Censorship in the United States

From Wikipedia, the free encyclopedia

It has been suggested that this article or section be merged into Freedom of speech in the United States. (Discuss)

Part of the series on
Censorship
By Country
Algeria Australia Belarus Bhutan Burma Canada China Cuba East Germany France Germany India Indonesia Iran Ireland Israel Japan	Malaysia Pakistan Portugal Russia Samoa Saudi Arabia Singapore South Asia North Korea Soviet Union Sweden Taiwan Thailand Tunisia Turkey United Kingdom United States
See also: Freedom of speech by country
By media
Advertisements Anime Books Films	Re-edited films Internet Music Video games
By channel
BBC	MTV
By method
Book burning Bleep censor Broadcast delay Content-control software Expurgation Pixelization Postal censorship Prior restraint Self-censorship Whitewashing Gag order
By context
Corporate censorship Under fascist regimes Political censorship In religion This box: view • talk • edit

According to the Reporters Without Borders Press Freedom Index, the United States is currently ranked 48th in the world in terms of press freedom.^[1] 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. However, in general freedom of speech is considered an integral American value, as reflected by the First Amendment to the United States Constitution.

This freedom has caused controversy at times. For instance, it is legal to express certain forms of hate speech so long as one does not engage in the acts being described or urge others to commit illegal acts.

Contents 1 History 1.1 Sedition 1.2 Local censorship 1.3 Near v. Minnesota and prior restraint 1.4 Smith Act 1.5 Wartime censorship 1.6 Second Red Scare 1.7 Weapons proliferation 1.8 The COINTELPRO operations 1.9 Export of sensitive software 2 Broadcast censorship 3 Censorship of pornography 4 Ban on material support for foreign boycotts 5 Libel 6 Judicial orders 7 Copyright 7.1 Digital Millennium Copyright Act 8 War on Terrorism 9 Free speech zone 10 Internet censorship 10.1 ISP censorship 10.2 Network neutrality 11 References 12 See also 12.1 Documentary films 12.2 Censorship in the past 12.3 Rating systems and industry self-regulation 12.4 Related techniques of suppression 12.5 Free speech advocates 13 See also 14 External links

[edit] History

A celebrated legal case in 1734-1735 involved John Peter Zenger, a New York newspaper printer that was taken to court and charged for seditious libel and assailed the corrupt royal governor of New York. His lawyer Andrew Hamilton defended him well, and was made famous for his speech "truth cannot be libel." This court case paved the way for freedom of press in America to be adopted in the constitution.^[2]

[edit] Sedition

There have been a number of attempts in the United States to regulate 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.

[edit] Local censorship

For much of the nation's history, 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. Many did, as exemplified by the phrase "banned in Boston."

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.

[edit] 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

[edit] 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, however, had not been removed from the books as of early-middle April of 2008.

[edit] 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.

The Office of Censorship, an emergency wartime agency, heavily censored reporting during World War II. On December 19, 1941 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. "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."^[3]

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 U.S.-led UN invasion of Iraq during the presidency of George H. W. Bush, The Pentagon placed restrictions on media coverage of the ground war, in order to protect confidential military information.^[4]

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. Voicing against the Iraq war has also been largely restricted, such as MSNBC's cancelling of Donahue and interviewers from news channels such as CNN saying "shut up" to people being interviewed that do not support the Iraq war. ^[5]

[edit] Second Red Scare

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 expelled from 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.^[6]

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."

[edit] 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 another person 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 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. This was known as Feinstein Amendment SP 419.

Further information: Prior restraint

[edit] The COINTELPRO operations

Main article: COINTELPRO

The COINTELPRO (COunter INTELligence PROgram) was a program of the United States Federal Bureau of Investigation aimed at investigating and disrupting dissident political organizations within the United States. Although covert operations have been employed throughout FBI history, the formal COINTELPRO operations of 1956-1971 were broadly targeted against organizations that were (at the time) considered to have politically radical elements, ranging from those whose stated goal was the violent overthrow of the U.S. government (such as the Weathermen); non-violent civil rights groups such as Martin Luther King Jr.'s Southern Christian Leadership Conference; and violent groups like the Ku Klux Klan and the American Nazi Party. The founding document of COINTELPRO directed FBI agents to "expose, disrupt, misdirect, discredit, or otherwise neutralize" the activities of these movements and their leaders.

[edit] 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.^[7] However, some regulations remain.

Further information: export of cryptography

[edit] Broadcast censorship

The Federal Communications Commission (FCC) regulates "indecent" free-to-air broadcasting (both television and radio). It can issue fines if, for example, the broadcaster employs certain swear words. 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. Satellite, cable television, and Internet outlets are not subject to content-based FCC regulation.

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 FCC is also responsible for permitting transmitters, to prevent interference between stations from obscuring each others' 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.

[edit] Censorship of pornography

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.

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.

