Censorship in the United States

In general, censorship in the United States, which involves the suppression of speech or other public communication, raises issues of freedom of speech, which is constitutionally protected by the First Amendment to the United States Constitution.

This freedom, though fundamental, has also been accompanied since its enshrinement with contest and controversy. For instance, restraints increased during periods of widespread anti-communist sentiment, as exemplified by the hearings of the House Committee on Un-American Activities. It is also legal to express certain forms of hate speech so long as one does not engage in the acts being discussed, or urge others to commit illegal acts. However, more severe forms have led to people or groups such as the Ku Klux Klan being denied certain marching permits or the Westboro Baptist Church being sued, though the initially adverse ruling against the latter was later overturned on appeal in the US Supreme Court. Some recent laws have restricted forms of hate speech, however.

The First Amendment protects against censorship imposed by laws, but does not give protection against corporate censorship, the sanctioning of speech by spokespersons, employees, and business associates by threat of monetary loss, loss of employment, or loss of access to the marketplace. Legal expenses can sometimes be a significant unseen restraint where there may be fear of suit for libel. Many people in the United States are in favor of restrictions of corporate censorship, citing a slippery slope that if corporations do not follow the Bill of Rights the government will be influenced.

Analysts from Reporters Without Borders rank the United States 46th in the world in terms in their Press Freedom Index, updated for 2014. Certain forms of speech, such as obscenity and defamation, are restricted in major media outlets by the government or by the industry on its own.

Governor of Florida Rick Scott controversially suggested removing words ‘climate change’ from study on climate change and was criticised for global warming denial.

History

A celebrated legal case in 1734-1735 involved John Peter Zenger, a New York newspaper printer who regularly published material critical of corrupt then-Governor of New York, William Cosby. He was jailed eight months before being tried for seditious libel. Andrew Hamilton defended him and was made famous for his speech, ending in, "...nature and the laws of our country have given us a right to liberty of both exposing and opposing arbitrary power [...] by speaking and writing truth." While the judge ruled against his arguments, Hamilton invoked the concept of jury nullification in the cause of liberty and won a not guilty verdict. The Zenger case paved the way for freedom of the press in the United States to be adopted in the constitution; as Founding Father Gouverneur Morris stated, "The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America."

Sedition

There have been a number of attempts in the United States to forbid speech that has been deemed "seditious". In 1798, President John Adams signed into law the Alien and Sedition Acts, the fourth of which, the Sedition Act or "An Act for the Punishment of Certain Crimes against the United States" set out punishments of up to two years' imprisonment for "opposing or resisting any law of the United States" or writing or publishing "false, scandalous, and malicious writing" about the President or Congress (but specifically not the Vice-President). The act was allowed to expire in 1801 after the election of Thomas Jefferson, Vice President at the time of the Act's passage.

The Sedition Act of 1918, an extension of the Espionage Act of 1917 which had passed in connection with the United States joining the Allied Powers in the First World War, was a controversial law that led to imprisonment of many prominent individuals for opposing the war or the draft. State laws prohibiting "sedition" were also passed and used to prosecute and persecute alleged "seditionists" during this period, including many people guilty only of being "Wobblies", or members of the Industrial Workers of the World. In Schenck v. United States, the Supreme Court upheld the Espionage Act and banned speaking against the draft during World War I. This case led to the "clear and present danger" test. In 1969, Brandenburg v. Ohio established the "imminent lawless action" test. State sedition acts, if in place, are likely unconstitutional under the Brandenburg doctrine of "imminent lawless action" or the older doctrine of "clear and present danger."

Anti-abolitionist censorship

Beginning in the 1830s and until the American Civil War, the US Postmaster General refused to allow the mails to carry abolitionist pamphlets to the South.

Local censorship

Until Gitlow v. New York in the early 20th century, the First Amendment was not held to apply to states and municipalities. Entities without any prohibition in their own charters were free to censor newspapers, magazines, books, plays, movies, comedy shows, and so on, as exemplified by the phrase "banned in Boston."

In New York, litigation on a local ban upon the book Ulysses by James Joyce in 1933 played a pivotal role in an eventual set of rules determining what is and is not obscene. The standard of the effect upon "l'homme moyen sensuel" (the reasonable person), when reading or viewing of material, became the standard to look towards. The ruling instructed the Court to not consider the impression of the "little old lady" or most "pious member of the community" rather to the general community as a whole. The book's publisher, despite only receiving a ruling in New York, took the risk of publishing the book nationally despite local bans still being in place. The publisher reasoned the ruling in New York would be seen by local efforts to ban books as protection.

The free speech decisions of the United States Supreme Court under Chief Justice Earl Warren, which served from 1953 to 1969, extended the protections of the First Amendment to local government, and brought much stricter standards of review for what government actions were acceptable.

The state of Maryland retained its movie ratings board an unusually long time, abandoning it in the 1980s in favor of the private MPAA's voluntary ratings scheme.

Near v. Minnesota and prior restraint

The 1931 Near v. Minnesota case was the first to establish the doctrine that prior restraint was in most cases unconstitutional. Prior restraint is censorship which prevents material from being published in the first place. The alternative form of censorship occurs as punishment for unlawful or harmful material already published, usually after having the opportunity to dispute the charge in court.

Further information: Prior restraint

Smith Act

Main article: Smith Act

The Alien Registration Act or Smith Act (18 U.S.C. § 2385) of 1940 is a United States federal statute that made it a criminal offense for anyone to

"knowingly or willfully advocate, abet, advise or teach the duty, necessity, desirability or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association."

It also required all non-citizen adult residents to register with the government; within four months, 4,741,971 aliens had registered under the Act's provisions.

