CENSORSHIP

Demonstrators outside the Brooklyn Museum of Art protest Mayor Rudolph Giuliani’s threat to withdraw the museum’s city funding based on what he felt were offensive works of art in the 1999 Sensation exhibit.

The suppression or proscription of speech or writing that is deemed obscene, indecent, or unduly controversial.

The term censorship derives from the official duties of the Roman censor who, beginning in
443 B.C. , conducted the census by counting, assessing, and evaluating the populace. Originally neutral in tone, the term has come to mean the suppression of ideas or images by the government or others with authority.

Throughout history, societies practiced various forms of censorship in the belief that the
community, as represented by the government, was responsible for molding the individual. For example, the ancient Greek philosopher Plato advocated various degrees of censorship in The Republic; the content of important texts and the
dissemination of knowledge were tightly con-
trolled in ancient Chinese society as is much
information in modern China; and for centuries
the Roman Catholic Churchâ€™s Index Librorum
Prohibitorum proscribed much literature as con-
trary to the churchâ€™s teachings.
The English-speaking world began wrestling
with issues of censorship in the seventeenth cen-
tury. In his Areopagitica (1644), John Milton
argued in favor of the right to publish, free from
government restraint. In the United States, the
FIRST AMENDMENT to the Constitution (1787)
guarantees FREEDOM OF SPEECH and FREEDOM
OF THE PRESS. When a U.S. government agency
attempts to prohibit speech or writing, the party
being censored frequently raises these First
Amendment rights. Such cases usually involve
communication that the government perceives
as harmful to itself or the public.
Abortion

In some cases, the government can constitu-
tionally censor the speech of those who receive
federal funding. For example, the Supreme
Court ruled in Rust v. Sullivan, 500 U.S. 173, 111
S. Ct. 1759, 114 L. Ed. 2d 233 (1991), that, with-
out restricting First Amendment rights, the gov-
ernment can ban ABORTION counseling in
federally funded health clinics.
Prisoners’ Mail

If the government’s interest is penological it
also has broader rights to censor speech. Prison-
ersâ€™ outgoing mail can be censored in order to
thwart escape plans, shield the recipients from
obscene or menacing letters, or circumvent inac-
curate or adverse reports about prison condi-
tions. Under the Supreme Court ruling in
Procunier v. Martinez, 416 U.S. 396, 94 S. Ct.
1800, 40 L. Ed. 2d 224 (1974), prison administrators
can censor prisoners’ personal correspondence only if it is necessary to maintain
security, order, or rehabilitation efforts. Such
censorship can be neither random nor excessively
troublesome.

Entertainment

Perhaps the most visible form of censorship
is that affecting the entertainment industry.
Theater and film, as types of public entertainment,
affect the common interest and can hence
be subjected to certain types of governmental
regulation. But attempts to regulate or censor
often risk obstructing the free speech rights of
playwrights, screenwriters, filmmakers, performers,
and distributors.

The U.S. Supreme Court has ruled that it is
lawful to censor obscene entertainment to safeguard
children from PORNOGRAPHY and to protect
adults from unknowingly or involuntarily
viewing indecent materials (Ginsberg v. New
York, 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d
195 [1968]). Although Supreme Court interpretation
permits individuals to view OBSCENITY in
the privacy of their homes (Stanley v. Georgia,
394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542
[1969]), theaters and movie houses are public
places and therefore subject to regulation (Paris
Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct.
2628, 37 L. Ed. 2d 446 [1973]). The difficulty
with such censorship is in trying to determine
what is “obscene.”

In MILLER V. CALIFORNIA, 413 U.S. 15, 93 S.
Ct. 2607, 37 L. Ed. 2d 419 (1973), the Supreme
Court concluded that a work is obscene and can
be regulated if it appeals to a viewer’s prurient
interest; portrays sexual conduct in a patently
offensive way; and lacks serious literary, artistic,
political, or scientific value. The Court further
ruled that interpretations of this definition may
vary across the United States and that communities
may apply their own local standards to
determine obscenity.

