First Amendment and Censorship

Many consider censorship in the United States as an elixir of safety to the public.  Some consider censorship to play a major role in maintaining social standards.  On the other hand, many others consider censorship as imposing unreasonable restriction on the freedom of expression.  Therefore the topic of whether or not censorship affects the first amendment has been subject to much debate.     

In the 1915 case of Mutual Film Corporation v. Industrial Commission of Ohio, the Supreme Court observed that motion pictures do not constitute part of the “press” in the State of Ohio.  For this reason, motion pictures were held not entitled to First Amendment protection from censorship.  This case arose in response to the passing of a statute, whereby the Board of Censors had to approve all motion pictures prior to their exhibition.

Later, in 1918 the National Association of the Motion Picture Industry voted for self-censorship.  A code of standards which specified unacceptable subjects and situations for depiction in motion pictures was also specified.

The case of Joseph Burstyn, Inc. v. Wilson is a landmark decision of the United States Supreme Court on the matter of censorship and first amendment.  In this case it was held by the court that the First Amendment protection is bestowed upon motion pictures.  The ban of the Italian film “The Miracle” in New York City and New York State was challenged.  After considering the matter, the Supreme Court, ruled that:

1) Motion pictures are included within the free speech and press guarantees of the First Amendment;

2) the New York Education Law prohibiting the exhibition of any film without a license was void as a prior restraint on protected expression; and

3) a movie cannot be banned on the charge of sacrilege.

Therefore the ban on the film was lifted.

Relying on the case of Joseph Burstyn, Inc., the Supreme Court in Superior Films v. Department of Education of Ohio rejected the use of review boards to censor films.

The question as to the extend to which the censorship should be allowed inrelation to a film was considered by the court in the case of Kingsley International Pictures v. Regents of the University of the State of New York. In the Lady Chatterly’s Lover case, the Supreme Court ruled unconstitutional a section of the New York censorship law which prevented the exhibition of a movie simply because it advocated an idea.  The Court noted that: “The First Amendment’s basic guarantee is of freedom to advocate ideas.”

The question of enforcement of local laws regarding censorship was dealt with by the Supreme Court in the case of Interstate Circuit v. Dallas. The Supreme Court in the case determined that a municipal censorship ordinance was too vague to enforce.  In response to this ruling by the Court and concerned that state legislators would impose a variety of heavy-handed classification systems, the Motion Picture Association of America adopted its own classifications for movies.  The ratings system adopted at the time was the precursor of the system currently used in the motion picture industry.

Apart from the film industry, censorship is prevalent in all other areas of the entertainment industry.  In the earlier days, the radio was the popular medium of the day.  Even then, the radio did not enjoy the First Amendment protection from censorship that the press did.  Later in 1927, The Radio Act was created by the Federal Radio Commission, later named the Federal Communications Commission (FCC).  This agency which was responsible for assigning licenses to radio stations also routinely exercised its authority to revoke licenses as a means of censoring radio programming.  The Act also banned the use of any “obscene, indecent or profane language” on the radio.

In the case of National Broadcasting Company v. United States, the Supreme Court upheld the constitutionality of federal regulation of broadcasting on the basis that the radio was unique because of its “spectrum scarcity” and that this necessitated government regulation of spectrum use.

The FCC requirement that radio and television broadcasters cover each side of public issues on their stations was upheld by the Court in Red Lion Broadcasting Company v. Federal Communications Commission. The Court also concluded that where frequencies were limited, it could not extend an “unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish …”.

In the1978 decision of the Supreme Court in Federal Communications Commission v. Pacifica Foundation, the Supreme Court held that the broadcast on a New York radio station of a twelve-minute monologue by George Carlin, entitled “Filthy Words,” was indecent.  This reason cited by the court was that the deliberate and repetitive use of words referring to excretory or sexual activities during an afternoon broadcast could be heard by children.  In this case though the court identified seven particular words as indecent, the ruling did not in any way provide any specific guidance for defining indecency in general.