The Act is best known for its use against political organizations and figures, mostly on the left. From 1941 to 1957, hundreds of socialists were prosecuted under the Smith Act. The first trial, in 1941, focused on Trotskyists, the second trial in 1944 prosecuted alleged fascists and, beginning in 1949, leaders and members of the Communist Party USA were targeted. Prosecutions continued until a series of Supreme Court decisions in 1957 threw out numerous convictions under the Smith Act as unconstitutional. The statute itself, often amended, has not been repealed.

Wartime censorship

During World War I, and to a greater extent during World War II, war correspondents accompanied military forces, and their reports were subject to advance censorship to preserve military secrets. The extent of such censorship was not generally challenged, and no major court case arose from this issue, and even the Supreme Court found it constitutional on the grounds that it "protected free speech from tyranny".

WPA poster, 1943

The Office of Censorship, an emergency wartime agency, heavily censored reporting during World War II. On December 19, 1941 President Franklin Roosevelt signed Executive Order 8985, which established the Office of Censorship and conferred on its director the power to censor international communications in "his absolute discretion." Byron Price was selected as the Director of Censorship. However, censorship was not limited to reporting; postal censorship also took place. "Every letter that crossed international or U.S. territorial borders from December 1941 to August 1945 was subject to being opened and scoured for details."

In later conflicts the degree to which war reporting was subject to censorship varied, and in some cases it has been alleged that the censorship was as much political as military in purpose. This was particularly true during the Vietnam War and the invasion of Grenada. The executive branch of the federal government attempted to prevent the New York Times from publishing the top-secret Pentagon Papers during the Vietnam War, warning that doing so would be considered an act of treason under the Espionage Act of 1917. The newspaper prevailed in the famous New York Times Co. v. United States case.

In 1991, during the Gulf War under the presidency of George H. W. Bush, The Pentagon placed restrictions on media coverage of the ground war to protect confidential military information.

Such issues arose again during the 2003 Invasion of Iraq, when many embedded reporters accompanied soldiers as they made their way into the country. These reports were subject to censorship in that they were not allowed to reveal a unit's exact location.

Wartime censorship often involves forms of mass surveillance. For international communications, like those done by Western Union and ITT, this mass surveillance continued after the wars were over. The Black Chamber received the information after WWI. After WWII NSA's Project SHAMROCK performed a similar function.

Journalism in warzones

Main article: Embedded journalism

Reporters are often obliged to "embed" themselves with a squad or unit of soldiers before being granted official access to fields of battle. Reporters are limited in what they may report by means of contracts, punishment or forced relocation, and the inherent nature of being tied to and reliant upon a military unit for protection and presence.

Wilhelm Reich

Main article: Wilhelm Reich § Book burning

Wilhelm Reich was an Austrian psychoanalyst. He moved to New York in 1939, in part to escape the Nazis, and shortly after arriving there coined the term "orgone" – derived from "orgasm" and "organism" – for a cosmic energy he said he had discovered, which he said others referred to as God. In 1940 he started building orgone accumulators, devices that his patients sat inside to harness the reputed health benefits, leading to newspaper stories about sex boxes that cured cancer.

Following two critical articles about him in The New Republic and Harper's, the U.S. Food and Drug Administration obtained an injunction against the interstate shipment of orgone accumulators and associated literature, believing they were dealing with a "fraud of the first magnitude." Charged with contempt in 1956 for having violated the injunction, Reich was sentenced to two years in prison, and that summer over six tons of his publications were burned by order of the court. He died in jail of heart failure just over a year later, days before he was due to apply for parole.

Second Red Scare

See also: Smith Act trials of communist party leaders

McCarthyism is the term describing a period of intense anti-Communist suspicion in the United States that lasted roughly from the late 1940s to the late 1950s.

The Alien Registration Act or Smith Act of 1940 made it a criminal offense for anyone to "knowingly or willfully advocate, abet, advise or teach the […] desirability or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association." Hundreds of Communists were prosecuted under this law between 1941 and 1957. Eleven leaders of the Communist Party were charged and convicted under the Smith Act in 1949. Ten defendants were given sentences of five years and the eleventh was sentenced to three years. All of the defense attorneys were cited for contempt of court and were also given prison sentences. In 1951, twenty-three other leaders of the party were indicted including Elizabeth Gurley Flynn, a founding member of the American Civil Liberties Union, who was removed from the board of the ACLU in 1940 for membership in a totalitarian political party. By 1957 over 140 leaders and members of the Communist Party had been charged under the law.

In 1952, the Immigration and Nationality, or McCarran-Walter, Act was passed. This law allowed the government to deport immigrants or naturalized citizens engaged in subversive activities and also to bar suspected subversives from entering the country.

The Communist Control Act of 1954 was passed with overwhelming support in both houses of Congress after very little debate. Jointly drafted by Republican John Marshall Butler and Democrat Hubert Humphrey, the law was an extension of the Internal Security Act of 1950, and sought to outlaw the Communist Party by declaring that the party, as well as "Communist-Infiltrated Organizations" were "not entitled to any of the rights, privileges, and immunities attendant upon legal bodies."

Film censorship

See also: Production Code and Motion Picture Association of America film rating system

The first act of movie censorship in the United States was an 1897 statute of the State of Maine that prohibited the exhibition of prizefight films. Maine enacted the statute to prevent the exhibition of the 1897 heavyweight championship between James J. Corbett and Robert Fitzsimmons. Some other states followed Maine.

In 1915, the US Supreme Court decided the case Mutual Film Corporation v. Industrial Commission of Ohio in which the court determined that motion pictures were purely commerce and not an art, and thus not covered by the First Amendment. This decision was not overturned until the Supreme Court case, Joseph Burstyn, Inc. v. Wilson in 1952. Popularly referred to as the "Miracle Decision", the ruling involved the short film "The Miracle", part of Roberto Rossellini's anthology film L'Amore (1948).

