Censorship

Basic Concepts

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 [Page 270]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.

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