To avoid government censorship, the
Motion Picture Association of America (MPAA)
regulates itself through a voluntary rating system.
The system does not have statutory authority
but is used to help the industry conform with
statutes designed to protect children. Recognizing
a 1968 Supreme Court decision that favored
limited censorship for minors (Ginsberg v. New
York, 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d
195), the MPAA devised a rating system based
on the viewer’s age. A G rating signals that subject
matter is suitable for general audiences; PG
stands for Parental Guidance Suggested; PG-13
strongly advises guidance for children under age
13 because of possibly inappropriate material; R
requires accompaniment by an adult for children
under age 17, or 18 in some states; and NC-
17 or X prohibit anyone under age 17, or 18 in
some states, from entering the theater.
Radio and television have also met with governmental
pressure to control the content of
their broadcasts. Spurred by the belief that violence
on television adversely affects children’s
behavior and attitudes, Congress has attempted
several times to encourage the media to adopt
voluntary guidelines in the hope that less violence
on television will lead to a less violent society.
Although none of Congress’s acts have been
deemed outright censorship, government intrusion
into broadcasting to discourage certain
types of speech has not been welcomed by all.
The various pieces of legislation raise questions
about media self-censorship and the role of
the FEDERAL COMMUNICATIONS COMMISSION
(FCC) in regulating freedom of expression.
In response to congressional pressure the
NATIONAL ASSOCIATION OF BROADCASTERS
adopted the Family Viewing Policy in 1974 to
limit the first hour of prime-time programming
to material suitable for families. The policy was
found unconstitutional in 1976 (Writers Guild of
America, West, Inc. v. F.C.C., 423 F. Supp. 1064
[C.D. Cal., 1976]).

Congress addressed the content of children’s
television with the Children’s Television Act of
1990 (47 U.S.C.A. §§ 303a–303b [Supp. III
1991]), which limits the amount of advertising
on children’s television and compels broadcasters
to air educational programs. Failure to comply
with the act could jeopardize renewal of a
station’s license. Critics point out that the act has
not improved children’s programming because
of its vague standards and the FCC’s disinclination
to enforce it.

The Television Violence Act (47 U.S.C.A. §
303c [Supp. III 1991]), proposed in 1986 by Senator
Paul Simon (D-Ill.), was signed into law by
President GEORGE H.W. BUSH in December 1990.
This act, which expired in 1993, was intended to
prompt the networks, cable industry, and independent
stations to decrease the amount of violence
shown on television. Although it did not
constitute direct government regulation, the act
was criticized as a governmental attempt to
impose its values on society by discouraging, if
not suppressing, unpopular ideas.

The Telecommunications Act of 1996, 110
Stat. 56, required television manufacturers to
create a chip, known as the V-chip, which allows
users, presumably parents, to block out programs
based on their sexual or violent content.
The chip, which has been installed in television
sets manufactured since 1999, operates in conjunction
with a voluntary rating system implemented
by TV broadcasters that rates programs
for violence and sexual content.
Radio broadcasts have also come under
scrutiny. In FCC v. Pacifica Foundation, 438 U.S.
726, 98 S. Ct. 3026, 57 L. Ed. 2d 1073 (1978), the
Supreme Court ruled that a daytime broadcast
of George Carlin’s “Seven Dirty Words” monologue
violated the prohibition of indecency in
18 U.S.C.A. § 1464 (1948) and was therefore
subject to regulation. To many, this ruling gave
the FCC further authority to censor speech and
dictate values.