Between the Mutual Film and the Joseph Burstyn decisions local, state, and city censorship boards had the power to edit or ban films. City and state censorship ordinances are nearly as old as the movies themselves, and such ordinances banning the public exhibition of "immoral" films proliferated.

Public outcry over perceived immorality in Hollywood and the movies, as well as the growing number of city and state censorship boards, led the movie studios to fear that federal regulations were not far off; so they created, in 1922, the Motion Pictures Producers and Distributors Association (which became the Motion Picture Association of America in 1945), an industry trade and lobby organization. The association was headed by Will H. Hays, a well-connected Republican lawyer who had previously been United States Postmaster General; and he derailed attempts to institute federal censorship over the movies.

In 1927 Hays compiled a list of subjects, culled from his experience with the various US censorship boards, which he felt Hollywood studios would be wise to avoid. He called this list "the formula" but it was popularly known as the "don'ts and be carefuls" list. In 1930, Hays created the Studio Relations Committee (SRC) to implement his censorship code, but the SRC lacked any real enforcement capability.

The advent of talking pictures in 1927 led to a perceived need for further enforcement. Martin Quigley, the publisher of a Chicago-based motion picture trade newspaper, began lobbying for a more extensive code that not only listed material that was inappropriate for the movies, but also contained a moral system that the movies could help to promote - specifically a system based on Catholic theology. He recruited Father Daniel Lord, a Jesuit priest and instructor at the Catholic St. Louis University, to write such a code and on March 31, 1930 the board of directors of the Motion Picture Producers and Distributors Association adopted it formally. This original version especially was once popularly known as the Hays Code, but it and its later revisions are now commonly called the Production Code.

However, Depression economics and changing social mores resulted in the studios producing racier fare that the Code, lacking an aggressive enforcement body, was unable to redress. This era is known as Pre-Code Hollywood.

An amendment to the Code, adopted on June 13, 1934, established the Production Code Administration (PCA), and required all films released on or after July 1, 1934 to obtain a certificate of approval before being released. For more than thirty years following, virtually all motion pictures produced in the United States and released by major studios adhered to the code. [1] The Production Code was not created or enforced by federal, state, or city government. In fact, the Hollywood studios adopted the code in large part in the hopes of avoiding government censorship, preferring self-regulation to government regulation.

The enforcement of the Production Code led to the dissolution of many local censorship boards. Meanwhile, the US Customs Department prohibited the importation of the Czech film Ecstasy (1933), starring an actress soon to be known as Hedy Lamarr, an action which was upheld on appeal.

In 1934, Joseph I. Breen (1888–1965) was appointed head of the new Production Code Administration (PCA). Under Breen's leadership of the PCA, which lasted until his retirement in 1954, enforcement of the Production Code became rigid and notorious. Breen's power to change scripts and scenes angered many writers, directors, and Hollywood moguls. The PCA had two offices, one in Hollywood, and the other in New York City. Films approved by the New York PCA office were issued certificate numbers that began with a zero.

The first major instance of censorship under the Production Code involved the 1934 film Tarzan and His Mate, in which brief nude scenes involving a body double for actress Maureen O'Sullivan were edited out of the master negative of the film. Another famous case of enforcement involved the 1943 western The Outlaw, produced by Howard Hughes. The Outlaw was denied a certificate of approval and kept out of theaters for years because the film's advertising focused particular attention on Jane Russell's breasts. Hughes eventually persuaded Breen that the breasts did not violate the code and the film could be shown.

Some films produced outside the mainstream studio system during this time did flout the conventions of the code, such as Child Bride (1938), which featured a nude scene involving 12-year-old actress Shirley Mills. Even cartoon sex symbol Betty Boop had to change from being a flapper, and began to wear an old-fashioned housewife skirt.

In 1952, in the case of Joseph Burstyn, Inc. v. Wilson, the U.S. Supreme Court unanimously overruled its 1915 decision and held that motion pictures were entitled to First Amendment protection, so that the New York State Board of Regents could not ban "The Miracle", a short film that was one half of L'Amore (1948), an anthology film directed by Roberto Rossellini. Film distributor Joseph Burstyn released the film in the U.S. in 1950, and the case became known as the "Miracle Decision" due to its connection to Rossellini's film. That in turn reduced the threat of government regulation that justified the Production Code, and the PCA's powers over the Hollywood industry were greatly reduced.

At the forefront of challenges to the code was director Otto Preminger, whose films violated the code repeatedly in the 1950s. His 1953 film The Moon is Blue, about a young woman who tries to play two suitors off against each other by claiming that she plans to keep her virginity until marriage, was the first film to use the words "virgin," "seduce," and "mistress," and it was released without a certificate of approval. He later made The Man with the Golden Arm (1955), which portrayed the prohibited subject of drug abuse, and Anatomy of a Murder (1959) which dealt with rape. Preminger's films were direct assaults on the authority of the Production Code and, since they were successful, hastened its abandonment.

In 1954, Joseph Breen retired and Geoffrey Shurlock was appointed as his successor. Variety noted "a decided tendency towards a broader, more casual approach" in the enforcement of the code.

Billy Wilder's Some Like It Hot (1959) and Alfred Hitchcock's Psycho (1960) were also released without a certificate of approval due to their themes and became box office hits, and as a result further weakened the authority of the code.

President Barack Obama said on December 19, 2014 that Sony “made a mistake” in pulling its film The Interview from distribution following a cyber-attack that American officials may have linked to North Korea. “We cannot have a society where some dictator someplace can start imposing censorship here in the United States,” Obama said. The film has since been released in limited distribution at select theaters.

The Pawnbroker and the end of the Code

In the early 1960s, British films such as Victim (1961), A Taste of Honey (1961), and The Leather Boys (1963) offered a daring social commentary about gender roles and homophobia that violated the Hollywood Production Code, yet the films were still released in America. The American gay rights, civil rights, and youth movements prompted a reevaluation of the depiction of themes of race, class, gender, and sexuality that had been restricted by the Code.

