The Encyclopedia of Libertarianism

Censorship

Censorship is the coercive silencing of dissenting views by political authorities generally in order to protect an official orthodoxy or to prevent the spread of ideas not authorized by the powers that be. As Alberto Manguel writes in A History of Reading, censorship “is the corollary of all power, and the history of reading is lit by a seemingly endless line of censors’ bonfires.” Censorship has been and remains a common feature of oppressive regimes. John Milton, whose Areopagitica (written in protest of the censorship of his writings on divorce) remains the most eloquent defense of the free press written in English, provided a history of censorship from 411 B.C., when the works of Protagoras were burned in Athens on the grounds that they taught agnosticism. In the Republic, Plato advocates censorship of poetry and music that fail to promote the state’s interests. This tradition has continued in modern times. Beginning in 1933, Josef Goebbels oversaw mass book burnings, which became a trademark of the Nazi regime. In the Soviet Union, an agency called Glavlit oversaw all printed publications, including even food labels, to prevent the dissemination of unacceptable material. Today, officials in China, Saudi Arabia, Pakistan, and other countries have implemented censorship of books, periodicals, television, radio, and the Internet to ensure that political dissent, religious heterodoxy, or sexually provocative material are not disseminated to the general public.

The introduction of the printing press and the Protestant injunction for believers to read the Bible for themselves made censorship an increasingly important subject of debate in Reformation Europe. In 1559, the Catholic Church issued the first Index Liborum Prohibitorum, which lists books forbidden as dangerous to the faith; the Index was not eliminated until 1966. Protestant nations were no less censorious. Henry VIII ordered the burning of Reformation books prior to his own break with Rome, including English translations of the New Testament, and established the licensing requirement for publishing that Milton would protest a century later in Areopagitica.

In the ensuing decades, the English common law gradually developed a principle of free expression that barred the government from engaging in “prior restraint” (i.e., the forcible prevention of publication). But no rule protected authors from punishment after publication. Thus, although William Blackstone explained in his Commentaries that the prohibition on prior restraints was of the essence to English liberty, there was no “freedom from censure for criminal matter when published.” Dissidents could print their views, but the threat of prosecution for “seditious libel” and other political crimes helped temper criticism of the government. In America, however, the famous 1735 acquittal of John Peter Zenger largely eliminated seditious libel as a threat to colonial printers. Prosecutions for the publication of indecent material did continue, however. The first book to be banned in the United States was John Cleland’s pornographic novel, Fanny Hill, or Memoirs of a Woman of Pleasure, which was prohibited in Boston in 1821 and, when republished in 1964, was again banned, leading to an important Supreme Court decision defining obscenity.

Because the common law defined freedom of the press by the absence of prior restraints, the 1st Amendment to the U.S. Constitution, which protects the freedoms of press and speech, has been interpreted as an almost absolute prohibition on prior restraints. Some have argued that the 1st Amendment goes no further, whereas others contend that it goes further than common law and prohibits certain forms of post-publication punishment or other government actions intended to limit the dissemination of information. American courts have identified three broad categories of censorship other than prior restraint: (1) the punishment of those who produce material—such as obscenity or extraordinarily intimidating threats—which is determined not to qualify as “speech” or “press” as the terms were understood by the authors of the 1st Amendment, (2) the use of libel and slander to punish those who utter falsehoods or unflattering comments, and (3) the removal of books from public libraries.

It is widely conceded that certain material is so obscene that it contains no ideas or expression worthy of constitutional protection. However, defining the word obscene has proven extremely difficult for courts because too broad a definition might well threaten the dissemination of provocative, but serious, material. In 1973, the Supreme Court defined obscenity as material that, taken as a whole, appeals to the prurient interest in sex, that portrays sex in a patently offensive way, and that lacks serious literary, artistic, political, or scientific value. This definition has proved difficult to apply, and in recent decades, governments in the United States have largely given up the efforts to ban pornography. Worse, it can be dangerous to declare that certain forms of expression are not protected forms of speech. Prohibitions of “hate speech,” or of expressive actions thought to be extraordinarily offensive, such as flag-burning, are similar in that they can often be justified on the grounds that such forms of expression communicate sentiments that are unworthy of legal protection. The dangers of such a rationale are evident in the area of sexual harassment laws, which in recent years have been expanded so as to intimidate some speakers or to prohibit some forms of expression that, whatever their merit, are clearly communicative and not obscene or threatening. In addition, this effort to define certain categories of expression as outside constitutional protections has spawned legal theories which seek to define certain categories of speech as deserving “lesser” constitutional protection. This regime of diminished protection prevails in the realm of commercial speech, defined to be speech that proposes a commercial transaction. Although the Constitution provides no warrant for such discrimination, the Supreme Court has found that commercial expression can be extensively regulated because it is not considered part of the political or cultural dialogue thought essential to democratic decision making. Likewise, campaign finance regulations, although often restricting the rights of individuals to express their political preferences, are frequently defended on the grounds that limiting the expressive opportunities of wealthy groups fosters broader democratic debate.

Libel and slander laws have regularly been abused to stifle criticism of political authorities, but in the United States these efforts were severely curtailed by the 1964 Supreme Court decision New York Times v. Sullivan, which held that “public figures,” such as government officials or those who choose to partake in matters of public concern, can only rarely prevail in libel cases. Even publication of obviously false and obscene material about a public figure has been held protected by the 1st Amendment, as when pornographer Larry Flynt successfully defended his right to publish a counterfeit interview suggesting that minister Jerry Falwell had lost his virginity to his mother in an outhouse. Although public figures can virtually never succeed when suing media for such libel in the United States, European countries, particularly England, do not prohibit such suits. As a result, criticism of political figures in England is still often hampered. Worse, because publications produced in the United States are easily available in England, public figures who have been criticized have brought suit against American writers in English courts and recovered, although these suits would be constitutionally barred under American law. This “libel tourism” has become a matter of increasing concern in the age of the Internet.

One common source of debate over freedom of expression in the United States involves the removal of controversial books from public libraries and libraries in public schools. Although not strictly a form of censorship—because the publications remain legal and available elsewhere— such attempts to prevent reading are common and are monitored by the American Library Association’s Office of Intellectual Freedom. The U.S. Supreme Court has never ruled that such removals are prohibited by the 1st Amendment, but in Board of Education v. Pico, a plurality of justices held that while school boards have broad discretion to choose what books are appropriate for curriculum or classroom use, and to choose what books may be placed in a library, they may not remove books that are already in the library on the basis of the ideas contained in those books or in an attempt to prescribe orthodox opinions.

 

Further Readings

Beauchamp, Raymond W. “England’s Chilling Forecast: The Case for Granting Declaratory Relief to Prevent English Defamation Actions from Chilling American Speech.” Fordham Law Review 74 (2006): 3073–3145.

Bernstein, David E. You Can’t Say That!: The Growing Threat to Civil Liberties from Antidiscrimination Laws. Washington, DC: Cato Institute, 2003.

Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853 (1982).

A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts, 383 U.S. 413 (1966).

Hustler Magazine v. Falwell, 485 U.S. 46 (1988).

Klosko, George. The Development of Plato’s Political Theory. New York: Methuen, 1986.

Manguel, Alberto. A History of Reading. New York: Penguin, 1996.

Miller v. California, 413 U.S. 15 (1973).

Nelson, Harold L. “Seditious Libel in Colonial America.” American Journal of Legal History 3 (1959): 160 172.

New York Times Co. v. United States, 403 U.S. 713 (1971).

Originally published .