Music

Just as the entertainment industry has faced
regulation or censorship for allegedly violent,
obscene, or indecent material, so has the recording
industry. Claiming that some popular music
erodes morals by encouraging violence, drug
abuse, and sexual promiscuity, the Parents’
Music Resource Center, founded in 1985 by Tipper
Gore, the wife of the future vice president,
ALBERT GORE, successfully lobbied the music
industry to place warning labels on records that
may feature lyrics inappropriate for children.
Concerned about the rising rate of violent
crime against law enforcement officers, the assistant
director of public affairs for the FEDERAL
BUREAU OF INVESTIGATION (FBI) sent a letter in
August 1989 to Priority Records to protest a rap
group’s lyrics. N.W.A., a Los Angeles-based rap
group, recorded on its album Straight Outta
Compton the song “Fuck tha Police,” which violently
protested police brutality. Although the
letter from the FBI was a protest, not an attempt
at regulation, many in the music industry interpreted
it as an example of indirect censorship
through intimidation.

Perhaps the most famous legal proceedings
to censor music involved the rap group 2 Live
Crew. In early 1990, a Florida circuit judge
banned all sales of the group’s album As Nasty As
They Wanna Be on the grounds that the lyrics of
several of its songs, including “Me So Horny,”
violated community standards for obscenity.
The group brought suit to have the ban lifted in
Skyywalker Records v. Navarro, 742 F. Supp. 638
(S.D. Fla. 1990), but the judge upheld the
obscenity ruling. A record store owner was
arrested for continuing to sell the album and
two members of 2 Live Crew were arrested on
obscenity charges after a performance. The band
members were acquitted of all charges in October
1990, but the debate continues between
those demanding free expression in music and
those seeking to censor allegedly obscene material.

Art

For almost as long as artists have been creating
art, governments have both supported and
censored artists’ work. Ancient Athens, the
Roman Empire, and the medieval Catholic
Church financed many projects, whereas totalitarian
regimes, for example, banned many
works and repressed artists. The U.S. Congress
was reluctant to fund art that might subsequently
be construed as national art, or as government-
approved art until 1960s activism
encouraged it to do so. In 1965, the National
Foundation on the Arts and the Humanities was
established to foster excellence in the arts. It is
composed of two divisions, the National
Endowment for the Arts (NEA) and the
National Endowment for the Humanities
(NEH). Among its many interests, the NEA provides
stipends to deserving artists.
Controversy over the role of government
support of the arts arose in the late 1980s with
two artists who received NEA funding. In 1988,
the photographer Andres Serrano received harsh
condemnation for his photograph titled Piss
Christ, which depicted a plastic crucifix floating
in a jar of Serrano’s urine. Numerous senators
sent letters of protest to the NEA, insisting that
the agency cease underwriting vulgar art. A second
furor arose in 1989 over the work of
another photographer, Robert Mapplethorpe,
who received NEA support for his work, which
depicted flowers, nude children, and homosexuality
and sadomasochism.

Senator JESSE HELMS (R-N.C.) argued the
most vociferously against the NEA’s choices and
introduced legislation to ban funding of
“obscene or indecent art” (1989 H.R. 2788 [codified
at 20 U.S.C.A. § 953 et seq. (1989)]). The
Helms Amendment, adopted in October 1989,
gave the NEA great power and latitude to define
obscenity and quash alternative artistic visions.
To enforce the new amendment, the NEA established an “obscenity pledge,” which required
artists to promise they would not use government
money to create works of an obscene
nature. The art world strongly resisted this
measure: many museum directors resigned in
protest and several well-known artists returned
their NEA grants.

Two important cases tested the power of the
NEA to censor artistic production. In Bella
Lewitsky Dance Foundation v. Frohnmayer, 754
F. Supp. 774 (C.D. Cal. 1991), a dance company
refused to sign the obscenity pledge and sued on
the ground that the pledge was unconstitutional.
A California district court agreed that the pledge
violated the First Amendment right to free
speech and that its vagueness denied the dance
company DUE PROCESS under the FIFTH
AMENDMENT.