In 1964 The Pawnbroker, directed by Sidney Lumet and starring Rod Steiger, was initially rejected because of two scenes in which the actresses Linda Geiser and Thelma Oliver fully expose their breasts; and a sex scene between Oliver and Jaime Sánchez, which it described as "unacceptably sex suggestive and lustful." Despite the rejection, the film's producers arranged for Allied Artists to release the film without the Production Code seal and the New York censors licensed The Pawnbroker without the cuts demanded by Code administrators. The producers also appealed the rejection to the Motion Picture Association of America.

On a 6-3 vote, the MPAA granted the film an "exception" conditional on "reduction in the length of the scenes which the Production Code Administration found unapprovable." The exception to the code was granted as a "special and unique case," and was described by The New York Times at the time as "an unprecedented move that will not, however, set a precedent." The requested reductions of nudity were minimal, and the outcome was viewed in the media as a victory for the film's producers. The Pawnbroker was the first film featuring bare breasts to receive Production Code approval. In his 2008 study of films during that era, Pictures at a Revolution, author Mark Harris wrote that the MPAA's action was "the first of a series of injuries to the Production Code that would prove fatal within three years."

When Jack Valenti became President of the MPAA in 1966, he was immediately faced with a problem regarding language in the film version of Edward Albee's play Who's Afraid of Virginia Woolf? (1966). Valenti negotiated a compromise: The word "screw" was removed, but other language, including the phrase "hump the hostess", remained. The film received Production Code approval despite having language that was clearly prohibited. The British-produced, but American-financed film Blowup (1966) presented a different problem. After the film was denied Production Code approval, MGM released it anyway, the first instance of an MPAA member company distributing a film that didn't have an approval certificate. There was little the MPAA could do about it.

Enforcement had become impossible, and the Production Code was abandoned entirely.

Weapons proliferation

On March 15, 1950, Scientific American published an article by Hans Bethe about thermonuclear fusion, but the United States Atomic Energy Commission successfully ordered printed copies of the magazine destroyed, and a redacted version was published. The censorship was not disputed by Bethe.

Under the Invention Secrecy Act of 1951 and the Atomic Energy Act of 1956, patents may be withheld and kept secret on grounds of national security.

In 1979, the magazine The Progressive was sued by the U.S. government (United States v. The Progressive) and temporarily blocked from publishing an article that purported to reveal the "secret" of the hydrogen bomb. The article was eventually published after Fusion magazine, published by the Fusion Energy Foundation, published similar information and the government dropped the charges.

In 1997, Congress voted unanimously to add an amendment to a Department of Defense spending bill (known as the Feinstien amendment) forbidding the distribution of instructions that teach "the making or use of an explosive, a destructive device, or a weapon of mass destruction" if those instructions are intended to assist in the actual building and use of such a device.

Further information: Prior restraint

Political censorship

In 1987, an article appeared in The Scientist which alleged that the U.S. government improperly suppressed two science magazines put out by the Fusion Energy Foundation. The article quotes scientists Winston Bostick, who said that "the Department of Justice wants to crush the magazines before they publish information which could send quite a few officials of the department to jail," and former Department of Energy official Stephen Dean, who said that the government's actions were "a gross abuse of the legal system—a violation of due process."

Export of sensitive software

The export of cryptography software is regulated as a munition under the International Traffic in Arms Regulations, although in recent years the regulations have relaxed, due in part to industry lobbying.

In 1995, Daniel J. Bernstein challenged the regulations (see Bernstein v. United States) on First Amendment grounds. The Ninth Circuit Court of Appeals ruled that software source code was speech protected by the First Amendment and that the government's regulations preventing its publication were unconstitutional. However, some regulations remain.

Further information: export of cryptography

Broadcast censorship

The Federal Communications Commission (FCC) regulates "indecent" free-to-air broadcasting (both television and radio). Satellite, cable television, and Internet outlets are not subject to content-based FCC regulation. It can issue fines if, for example, the broadcaster employs certain profane words. The Supreme Court in 1978 in FCC v. Pacifica Foundation upheld the commission’s determination that George Carlin's classic “seven dirty words” monologue, with its deliberate, repetitive and creative use of vulgarities, was indecent. But the court at that time left open the question of whether the use of “an occasional expletive” could be punished. Radio personality Howard Stern has been a frequent target of fines. This led to his leaving broadcast radio and signing on with Sirius Satellite Radio in 2006. The Super Bowl XXXVIII halftime show controversy increased the political pressure on the FCC to vigorously police the airwaves. In addition, Congress increased the maximum fine the FCC may levy from US $268,500 to US $375,000 per incident.