The question of time regulation for airing programs not fit to be viewed by children was considered by the court in Action for Children’s Television v. FCC. A U.S. appeals court found that, although the FCC’s definition of indecency was not overbroad, the restriction of such programming to the hours from midnight to 6 a.m. was unreasonable; it returned the case to the FCC for reconsideration of these hours.  Eventually the court approved the FCC’s indecent broadcasting ban from 6 a.m. to 10 p.m.  On appeal, the Supreme Court also refused to review this ruling.

The medium of television is also subject to the censorship regulations.  The Television Violence Act of 1989 gave television networks, cable operators and independent stations three years of immunity from antitrust regulations to allow them to establish guidelines for violence shown on the television.

The Telecommunications Act passed in 1996 required all television sets to contain a computer chip (V-chip) which allowed parents to block objectionable programming, and also required the development of a ratings system for television programs to guide parents in the use of the chip.  In December 1996, a six-category rating system for television was adopted and the ratings began to appear in the upper left-hand corner of the screen on January 1, 1997.  These age-based ratings were divided into six categories.  The first four were “TV-G,” recommended for general audiences; “TV-PG,” parental guidance suggested; “TV-14,” parents of children under fourteen strongly cautioned; and “TV-M,” mature audiences only. The other two ratings were only to be applied to children’s shows and were: “TV-Y,” suitable for all children, and “TV-Y7,” recommended for children seven and older. Since October 1, 1997, ABC, CBS, Fox and most cable networks began using new detailed ratings alongside the older, age-based ratings. These ratings were as follows: intense violence-V; intense sexual situations- S; strong coarse language -L; or intensely suggestive dialogue-D.

The censorship regulations and their effect on the rights guaranteed by the First Amendment has been discussed in relation to cable televisions also.  In the case of Turner Broadcasting System v. Federal Communications Commission, the Supreme Court said that cable television was entitled to virtually the same constitutional guarantees of free speech as newspapers and magazines.

In relation to the regulations on cable television, the case of Denver Area Educational Telecommunications Consortium Inc. v. FCC is also very important. The Supreme Court in this case voted:

1) to strike down the portion of the law allowing cable companies to refuse to air indecent material–defined as sexually explicit or “patently offensive” — on “public access” channels required by local governments;

2) to strike down the section of the law requiring subscribers to leased access channels (paid for by independent programmers) to submit a written request before “indecent” programs could be received; and

3) to uphold sections of the law that allowed cable operators to refuse “indecent” programming on the leased access channels.

The courts have consistently taken the view that unreasonable censorship regulations in the entertainment industry cannot be allowed.  In Playboy Entertainment Group v. United States and in Spice Entertainment Companies v. Reno, the Supreme Court denied an injunction that implemented a law requiring cable operators to scramble the signals of sexually explicit programs so that children couldn’t see them.

Censorship regulations for the internet have also been developed.  The Senator Exon’s bill (Communications Decency Act) when passed initially regulated electronic communications and imposed criminal liability on anyone who made available any “comment, request, suggestion, proposal, image or other communication” found to be “obscene, lewd, lascivious, filthy or indecent.”  This applied even to private messages between adults.  Later this was amended, but Act still makes it a crime to use offensive terms about “sexual or excretory activities or organs” in computer communications with anyone under the age of 18.

Telecommunications Act of 1996 which also included the Communications Decency Act (CDA) imposed heavy criminal sanctions for Internet indecency.

In the case of ACLU v. Reno, challenge to the internet indecency provisions was made on constitutional grounds. The court in this case declared that the Internet restrictions in the CDA violated the constitutional guarantee of free speech.  It was also observed that the internet is granted First Amendment protections which are equal to, perhaps stronger than, those afforded to printed material.

Again in the 1997 case of Reno v. ACLU, the Supreme Court struck down the CDA saying that it was a violation of the freedom of speech protected by the First Amendment.  The Court was concerned that the CDA, by denying minors access to indecent speech, suppressed a large amount of information which adults had a constitutional right to receive.

Therefore in conclusion it can be stated that the regulations regarding censorship is present in all areas of the entertainment industry.  However, the censorship regulations as well as the judicial interpretation of the laws have consistently taken the view that censorship regulations cannot unreasonably abridge the rights guaranteed to the individuals under the First Amendment.


Inside First Amendment and Censorship