundation (1978), the justices voted five to four to uphold a Federal Communications CommissionFederal Communications Commission (FCC) rule that limited the times of the day for broadcasting nonobscene “indecent material.” Justice John Paul StevensStevens, John Paul;on broadcasting[broadcasting] wrote that “of all forms of communications,” broadcasting has the most limited First Amendment protection because of its direct intrusion into private homes where it was uniquely accessible to children.

The Internet,Internet which is often available to children, has created special problems. In 1996, CongressCongress, U.S.;and obscenity[obscenity] attempted to protect children with the Communications Decency ActCommunications Decency Act (1996) (CDA), making it a criminal offense “knowingly” to transmit “obscene or indecent” material to anyone under the age of eighteen. In Reno v. American Civil Liberties Union[c]Reno v. American Civil Liberties Union (1997), the Court struck down the CDA because of its excessive abridgment of adults’ rights to gain access to nonobscene sexually oriented materials that are constitutionally protected. The government, concluded Justice Stevens, had not met its burden of showing why a more narrowly tailored would not protect children.

After the CDA was declared unconstitutional, Congress responded with the passage of another law, the Children’s Online Protection Act of 1998Children’s Online Protection Act of 1998[Children Online Protection Act of 1998]COPA;Children’s Online Protection Act of 1998[Children Online Protection Act of 1998] (COPA), which required online providers to prevent children from accessing sexual materials deemed to be harmful. A district court, supported by the Third Circuit Court of Appeals, prohibited implementation of the law in anticipation that the statute would likely fail the “strict scrutiny” test, because it was not narrowly tailored and failed to use the least restrictive means available to achieve its objective. When the Supreme Court reviewed the injunction in American Civil Liberties Union v. Ashcroft[c]American Civil Liberties Union v. Ashcroft (2004), the justices agreed with the lower court by a 5-4 margin. Writing for the majority, Justice Anthony KennedyKennedy, Anthony argued that the injunction was not an abuse of judicial discretion because the record indicated the availability of “less restrictive alternatives to the statute,” such as home filters.

The Supreme Court was more sympathetic to the Children’s Internet Protection Act of 2000Children’s Internet Protection Act of 2000[Childrens Internet Protection Act of 2000] (CIPA),Internet which was designed to prevent minors from accessing obscene materials at Internet terminals in public libraries. In order to receive federal funding, the CIPA required that libraries install software to block out indecent images. In United States v. American Library Association[c]United States v. American Library Association (2003), the justices decided by a 6-3 margin to uphold the constitutionality of the statute. Writing for the majority, Chief Justice RehnquistRehnquist, William H.;on the Internet[Internet] argued that government may set reasonable standards for the programs it sponsors, that Internet access in a library is not a public forum, and that adults could ask librarians for permission to access proscribed Web sites.

• 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

Cold War

First Amendment

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