The Supreme Court, in its 5-4 decision in FCC v. Fox Television Stations, Inc. (2009), said it did not find the FCC's policy on so-called fleeting expletives either "arbitrary or capricious", thus dealing a blow to the networks in their efforts to scuttle the policy. But the case brought by Fox to the high court was a narrow challenge on procedural grounds to the manner in which the FCC handled its decision to toughen up its policy on fleeting expletives. Fox, with the support of ABC, CBS and NBC, argued that the commission did not give enough notice of nor properly explain the reasons for clamping down on fleeting expletives after declining to issue penalties for them in decades past. The issue first arose in 2004, when the FCC sanctioned, but did not fine, NBC for Bono's use of the phrase "fucking brilliant" during the Golden Globes telecast. The present case arose from two appearances by celebrities on the Billboard Music Awards. The first involved Cher, who reflected on her career in accepting an award in 2002: “I’ve also had critics for the last forty years saying I was on my way out every year. Right. So fuck 'em.” The second passage came in an exchange between Paris Hilton and Nicole Richie in 2003 in which Ms. Richie discussed the difficulties involved in removing cow feces from a Prada purse with the quotation "Have you ever tried cleaning cow shit off a Prada purse? It's not so fucking simple." The majority decision, written by Justice Antonin Scalia, reversed the lower appellate court's decision that the FCC's move was "arbitrary and capricious." “The commission could reasonably conclude” he wrote “that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children.” Justice Ruth Bader Ginsburg, dissenting, wrote that “there is no way to hide the long shadow the First Amendment casts over what the commission has done. Today’s decision does nothing to diminish that shadow.” Justice John Paul Stevens, dissenting, wrote that not every use of a swear word connoted the same thing: “As any golfer who has watched his partner shank a short approach knows,” Justice Stevens wrote, “it would be absurd to accept the suggestion that the resultant four-letter word uttered on the golf course describes sex or excrement and is therefore indecent... It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they are battling erectile dysfunction or are having trouble going to the bathroom... The FCC’s shifting and impermissibly vague indecency policy only imperils these broadcasters and muddles the regulatory landscape.” For 30 years, the FCC has had the power to keep “indecent” material off the airwaves from 6 a.m. to 10 p.m., and those rules “have not proved unworkable” Stevens added. Justice Breyer, dissenting, wrote that the law “grants those in charge of independent administrative agencies broad authority to determine relevant policy,” he observed. “But it does not permit them to make policy choices for purely political reasons nor to rest them primarily upon unexplained policy preferences.” Scalia’s majority opinion was joined by Chief Justice John G. Roberts and Justices Thomas and Samuel A. Alito Jr. and (for the most part) by Justice Anthony M. Kennedy. Justices Stevens, Ginsburg, Souter, and Breyer dissented. Four justices wrote concurrences or dissents speaking only for themselves.

But the decision was limited to a narrow procedural issue and also sent the case back to the 2nd Court of Appeals in New York to directly address the constitutionality of the FCC's policy. The 2nd Court of Appeals is already on record in its 2007 ruling that it was "skeptical" that the policy could "pass constitutional muster." Scalia said that the looming First Amendment question “will be determined soon enough, perhaps in this very case.” The decision provided hints that the court might approach the constitutional question differently. Some dissenting justices and Justice Clarence Thomas, who was in the majority, indicated that they might be receptive to a First Amendment challenge. Thomas, in a concurrence, said he was “open to reconsideration” of the two cases that gave television broadcasters far less First Amendment protection than books, newspapers, cable programs and Web sites have.

The FCC is also responsible for permitting transmitters, to prevent interference between stations from obscuring each other's signals. Denial of the right to transmit could be considered censorship. Restrictions on low-power broadcasting stations have been particularly controversial, and the subject of legislation in the 1990s and 2000s (decade).

The Guardian reported U.S. censorship of U.S. media regarding a CIA employee implicated in murder in that "A number of US media outlets learned about Davis's CIA role but have kept it under wraps at the request of the Obama administration." Colorado station KUSA censored an online report indicating Davis worked for the CIA when the station "removed the CIA reference from its website at the request of the US government."

Censorship of pornography

Further information: Pornography in the United States

U.S. courts have ruled that the First Amendment protects "indecent" pornography from regulation, but not "obscene" pornography. People convicted of distributing obscene pornography face long prison terms and asset forfeiture. However, in State v. Henry (1987), the Oregon Supreme Court ruled that obscenity was an unconstitutional restriction of free speech under the free speech provision of the Oregon Constitution and abolished the offense of obscenity in that state, although it remains an offense on the federal level.

In 1996, the Congress passed the Communications Decency Act, with the aim of restricting Internet pornography. However, court rulings later struck down many provisions of the law.

A widely publicized case of prosecuting alleged obscenity occurred in 1990, when the Cincinnati arts center agreed to hold an art show featuring the work of photographer Robert Mapplethorpe. His work included several artistic nude photographs of males and was deemed offensive by some people for this reason. This resulted in the prosecution of the center and its director, who were later acquitted.

In the early 1990s, Mike Diana became the first American artist to receive a conviction for obscenity for drawing cartoons that were judged legally obscene.

Child pornography is illegal in the United States. The U.S. Supreme Court has held that it is not protected by the First Amendment. And even if not obscene, it is not considered protected speech, according to New York v. Ferber.

Ban on material support for foreign boycotts

A law passed by the U.S. Congress in 1977 prohibits all U.S. persons, defined to include individuals and companies located in the United States and their foreign affiliates, from supporting the boycott of Israel and provides penalties for those who willingly comply with the boycott. The B.I.S. website states:

Conduct that may be penalized under the TRA and/or prohibited under the EAR includes:

• Agreements to refuse or actual refusal to do business with or in Israel or with blacklisted companies.
• Agreements to discriminate or actual discrimination against other persons based on race, religion, sex, national origin or nationality.
• Agreements to furnish or actual furnishing of information about business relationships with or in Israel or with blacklisted companies.
• Agreements to furnish or actual furnishing of information about the race, religion, sex, or national origin of another person.

Implementing letters of credit containing prohibited boycott terms or conditions.

The TRA does not "prohibit" conduct, but denies tax benefits ("penalizes") for certain types of boycott-related agreements.

On this basis, some American businesses have been punished for answering their customers' question about origin of their products.

Some pro-Israeli activists have construed the law as forbidding speech and expression that supports any boycott of Israel (as opposed to actions taken to comply with the requests of foreign entities to boycott Israel) whether foreign in origin or domestic, and asked the US Anti-Boycott Office to prosecute divestment campaigners against Israel.

