First Amendment “absolutists” take the position that free speech should always be protected, irrespective of what other constitutionally-based social values are at stake. We have had very few theorists of the First Amendment who take an absolutist position, and while a couple of Supreme Court Justices have been particularly strong supporters of the First Amendment -- notably William O. Douglas and Harry Blackmun – no one on the Court has taken a strict absolutist position on free speech either. Much of First Amendment law involves figuring out which other social values free speech must be balanced against, and how to do that balancing in such a way that freedom of expression is maximized.
The familiar term “censorship” is called “prior restraint” in legal discussions. We distinguish between prior restraint (which prevents expression from happening at all) and punishment after the fact (which evaluates whether or not expression was appropriate after the fact), and historically the U.S. government has always strongly favored the latter because it promotes freedom of expression most successfully. Some of the decisions referred to colloquially as “censorship” actually involve punishment after expression has taken place. Such decisions do have an impact going forward, however, if they lead to new laws and regulations regarding expression, or if they create a “chiling effect” – a social environment in which certain types of expression are discouraged.
Types of Censored Content
Since so many different types of laws and regulations can create a situation that is experienced or perceived as censorship, a very wide range of types of materials can be restricted.
An introduction to 25 topics related to censorship, each including a discussion of the legal issue, recent examples of censorship, and links to additional resources. These issues are discussed in the context of academic freedom, but they are found as applied to artists’ work as well.
National Coalition against Censorship [www.ncac.org]
National Coalition against Censorship/Academic Freedom
An interactive archive documenting cases of censorship in a variety of media, useful for identifying arguments used to justify censorship.
National Coalition Against Censorship [www.ncac.org]
Randolph Street Gallery, Chicago/The File Room
Types of Law that Create Censorship Opportunities
Many different types of laws and regulations can restrict expression in ways that are experienced or perceived as censorship.
Books that have been banned in the past are now available online, providing examples of the diverse arguments used to justify such bans. This site includes analyses of how recent communications legislation in the United States, including the Telecommunications Act of 1996 and the Digital Millennium Copyright Act (DMCA) can be used as censorship tools.
Online Books, University of Pennsylvania [onlinebooks.library.upenn.edu]
John Mark Ockerbloom/Banned Books Online
The Communications Decency Act was the first congressional effort to censor online communications. The Supreme Court struck down the Act, protecting free speech online, in 1997. A summary of the Act and the Supreme Court decision is provided here, along with links to more detailed information about both the legislative history and the court case.
Center for Democracy and Technology [www.cdt.org]
Center for Democracy and Technology/Communications Decency Act
A database of laws about, the history of, and current censorship practices around the world.
Norwegian Forum for Freedom of Expression [www.beaconforfreedom.org]
Norwegian Forum for Freedom of Expression/Beacn for Freedom of Expression
Internet Filters and Censorship
Just as technologies are being used to enforce copyright law (see discussion of Digital Rights Management), so they are being used to effectively censor content.
An explanation of how internet filters can wind up censoring content in appropriately, with details on specific commonly-used filters. Such filters may prevent people from seeing your work online.
National Coalition against Censorship [www.ncac.org]
Marjorie Heins & Christina Cho/Internet Filters: A Public Policy Report
A succinct discussion of the nature of internet filters, their history, and censorship issues they introduce.
Free Expression Policy Project, Brennan Center for Justice, NYU School of Law [www.fepprojecct.org]
Free Expression Policy Project/Fact Sheet on Internet Filters
Responding to Censorship Efforts
A handbook on censorship aimed at artistic content. It includes checklists of what to do if your work should be challenged and other pragmatic material.
National Campaign for Freedom of Expression [http://www.thefirstamendment.org/ncfe1.htm]
National Campaign for Freedom of Expression/Handbook