In New School v. Frohnmayer, No. 90-3510
(S.D.N.Y. 1990), the New School for Social
Research, in New York City, turned down a
grant, claiming that the obscenity pledge acted
as PRIOR RESTRAINT and therefore breached the
school’s First Amendment rights. Before the
constitutionality of the prior restraint argument
was decided, the NEA released the school from
its obligation to sign the pledge.
The NEA abolished the obscenity pledge in
November 1990, but in its place instituted a
“decency clause” (1990 Amendments, Pub. L.
No. 101-512, § 103(b), 104 Stat. 1963 [codified
at 20 U.S.C.A. § 954(d)(1990)]), which required
award recipients to ensure that their works met
certain standards of decency. Failure to comply
with this demand could mean suspension of
grant payments.

Again the art world protested. In Finley v.
NEA, 795 F. Supp. 1457 (C.D. Cal. 1992), artists
known as the NEA Four—Karen Finley, John
Fleck, Holly Hughes, and Tim Miller—sued the
NEA over the decency clause. A California district
court agreed with the artists. The Finley
court held that the decency clause, like the
obscenity pledge, was unconstitutional because
its vagueness denied the artists the due process
guaranteed by the Fifth Amendment and
because its too-general restriction suppressed
speech.

Books

U.S. parents send their children to public
schools to receive an education and to learn the
fundamental values on which their democratic
society is based. Conflict ensues when parents
believe that certain schoolbooks contain material
that is objectionable on political, moral, or
religious grounds and should be banned in
order to protect their children from exposure to
allegedly harmful ideas. In some instances
school boards have responded by physically
removing books from school library shelves. In
general, advocates of book banning maintain
that censorship is warranted to redress social ills,
whereas critics believe that freedom of speech is
more important and useful to society than
imposing values through censorship.
Book banning as a way to remedy social
problems was first tested by the Supreme Court
in Board of Education v. Pico, 457 U.S. 853, 102 S.
Ct. 2799, 73 L. Ed. 2d 435 (1982). In Pico, parents
objected to nine books in the high school
library, most of which were subsequently
removed by the school board. The nine books
were Slaughterhouse Five, by Kurt Vonnegut Jr.;
Naked Ape, by Desmond Morris; Down These
Mean Streets, by Piri Thomas; Best Short Stories
of Negro Writers, edited by Langston Hughes;
Laughing Boy, by Oliver LaFarge; Black Boy, by
Richard Wright; A Hero Ain’t Nothin’ But a
Sandwich, by Alice Childress; Soul on Ice, by
ELDRIDGE CLEAVER; and Go Ask Alice, by an
anonymous author.

Pico debated the authority of local school
boards to censor material in the interest of protecting
students. The case reached the Supreme
Court because lower courts were unable to
devise standards for testing the constitutionality
of book removal. The Supreme Court ruled that
it is unconstitutional for public school boards to
abridge students’ First Amendment rights by banning books. Although school boards have
the power to determine which books should sit
on library shelves, they do not have the authority
to censor.

Books published by commercial presses for
sale to the general public sometimes meet with
harsh condemnation and subsequent action that
could be tantamount to censorship. In November
1990, Simon and Schuster canceled its contract
with author Bret E. Ellis to publish his
novel American Psycho, citing the work’s graphic
violence and sexual brutality. The National
Writers Union decried the cancellation as contrary
to free speech and artistic expression and
as censorship. The publishing house defended
its editorial judgment by claiming it did not
want to put its imprint on a book of questionable
taste and value.Vintage Books, a division of
Random House, soon acquired the novel, and
published it in March 1991.

Students’ Speech

Students’ free speech rights sometimes clash
with schools’ interest in maintaining control of
public education. Students’ First Amendment
liberties were affirmed by the landmark TINKER
V. DES MOINES INDEPENDENT COMMUNITY
SCHOOL DISTRICT, 393 U.S. 503, 89 S. Ct. 733, 21
L. Ed. 2d 731 (1969), which ruled that public
school students could not be penalized for wearing
symbols, such as black armbands, to protest
the VIETNAM WAR.