However, the law only forbids material participation in or material support of a boycott originated by a foreign nation or organization, not with a domestic boycott campaign, nor can the law be construed as forbidding speech that politically or morally (as opposed to materially) supports any boycott, whether foreign, or domestic. The law only prevents US organizations from being used by alien entities as agents of their foreign policy, when that foreign policy includes the pursuit of boycotting arrangements; it does not prevent US organizations or individuals from choosing how to spend or invest their money based on business or ethical considerations; it only forbids doing so as the result of a foreign entity's request. Material attempts to suppress speech through induction of state action under false pretenses, such as by claiming a domestic boycott campaign is foreign in origin may be unlawful, and may constitute conspiracy against civil rights, a federal crime, punishable by fine and imprisonment. (Such speech is considered to be core political speech under the US Constitution, and any state actions interfering with core political speech are subject to the strictest Constitutional scrutiny.)

Libel

Libel and slander are generally considered civil wrongs which can constitute the basis of a private lawsuit. Although some states still carry criminal libel laws on the books, these are very infrequently used.

Since the 1964 decision in New York Times Co. v. Sullivan, public figures like entertainers and politicians must prove actual malice was intended as opposed to simple negligence to win a libel or slander suit. For instance, public officials cannot file a lawsuit if someone makes a caricature of them or insults them.

Although it is difficult to win a libel case in the United States, it can still be an effective means of intimidation and deterrence, since defending oneself against a lawsuit is expensive and time consuming.

Persons engaged in legislative debate in Congress are granted complete immunity from libel and slander suits so long as they are speaking from the floor of the Senate or House of Representatives.

Further information: Strategic lawsuit against public participation

Judicial orders

Individual judges have the power to order parties in their jurisdictions not to disclose certain information. A gag order might be issued to prevent someone from disclosing information that would interfere with an ongoing court case. Though court documents are generally public information, record sealing is sometimes used to prevent sensitive information (such as personal information, information about minors, or classified information) exposed by a court case from becoming public.

Such powers are subject to strict review by higher courts, and generally have been narrow compared to countries such as the United Kingdom and Canada.

The 1971 case Nebraska Press Assn. v. Stuart established a high standard that must be met for courts to prevent media organizations from publishing information about an ongoing trial to preserve the defendant's right to a fair trial.

On January 4, 2007, US District Court Judge Jack B. Weinstein issued a temporary restraining order forbidding a number of activists and their organizations in the psychiatric survivors movement, including MindFreedom International and the Alliance for Human Research Protection from disseminating ostensibly leaked documents purporting to show that Eli Lilly and Company knowingly concealed information on potentially lethal side-effects of Zyprexa for years.[2] The "Zyprexa documents" had been sealed by an earlier court order in a mass tort case; they were widely disseminated after Alaska attorney James Gottstein issued a subpoena for them in an unrelated case. The Electronic Frontier Foundation came to the defense of one of the parties silenced by the restraining order to defend the First Amendment right of Internet journalists to post links to relevant documents on wikis, blogs, and other web pages.[3] While Eli Lilly maintains that the documents were obtained unlawfully and should not be part of the public domain, critics cite the leaked Pentagon Papers as precedent for the right of individuals to report on the existence and contents of such documents, and in this particular case, maintain that court sealing of documents should never be allowed to protect individuals or corporations from criminal liability.

Copyright

The United States has strong copyright laws, which result in the inability to republish copyrighted material without permission from the copyright owner, subject to criminal and civil penalties.

Digital Millennium Copyright Act

Main article: Digital Millennium Copyright Act

The Digital Millennium Copyright Act (DMCA) is an extension to United States copyright law passed unanimously on May 14, 1998, which criminalizes the production and dissemination of technology that allows users to circumvent technical copy-restriction methods. Under the Act, circumvention of a technological measure that effectively controls access to a work is illegal if done with the primary intent of violating the rights of copyright holders.

Although the Act contains an exception for research, the DMCA has had an impact on the worldwide cryptography research community, because many fear that their cryptanalytic research violates, or might be construed to violate the law. The arrest of Russian programmer Dmitry Sklyarov in 2001, for alleged infringement of the DMCA, was a highly publicized example of the law's use to prevent or penalize development of anti-digital rights management measures. Sklyarov was arrested in the United States after a presentation at DEF CON, and subsequently spent several months in jail. The DMCA has also been cited as chilling to non-criminal inclined users, such as students of cryptanalysis (including, in a well-known instance, Professor Felten and students at Princeton), and security consultants such as the Netherlands-based Niels Ferguson, who has declined to publish information about vulnerabilities he discovered in an Intel secure-computing scheme because of his concern about being arrested under the DMCA when he travels to the United States.

Free speech lawsuits have resulted surrounding the publication of DeCSS and the AACS encryption key, both dealing with the "cracking" of copy-protected movies (on DVD and Blu-ray Disc/HD DVD, respectively).

War on Terrorism

The NSA electronic surveillance program and DARPA's Total Information Awareness were two examples of post–September 11 government monitoring programs. Though intended to target terrorist behavior, critics worried fears about government monitoring might lead people to self-censorship.

A controversy also erupted concerning National Security Letters, issued by the federal government and not subject to prior judicial review. These letters demanded information the government asserted was relevant to a terrorism investigation, but also contained a gag order preventing recipients from revealing the existence of the letter. Critics contend this prevents public oversight of government investigations, and allows unreasonable search and seizure to go unchecked. The American Civil Liberties Union complained that Section 505 of the USA PATRIOT Act removed the need for the government to connect recipients to a terrorism investigation, widening the possibility for abuse. On November 7, 2005 the American Civil Liberty Union reported:

[...] According to the Washington Post, universities and casinos have received these letters and been forced to comply with the demands to turn over private student and customer information. Anyone who receives an NSL is gagged - forever - from telling anyone that the FBI demanded records, even if their identity has already been made public. In New York and Connecticut, the ACLU has challenged the NSL provision that was dramatically expanded by Section 505 of the Patriot Act. The legislation amended the existing NSL power by permitting the FBI to demand records of people who are not connected to terrorism and who are not suspected of any wrongdoing. [...]

