January 3, 2011

Enforcement of obscenity and indecency laws does not constitute ‘censorship’

By Robert Peters, President of Morality in Media

Revised January 2011

Morality in Media receives many inquiries from the public about the word “censorship.”  Censorship still exists in many countries, where newspapers and other media must first submit articles, books, films, etc., to a Government authority for approval before they can be published.  With a few exceptions (e.g., to protect national security in time of war), “censorship” is not practiced in the United States.

From a historical perspective, the word “censorship” means prior restraint of First Amendment rights by government.  Enforcement of obscenity and indecency laws is NOT censorship because, first of all, the government is not imposing a prior restraint on the producers or distributors of obscene or indecent material.  Smut purveyors are free to publish whatever they want, but if what they distribute or exhibit is obscene or indecent, they are, after the fact, subject to criminal or civil sanctions under the relevant law(s). As the Supreme Court said in Near v. Minnesota, 283 US 697, 714 (1931):

“In the first place, the main purpose of such constitutional provisions [i.e., the freedom of speech and press provisions] ‘is to prevent all such previous restraints upon publication as had been practiced by other governments,’ and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare…”

In the 1978 FCC v. Pacifica case (438 U.S. 726), the Supreme Court upheld the federal law prohibiting the broadcast of “indecent” language against a challenge that the FCC’s enforcement of the law constituted impermissible “censorship.”  In so holding, the Pacifica Court stated:

The prohibition against censorship unequivocally denies the Commission any power to edit proposed broadcasts in advanceand to excise material considered inappropriate for the airwaves.  The prohibition, however, has never been construed to deny the Commission the power to review the content of completed broadcasts in the performance of its regulatory duties.  [438 U.S. at 735]

Second, the Supreme Court has repeatedly held that the First Amendment does not protect obscene materials.  As the Court said inCalifornia v. Miller, 413 U.S. 15, 24, 34 (1973):

This much has been settled categorically by the Court, that obscene material is not protected by the First Amendment…. [I]n our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom…

The Supreme Court has also rejected the argument that “indecent” language is entitled to full constitutional protection in every context.  In Pacifica, the Court stated:

When the issue is narrowed to the facts of this case, the question is whether the First Amendment denies government any power to restrict the public broadcast of indecent language in any circumstances…[438 U.S. at 744]

Although these words ordinarily lack literary, political, or scientific value, they are not entirely outside the protection of the First Amendment…Nonetheless, the constitutional protection accorded to a communication containing such patently offensive sexual and excretory language need not be the same in every context…We have long recognized that each medium of expression presents special First Amendment problems…And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection…  [746-748]

The Commission’s decision rested entirely on a nuisance rationale under which context is all-important…As Mr. Justice Sutherland wrote, a “nuisance may be merely a right thing in the wrong place, — like a pig in the parlor instead of the barnyard”…We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.  [750-751]

Many members of the public mistakenly believe that the First Amendment’s “free speech” liberties cover everything that is written, spoken, or pictured.  Not true.  As the Supreme Court put it in Roth v. United States, 354 U.S. 476, 483 (1957): “[I]t is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.”

Here’s a short list of “speech” that can be punished after publication without violating the First Amendment: perjury, contempt of court, libel, false advertising, fraud, copyright & trademark infringement, inciting a riot, threats, harassment, treason, child pornography, and obscenity.  It is also important to remember that the First Amendment does not restrict actions by private citizens.  A publisher, for example, has every right to choose which books to publish and which not to publish.

Here are some examples of what unconstitutional “censorship” is NOT:

·         The federal or a state government enforcing child pornography or obscenity laws.

·         A City Council restricting the location of “sexually oriented businesses.”

·         Citizens demonstrating in front of a “sexually oriented business.”

·         Citizens boycotting mainstream businesses that distribute pornography.

·         A responsible mainstream business choosing to not distribute pornography.

·         A responsible newspaper or billboard company refusing to publish ads for “sexually oriented businesses.”

·         The FCC enforcing the broadcast indecency law (after broadcast).

·         Citizens contacting TV executives to protest sex, violence, or vulgarity.

·         Citizens boycotting the products of a company that sponsors TV sex, violence or vulgarity.

·         A responsible TV affiliate refusing to air network programming that offends community standards.

Author: Robert Peters   01/03/2011

Further Reading