Point: Book Censorship is an Attack on the Freedom of the Press.

Thesis: The First Amendment, basically, grants American citizens the right to access, publish, or broadcast any content as long as it does not infringe upon the rights or safety of others. The right to a free press is threatened by censorship of existing media and by prevention of the publication or broadcast of certain content.

Summary: Censorship of books and other publications is the most significant threat to modern media. Organizations and individuals continue to call for the censorship of books, websites, magazines and newspapers on the basis of "obscenity" or "maintaining public order." Though state and local governments have created numerous censorship guidelines, the Supreme Court has routinely upheld the right of free choice for adult consumers. The situation is markedly different in foreign countries, particularly China, which employs sophisticated internet filtering technology to keep its citizens from accessing a free range of information.

During times of crisis, challenges to freedom of expression become more pronounced. It is not unusual for governments to attempt to thwart subversion and dissent by restricting the exchange of information between citizens. Libel (a civil, and in some countries, a criminal, action seeking to punish false or defamatory publications) and prior restraint (a doctrine permitting government to take action against errant speech before it is published) have been used, historically, to prevent the press from effectively monitoring the activities of government and interest groups. A series of landmark cases has validated the rights of the press to inform the public on political issues. The current threat of terrorism has convinced the government to adopt provisions that pose a danger to freedom of the press. In addition, the diversity of digital media is threatened by censorship from media conglomerates attempting to establish economic dominance. In this way, governments may no longer be the greatest threat to free speech at all.

The freedom of the press is under constant threat from organizations and individuals who believe the public needs protection from dangerous or inappropriate media. The First Amendment exists precisely to protect the freedom of expression, and it is the responsibility of government and the citizenry to actively preserve the freedoms granted by the Bill of Rights.

Defining the Free Press

The first ten amendments to the US Constitution, known as the Bill of Rights, were ratified in 1791. The First Amendment guarantees the freedoms of religion, speech, assembly, press, and petition. These provisions have become the cornerstone for the freedom of expression enjoyed by American citizens and the legal justification behind the struggle to prevent censorship.

The freedom of the press, as defined by the Constitution and refined through the rulings of state and federal courts, protects the rights of an individual to publish any printed material that he or she creates, regardless of content, and also protects the right of media institutions to publish political statements and cover news. Although the freedom of the press originally referred to print media, it has been extended to cover broadcast media and most recently Internet content. There are three basic rights covered under the freedom of the press: the right to publish, the right to confidentiality of sources, and the right of citizens to access the products of the press.

Restrictions to the Press

There have always been organizations and individuals who feel that the press should be prohibited from carrying certain messages deemed inappropriate or dangerous for mass consumption. Challenges to the press come in two forms: individuals may try to limit the press by censoring existing media, or they may punish persons for knowingly publishing false or dangerous information that could cause harm to another person or pose a threat to national security. In either instance, successful restrictions are designed to also have a chilling effect on subsequent speech by others.

Libel and Prior Restraint

Libel and prior restraint are largely historical issues that refer to the ability of the press to monitor public officials, government agencies, and influential organizations. The government used libel suits and prior restraint to restrict the press until a series of landmark cases upheld the right of the press to investigate and publish information about public figures and organizations.

The term "libel" refers to knowingly printing or publishing false or defamatory statements about a government or individual. The first major case of libel in the United States was brought against Peter Zenger in 1735, before the adoption of the First Amendment. Zenger was accused of publishing critical accounts against the British governor and refused to reveal his sources, even when threatened with the death penalty. The jury's acquittal of Zenger is considered the first major victory for the freedom of the press and weighed on the minds of the framers in the adoption of the Bill of Rights in 1791.

Until 1964, many states maintained criminal laws preventing libel or defamation by the press. Publishers and writers were often reluctant to print critical accounts of public figures because they might be subject to criminal libel charges. The difference between civil and criminal libel is that civil cases can only award money damages, while a criminal prosecution carries the threat of jail time. Currently, criminal libel is highly unusual in the United States, though it is somewhat more common in other common-law countries like the UK and India. In the case of New York Times v. Sullivan (1964), the Supreme Court greatly limited the potential for libel suits by stating that a media agent could not be convicted of libel against a public figure unless it could be proved that the agent maliciously published false information. This required evidence that a person or organization publishing a story knew or should have known that the material was false at the time it was published.

Another major issue for the press has been the concept of prior restraint, which refers to the prevention of the publication of certain material on the basis that it may pose a threat to security or be inflammatory in nature.

The first major legal battle dealing with prior restraint was the case of Near v. Minnesota (1931) in which Jay Near, publisher of the Saturday Press, published allegations that a number of elected official had engaged in gambling, prostitution and other illegal activities. The Minnesota government prevented the publication of the Saturday Press, prompting Near to take his case to federal court. The Supreme Court ruled that the Constitution protects publications from prior restraint unless the printed material poses an imminent threat to public security. The standard enunciated in this decision remains so strong that there have been exceedingly few cases of prior restraint being upheld since. In a much later case, commonly known as the "Pentagon Papers Case" it became clear that anything more than a trivial delay in publication without proof of a grave threat to national security will not stand.