On February 17, 2006 former U.S. Secretary of Defense Donald Rumsfeld stated, that:

in this war, some of the most critical battles may not be fought in the mountains of Afghanistan or the streets of Iraq, but in the newsrooms in places like New York and London and Cairo and elsewhere. [...] While the enemy is increasingly skillful at manipulating the media and using the tools of communications to their advantage, it should be noted that we have an advantage as well, and that is, quite simply, that the truth is on our side, and ultimately, in my view, truth wins out. I believe with every bone in my body that free people, exposed to sufficient information, will, over time, find their way to right decisions.

The Protect America Act of 2007 was also controversial for its lack of judicial review.

The war on terrorism also affects US policy towards journalists in other states. In 2011, US president Barack Obama asked Yemeni President Ali Abdullah Saleh to stop the release of journalist Abdulelah Haider Shaye, who reported US involvement in the bombings.

Free speech zone

Main article: Free speech zone

Free speech zone at the 2004 Democratic National Convention

Free speech zones (also known as First Amendment Zones, Free speech cages, and Protest zones) are areas set aside in public places for citizens of the United States engaged in political activism to exercise their right of free speech. The First Amendment to the United States Constitution states that "Congress shall make no law... abridging... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The existence of free speech zones is based on court decisions that stipulate the government may regulate the time, place, and manner—but not content—of expression. TPM restrictions, as these are known, are only lawful when:

• they treat all speech equally - for example, persons on all sides of an issue must be treated the same;
• they are justified by a substantial, bona-fide public interest, such as crowd control;
• they do not substantively impede or dilute the speech at hand;
• there is no bad faith; there is no overt or ulterior motive by the authorities imposing a TPM restriction to suppress speech in general, or speech that they disagree with, in particular.

All TPM restrictions are subject to judicial review. Unreasonable and unconstitutional TPM restrictions are and have been repeatedly vacated by various courts, and/or subjected to injunction, restraining order, and consent decree. Unconstitutional TPM restrictions allow citizens whose freedom of speech has been violated to personally sue state agents acting under color of law responsible for the violations at hand in their individual capacity, e.g. as private citizens, stripping them of any official capacity defense or defenses of sovereign immunity. TPM restrictions related to core political speech are subject to the highest possible level of Constitutional scrutiny.

Free speech zones have been used at a variety of political gatherings. The stated purpose of free speech zones is to allegedly protect the safety of those attending the political gathering, or allegedly for the safety of the protesters themselves. Critics, however, suggest that such zones are "Orwellian", and that authorities use them in a heavy-handed manner to censor protesters by putting them literally out of sight of the mass media, hence the public, as well as visiting dignitaries. Though authorities generally deny specifically targeting protesters, on a number of occasions, these denials have been contradicted by subsequent court testimony. The American Civil Liberties Union (ACLU) has filed a number of lawsuits on the issue.

The most prominent examples are those created by the United States Secret Service for President George W. Bush and other members of his administration. While free speech zones existed in limited forms prior to the Presidency of George W. Bush, it has been during Bush's presidency that their scope has been greatly expanded. Free speech zones are and have been used in the past and in the present by institutions of higher education in the United States, which has led to organizations like the ACLU and the Foundation for Individual Rights in Education to object to these as infringements of freedom of speech, and of academic freedom.

Corporate censorship

Further information: Corporate censorship

In 1969 Nicholas Johnson, United States Federal Communications Commission (FCC) commissioner, put forward in an article in TV Guide entitled The Silent Screen that "Censorship is a serious problem" in the United States, and that he agreed with the statements by various network officials that television was subject to it, but disputed "just who is doing most of the censoring". He stated that most television censorship is corporate censorship, not government censorship.

Croteau and Hoynes discuss corporate censorship in the news publishing business, observing that it can occur as self-censorship. They note that it is "virtually impossible to document", because it is covert. Jonathan Alter states that "In a tight job market, the tendency is to avoid getting yourself or your boss in trouble. So an adjective gets dropped, a story skipped, a punch pulled … It's like that Sherlock Holmes story — the dog that didn't bark. Those clues are hard to find." The head of the Media Access Project notes that such self-censorship is not misreporting or false reporting, but simply not reporting at all. The self-censorship is not the product of "dramatic conspiracies", according to Croteau and Hoynes, but simply the interaction of many small daily decisions. Journalists want to keep their jobs. Editors support the interests of the company. These many small actions and inactions accumulate to produce (in their words) "homogenized, corporate-friendly media". Croteau and Hoynes report that such corporate censorship in journalism is commonplace, reporting the results of studies revealing that more than 40% of journalists and news executives stating that they had deliberately engaged in such censorship by avoiding newsworthy stories or softening the tones of stories.

Nichols and McChesney opine that "the maniacal media baron as portrayed in James Bond films or profiles of Rupert Murdoch is far less a danger than the cautious and compromised editor who seeks to 'balance' a responsibility to readers or viewers with a duty to serve his boss and the advertisers". They state that "even among journalists who entered the field for the noblest of reasons" there is a tendency to avoid any controversial journalism that might embroil the news company in a battle with a powerful corporation or a government agency.

Self-censorship is not the only form of corporate censorship in the news and entertainment businesses. Croteau and Hoynes also describe examples of managers censoring their employees, subdivisions of conglomerates applying pressure upon one another, and pressure applied upon corporations by external entities such as advertisers.

One of the incidents of corporate censorship that Croteau and Hoynes find to be "the most disturbing" in their view is the news reporting in the U.S. of the Telecommunications Act of 1996, which made fundamental changes to the limitations on ownership of media conglomerates within the U.S. and which was heavily lobbied for by media interests, and yet which was subject to, in Croteau and Hoynes words, "remarkably little coverage" by U.S. news media.