[edit] Ban on material support for foreign boycotts

Main article: Economic and political boycotts of Israel

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."^[8]

On this basis, some American businesses have been punished for answering their customers' question about origin of their products.^[9][10]

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.^[11]

However, it is clear that the law only forbids participation 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 (as opposed to material) supports any boycott, whether foreign, or domestic. (Such speech is considered to be core political speech under the U.S. Constitution, and any laws interfering with core political speech are subject to the strictest Constitutional scrutiny.)

[edit] Libel

Libel and slander are generally considered civil offenses 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 U.S., 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.^{[citation needed]}

Further information: Strategic lawsuit against public participation

[edit] Judicial orders

This article or section may be slanted towards recent events. Please try to keep recent events in historical perspective. (March 2008)

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 was a landmark in establishing a high standard which must be met when media organizations are prevented from publishing information about an ongoing trial, in order to preserve the defendant's right to a fair trial.

On January 4, 2007, U.S. 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.[1] 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.[2] 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.[3]

[edit] 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.

[edit] 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,^[12] 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),^[13] 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 U.S.

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 DVDs.

[edit] War on Terrorism

The "War on Terrorism" has been seen by some individuals as a pretext for reducing civil liberties.

The NSA electronic surveillance program and DARPA's Total Information Awareness were two examples of post-September 11th government monitoring programs. Though intended to target terrorist behavior, critics worried fears about government monitoring might lead people to self-censorship, especially when combined with comments from George W. Bush and members of Congress that people who disagree with the administration's policies or who insist on civil liberty protections, either have something to hide, are being unpatriotic, or are committing treason by aiding terrorist enemies of the country.

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 possibilty for abuse.^[14]

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

[edit] Free speech zone

Main article: Free speech zone

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 U.S. court decisions stipulating that 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 use TPM restrictions 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. 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",^[15][16] 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.^[17] 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.^[18]

[edit] Internet censorship

Main article: Internet censorship in the United States

Private Internet connections in the U.S. are not subject to technical censorship such as content-control software imposed by the government, but private businesses, schools, libraries and government offices may make use of such filtering software at their discretion, although in such cases courts have ruled the use of such software is not censorship.^[19]

[edit] ISP censorship

Comcast, an internet service provider "actively interferes with attempts by some of its high-speed Internet subscribers to share files online, a move that runs counter to the tradition of treating all types of Net traffic equally."^[20] Legal controversy ensued when Comcast blocked BitTorrent by sending a RST packet claiming to be Bit Torrent, and denying the connection. Now there is also evidence of Comcast using RST packets on groupware applications that have nothing to do with file sharing. Kevin Kanarski, who works as a Lotus Notes messaging engineer, noticed some strange behavior with Lotus Notes dropping emails when hooked up to a Comcast connection and has managed to verify that Comcast's reset packets are the culprit.^[21]

Recently, Comcast customers have also reported a sporadic inability to use Google because forged RST packets are also interfering with HTTP access to google.com,^[22] which has further angered users.^[23]

Further information: Comcast

[edit] Network neutrality

Main article: Network neutrality in the United States

Some broadband providers have proposed to start charging content providers in return for higher levels of service, creating what is known as a Tiered Internet. Packets originating from providers who pay the additional fees would in some fashion be given better than "neutral" handling, while those content providers who do not pay the higher fees would get a lesser level of service. Given this ability to accelerate the handling of selected packets, the service providers would perhaps give Quality of Service guarantees to given senders or recipients.

Advocates of network neutrality contend that any non-neutral scheme could allow ISPs to unfairly discriminate and control which data they prioritize, such as data from their own sponsors or media interests:

"[These companies] want to be Internet gatekeepers, deciding which Web sites go fast or slow and which won't load at all"..."tax content providers to guarantee speedy delivery of their data."..."to discriminate in favor of their own search engines, Internet phone services, and streaming video — while slowing down or blocking their competitors"..."to reserve express lanes for their own content and services.^[24]

[edit] References

[edit] See also

• Civil liberties in the United States
• First Amendment to the United States Constitution
• Freedom of speech in the United States
• Freedom of the press
• List of cases argued by Floyd Abrams
• Media bias in the United States
• United States obscenity law
• Political correctness
• Prior restraint
• Westmoreland v. CBS

[edit] Documentary films

• F*ck: A F*ckumentary (2005)
• This Film Is Not Yet Rated (2006)

[edit] Censorship in the past

• Alien and Sedition Acts
• Production Code
• Comics Code Authority
• Red Scare

[edit] Rating systems and industry self-regulation

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

[edit] Related techniques of suppression

• Slander and libel
• Propaganda
• Media manipulation

[edit] Free speech advocates

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

[edit] See also

• clear and present danger
• fleeting expletive
• imminent lawless action
• shouting fire in a crowded theater

[edit] External links

• Administration of the Invention Secrecy Act
• Banned Magazine, the online journal of censorship and secrecy
• Fairness Doctrine Vetoed by both Ronald Reagan and G.H.W. Bush
• Music censorship incidents and issues in the US - reported by Freemuse
• Project Censorship