Two subsequent cases dealing with issues of
censorship in school newspapers pointed to a
more restrictive judicial view of students’ right
to free expression. In Hazelwood School District
v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L.
Ed. 2d 592 (1988), the Supreme Court ruled in
favor of a Hazelwood,Missouri, school principal
who removed several articles from a student
newspaper. The articles dealt with teen pregnancy
and a student’s feelings about her parents’
DIVORCE. The court in Hazelwood held that a
school newspaper is not a public forum, and
thus granted school officials the right to determine
what type of student speech is appropriate
and to regulate such speech.
Three years later, the ruling in Planned Parenthood
v. Clark County School District, 941 F.2d
817 (9th Cir. 1991), was based on Hazelwood. In
Planned Parenthood, a public high school newspaper
solicited advertisements from local businesses,
including Planned Parenthood. The
principal refused to allow Planned Parenthood
to place an advertisement in school publications
and Planned Parenthood sued the school
district. The Ninth Circuit Court of Appeals
upheld a district court decision that a public
high school publication is not a public forum
and that the school could therefore accept or
reject advertisements. Both Hazelwood and
Planned Parenthood concluded that because
public high schools are nonpublic forums,
school districts can apply a limited degree of
censorship.

Hundreds of public universities in the
United States have speech codes to regulate students’
choice of words. Speech can be constitutionally
curtailed in some circumstances. For
example, public COLLEGES AND UNIVERSITIES
can forbid threats of violence, prohibit obscene
language and conduct (although it is extremely
difficult to define or prove obscenity), and punish
students for using defamatory speech against
each other, all without violating the First
Amendment. Numerous cases have successfully
contested free speech limitations on campus,
suggesting that a majority of these codes are
unconstitutional.

In Doe v. University of Michigan, 721 F. Supp.
852 (E.D. Mich. 1989), a biopsychology student
maintained that the university’s speech code
prevented him from freely discussing controversial
ideas about biologically based differences
between the sexes and races. A district court
ruled that the university’s code proscribed too
great a range of speech and therefore was an
unconstitutional infringement on the plaintiff ’s
First Amendment rights. The court also held
that the overbroad nature of the code denied his
due process rights.

A University of Wisconsin student was
accused of violating the university’s speech
codes by yelling rude comments at a woman. In
U.W.M. Post, Inc. v. Board of Regents, 774 F.
Supp. 1163 (E.D. Wis. 1991), the university’s
speech code was also struck down as overbroad.
Two years later school officials punished fraternity
brothers at GEORGE MASON University for
dressing in drag and staging an “ugly woman
contest.” In Iota X Chapter v. George Mason University,
993 F.2d 386 (1993), the Fourth Circuit
found that the university had violated the First
Amendment because it did not sanction the fraternity
merely for its conduct, but rather for the
message conveyed by the “ugly woman contest,”
which ran counter to the views the university
sought to foster.

Internet

Computer-mediated communication grows
explosively every year and in some ways outpaces
and obviates current legal principles. The
prevailing concept of law applies to real-world
events and transactions, and, as those in the legal
field are realizing, may unravel when exercised
in cyberspace. As more and more people transmit
widely divergent messages on the electronic
highway, issues of free speech and censorship
become increasingly complicated and regulations
difficult to enforce.

The first case of criminal prosecution of
electronic communication involved the distribution
of pornography over an electronic bulletin
board system (BBS). In United States v.
Thomas, No. CR-94-20019-G (W.D. Tenn.
1994), Robert Thomas and Carleen Thomas
were found guilty of disseminating obscene
materials by interstate telephone lines and computer.
From their home in California, the
Thomases ran an adults-only private BBS from
which subscribers could download computer
graphics files and order sexually explicit photographs
and videotapes while on-line. To gather
evidence against the couple, a Memphis postal
inspector, under an assumed name, downloaded
to his computer many of the pornographic electronic
files and ordered tapes.