Internet & Internet-related censorship

Main article: Internet censorship in the United States

Private Internet connections in the United States are not overtly subject to censorship imposed by the government, but there is evidence of search related restrictions being imposed through certain predominant search engines, along other intentionally narrowed parameters related to censorship as "blocked access" that seems to indicate intentional governmental restrictions where search providers seem complicit with "open internet searches."

However, private businesses, schools, libraries, and government offices may use filtering software at their discretion, and in such cases courts have ruled the use of such software does not violate the First Amendment.

WikiLeaks related censorship

See also: Reactions to the United States diplomatic cables leak

Amazon.com removed WikiLeaks from its servers on 1 December 2010 at 19:30 GMT. U.S. Senator Joe Lieberman, among the members of the U.S. Senate Homeland Security and Governmental Affairs Committee who had questioned Amazon in private communication on the company's hosting of WikiLeaks and the illegally obtained documents, commended Amazon for the action; WikiLeaks, however, responded by stating on its official Twitter page that "WikiLeaks servers at Amazon ousted. Free speech the land of the free—fine our $ are now spent to employ people in Europe", and later that "If Amazon is so uncomfortable with the first amendment, they should get out of the business of selling books".

Official efforts by the U.S. government to limit access to, conversation about, and general spread of the cables leaked by WikiLeaks were revealed by leading media organizations. A 4 December 2010 article by MSNBC, reported that the Obama administration has warned federal government employees and students in educational institutions studying towards careers in public service that they must refrain from downloading or linking to any WikiLeaks documents. However, State Department spokesman P.J. Crowley denied ordering students, stating, "We do not control private networks. We have issued no authoritative instructions to people who are not employees of the Department of State." He said the warning was from an "overzealous employee." According to a 3 December 2010 article in The Guardian, access to WikiLeaks has been blocked for federal workers. The U.S. Library of Congress, the U.S. Commerce Department and other government agencies have confirmed that the ban is already in place. Some Department of Homeland Security staff say the ban is hampering their work: "More damage will be done by keeping the federal workforce largely in the dark about what other interested parties worldwide are going to be reading and analyzing." One official says that the ban apparently covers personal computers as well.

A spokesman for Columbia University confirmed on 4 December that its Office of Career Services sent an e-mail warning students at Columbia's School of International and Public Affairs to refrain from accessing WikiLeaks cables and discussing this subject on the grounds that "discourse about the documents would call into question your ability to deal with confidential information". However, this was quickly retracted on the following day. SIPA Dean John Henry Coatsworth wrote that "Freedom of information and expression is a core value of our institution, [...] thus, SIPA’s position is that students have a right to discuss and debate any information in the public arena that they deem relevant to their studies or to their roles as global citizens, and to do so without fear of adverse consequences."

The New York Times reported on 14 December that the U.S. Air Force bars its personnel from access to news sites (such as those of The New York Times and The Guardian, Le Monde, El País, and Der Spiegel) that publish leaked cables.

On 18 December, the Bank of America stopped handling payments for WikiLeaks. Bank of America is also blocking access to WikiLeaks from its internal network preventing employees from accessing WikiLeaks.

PRISM and Edward Snowden's revelations about NSA activity

The Monterey Herald reported on June 27, 2013, that the United States Army bars its personnel from access to parts of the website of The Guardian after their revelations of whistleblower Edward Snowden's information about global surveillance. The entire Guardian website is blocked for personnel stationed throughout Afghanistan, the Middle East, and South Asia.

See also

• Civil liberties in the United States
• First Amendment to the United States Constitution
• Freedom of speech in the United States
• Press freedom in the United States
• List of cases argued by Floyd Abrams
• List of most commonly challenged books in the United States
• Mass surveillance in the United States
• Media coverage of climate change
• Media bias in the United States
• Political correctness
• Prior restraint
• Surveillance
  • Computer surveillance
• United States defamation law
• United States obscenity law
• Westmoreland v. CBS

Documentary films

• This Film Is Not Yet Rated (2006)

Censorship in the past

• Alien and Sedition Acts
• Comics Code Authority
• Hays Code (Production Code)
• Red Scare

Rating systems and industry self-regulation

• Comics Code Authority
• Entertainment Software Rating Board (ESRB)
• MPAA film rating system
• Parental Advisory (music)
• TV Parental Guidelines

Related techniques of suppression

• Media manipulation
• Propaganda
• Slander and libel

Free speech advocates

• American Civil Liberties Union
• American Library Association
• Center for Democracy and Technology
• Electronic Frontier Foundation
• Fans of X-Rated Entertainment
• Index on Censorship
• International Freedom of Expression Exchange
• National Coalition Against Censorship

Organizations advocating censorship

• New York Society for the Suppression of Vice

Surveillance by the United States government

• 2013 mass surveillance disclosures, reports about NSA and its international partners' mass surveillance of foreign nationals and U.S. citizens
• Carnivore, a U.S. Federal Bureau of Investigation system to monitor email and electronic communications
• Computer and Internet Protocol Address Verifier (CIPAV), a data gathering tool used by the U.S. Federal Bureau of Investigation (FBI)
• Dropmire, a secret surveillance program by the NSA aimed at surveillance of foreign embassies and diplomatic staff, including those of NATO allies
• Magic Lantern, keystroke logging software developed by the U.S. Federal Bureau of Investigation
• NSA call database, a database containing metadata for hundreds of billions of telephone calls made in the U.S.
• NSA warrantless surveillance (2001–07)
• NSA whistleblowers: William Binney, Thomas Andrews Drake, Mark Klein, Thomas Tamm, Russ Tice
• Spying on United Nations leaders by United States diplomats
• Stellar Wind, code name for information collected under the President's Surveillance Program
• Terrorist Surveillance Program, an NSA electronic surveillance program
• Total Information Awareness, a project of the Defense Advanced Research Projects Agency (DARPA)

External links

• Administration of the Invention Secrecy Act