Censorship

Also known as “prior restraint,” censorship is when government (local, state or federal)  prevents the publication or distribution of books, films, newspapers or other media over objections about content.  Censorship by government raises  Constitutional issues, and may trigger “strict scrutiny” review in the courts.

An important point here is that the US First Amendment prohibits government censorship. This is called the “state action doctrine.”  When censorship occurs between private people or entities, the courts may be asked to protect private First Amendment rights.  Usually, the courts side with the private entities and their right to make editorial decisions.

When the New York Times does or does not print a letter to the editor, it is their  call under the First Amendment.  A decision by YouTube to promote (or demote) videos by the Prager group (*not an actual university)  was not an infringement  of Prager’s First Amendment rights, but rather, an exercise of YouTube’s editorial rights under the First Amendment.  (See articles in Harvard Law Review  and  Columbia University’s Global Freedom of Expression  about Prager v YouTube, 2020).

Globally, intervention by governments in the content of social media is an ongoing battle between a wide variety of forces involving questions of social responsibility and freedom of expression on all sides of the political spectrum. Some of these battles are described in series of editorials in the Washington Post and  the London-based Financial Times.   (Most of our emphasis in this course is on US law, but we need to keep an eye on international media issues as well).

Censorship dates back thousands of years.

Ancient philosophers such as Confucius and Socrates,  and many more, faced censorship, banishment, or execution when governments considered their ideas  dangerous.  The term “censor” comes from the Latin word cēnseō which means “to give an opinion, judge; to assess, reckon; to decree, determine.”  In ancient Rome, censors were magistrates whose duties included supervising the census and guarding moral conduct and speech.   

“Just as in ancient Grecian communities, the Roman ideal of good governance included shaping the character of the people. Censorship was thus regarded as an honorable task,” said Leyton Grey in a History of Censorship for the Frontier Centre for Public Policy of Winnipeg.  “Censorship has followed the free expression of men and women like a shadow throughout history.” 

US historian Mary E. Hull notes that the writings of ancient Chinese philosopher Confucius were censored when an emperor considered his ideas dangerous. China’s first censorship law was made over 1,700 years ago, and it is still a basic feature of Chinese society today.

The expansion of mass media with the printing press in the 1450s led to increased demands for church and government censorship in Europe.  The Catholic Church issued and updated an  “Index of Prohibited Books” from 1560 to 1948, and took an active role in banning  lewd or irreverent  movies until the 1950s. And in fifteenth century England,  licensing acts were designed to silence unorthodox writers and thinkers.

Routine prior restraint of printing ended around 1689 in Britain with the Glorious Revolution of the adoption of the English Bill of Rights.  And as we have seen (in Section 3), discussions about political freedom and freedom of the press begin emerging in this era. Milton’s Areopagitica, Montesque’s Spirit of the Laws, the Cato Letters, are known alongside arguments for free speech by American revolutionaries like Benjamin Franklin, Thomas Paine, Sam Adams and Patrick Henry.