The Thomases were charged with, among
other things, transporting obscene materials
across state lines. The couple attempted to transfer
their case to the Northern District of California,
so that their materials would be measured
against that community’s standards of obscenity,
rather than the obscenity standards of the
Western District of Tennessee. The district judge
denied their request, noting that in obscenity
prosecutions the trial can be held either in the
district from which the material was sent or
where it was received.

The “virtual” nature of cyberspace poses a
number of problems for courts and legislatures
on the issue of obscenity. Among the most difficult
of these is the issue of community standards.
Because the INTERNET brings together
people from all over the United States and all
over the world, it defies identification with any
particular community. Other difficulties are the
criminal element of knowledge and the issue of
dissemination. Persons may post and receive
information on Internet bulletin boards without
the knowledge of those who maintain the BBS,
making it difficult to determine whether the
BBS operators “knowingly disseminated”
obscene materials.

In 1996, Congress passed the Communications
Decency Act (CDA), which punished disseminating
“indecent” material over the
Internet. The Supreme Court struck down the
law in Reno v. ACLU, 521 U.S. 844, 117 S.Ct.
2329, 138 L.Ed.2d 874 (1997). Although the
Court recognized the “legitimacy and importance
of the congressional goal of protecting
children from harmful materials,” it ruled that
the CDA abridged freedom of speech and therefore
was unconstitutional. The Court also
noted that its previous decisions limiting free
speech out of concern for the protection of
children were inapplicable in this case, and that
the CDA differed from the laws and orders
upheld in previous cases in significant ways. For
example, the CDA did not allow parents to
consent to their children’s use of restricted
materials; it was not limited to commercial
transactions; it failed to provide a definition of
“indecent”; and its broad prohibitions were not
limited to particular times of the day. Finally,
the act’s restrictions could not be analyzed as a
form of time, place, and manner regulation
because it was a content-based blanket restriction
on speech.

Congress lost little time in responding to this
decision. In 1998, it quickly passed the Child
Online Protection Act (COPA), which would
make it illegal to use the World Wide Web to
communicate “for commercial purposes” any
material considered to be “harmful to minors.”
The law also incorporated the three-part
obscenity test that the Supreme Court formulated
in Miller v. California. The AMERICAN
CIVIL LIBERTIES UNION (ACLU) and a group of
on-line website operators challenged the constitutionality
of COPA, arguing that it was overbroad.
In addition, the plaintiffs contended that
the use of the community standards test would
give any community in the United States the
ability to file civil and criminal lawsuits under
COPA. This meant that the most conservative
community in the country could dictate the
content of the Internet. A federal appeals court
in Philadelphia agreed with these arguments
and the government appealed again to the
Supreme Court.

The Supreme Court, in Ashcroft v. American
Civil Liberties Union, 535 U.S. 564, 122 S.Ct.
1700, 152 L.Ed.2d 771 (2002), produced a decision
that failed to give a clear direction. The use of community standards did not by itself make
the statute overbroad and unconstitutional
under the First Amendment. Apart from that
conclusion, the Court could not agree, with five
of the justices producing separate opinions. A
majority, however, had reservations about the
COPA. A number of the justices expressed concern
that without a national standard it would
be difficult for operators of Internet services to
know when they had crossed a line and had subjected
themselves to liability. The case was
remanded to the lower courts for a full examination
of the law on all issues. The fate of COPA
is likely to be decided by the Court in a future
decision.

As the popularity of the Internet continues
to grow, more issues involving censorship are
likely to appear. And with the advancement of
high-speed Internet access, movies, videos, text,
and pictures can now be downloaded with
greater ease, creating even more opportunities
for legal debate.

CENSORSHIP

CENSORSHIP

CENSORSHIP

Posted on October 23, 2010 by admin

CENSORSHIP

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