The Danger of Censorship and the Role of Obscenity

When an individual or organization proposes censoring or banning a publication it is called a "challenge." Hundreds of books, magazines, newspapers, and broadcast programs are challenged each year by governments and interest groups. Most challenges are posed for one of two reasons: because the content is deemed "obscene" or inappropriate for certain audiences, or because the content poses a threat to security.

Throughout US history, the courts have attempted to define the concept of "obscenity." The most recent definition, established by the Supreme Court in 1971, defines obscenity as work that, given contemporary community standards, wholly lacks artistic, scientific, political, or literary value and depicts something that might be considered patently offensive. As this legal definition clearly demonstrates, any attempt to define a subjective concept necessarily relies on other subjective concepts like "contemporary community standards," "artistic value," or "patently offensive." The idea of obscenity has therefore developed as not a concept that can always defined over broad geographic areas in legal terms, but rather is something that should be and must be evaluated personally by every adult consumer and community, and not as Justice Stewart once opined, was simply something that "I know when I see it." The net effect of this evolution of obscenity doctrine is that it is exceedingly difficult to restrain any kind of speech on the grounds of obscenity.

A number of books now considered classic literature were at one time banned for having obscene content. The Federal Anti-Obscenity Act of 1873 was used to ban such works as James Joyce's Ulysses, Voltaire's Candide, and John Cleland's Fanny Hill. The Anti- Obscenity Act was repealed in 1938, but challenges based on obscenity are still common. In 2007, the Harry Potter books, by J.K. Rowling, were among the most commonly challenged books in library collections around the country. Since modern obscenity doctrine creates such a high burden on those seeking to impose a prior restraint, the vast majority of modern complaints have not been sustained.

During times of military crisis, debates over censorship and civil liberties become more pronounced. During the First and Second World Wars and the subsequent Cold War, the government attempted to ban books about communism, or books that advocated activism against the government.

Censorship of politically subversive literature began with the Espionage Act of 1917 and the Sedition Act of 1918, which allowed the government to ban German language material and books that advocated socialism or pacifism. Lenin's State and Revolution and Thoreau's Civil Disobedience were both banned for being subversive. Though the acts were later repealed, there have been attempts to use the 2001 USA Patriot Act as justification for challenging books that advocate Islamic activism and civil disobedience. Most contemporary legal scholars find no merit in such challenges, and ultimately, no publication has been "banned" under the Patriot Act or other post-2001 enactments.

In 1996, Congress passed the Communications Decency Act, which was intended to prevent the publication of obscene material on any computer accessible to persons under the age of eighteen. The Supreme Court ruled, in the case of Reno v. American Civil Liberties Union, that the act violated the First Amendment. The government altered its approach and was successful in partially censoring some Internet pornography with the 2000 Children's Internet Protection Act (CIPA), which required that all institutions receiving federal funding have filtering software installed on any computer that might be used by minors. The Supreme Court upheld CIPA because it refers specifically to the allocation of federal funding and does not attempt to alter to the content of the media in question. In these cases, the deciding factor has not been the obscenity or violation of contemporary community standards of the material, but the availability of software or other means to keep minors from accessing adult content.

Challenges in the Twenty-First Century The USA Patriot Act of 2001 grants additional powers to government agencies, like the Federal Bureau of Investigation and the Central Intelligence Agency, to conduct domestic surveillance. In 2005, the American Civil Liberties Union reported that the FBI has investigated the library and Internet usage records of over 30,000 citizens. The Patriot Act grants government agencies the right to decide what media can be considered "dangerous," and therefore to justify surveillance of private consumption. Given the clear chilling effect which follows from government involvement in the affairs of a free press, granting the government the power to determine the value of published media erodes the freedoms granted under the Bill of Rights by denying free choice to consumers. Such actions also fly in the face of established Supreme Court precedent.

In 2006, the US Senate voted to officially designate the Al-Manar satellite television network, the Al-Nour radio station, and their parent company the Lebanese Media Group as "terrorist entities," for their association with the Lebanese paramilitary organization Hezbollah. Specifically, the media outlets were accused of having acted as a source of recruitment and funding for terrorist groups.

Whether the Lebanese Media Group was recruiting for terrorist organizations does not negate the fact that government censorship must be closely scrutinized whenever it occurs. While the government must be free to protect the populace from terrorism, the courts have repeatedly upheld that the Constitution gives each American the right to decide what types of media are appropriate for private consumption. Although terrorism is illegal, American citizens must have the right to seek out information about terrorism if they are to make informed decisions. Eventually, the efforts of the government to use terrorism related laws to stifle the views of these media outlets were unsuccessful.

In the twenty-first century, the freedom of the press must also be extended to protect the digital press. The Internet has become the most important forum for public information, and it is currently threatened most by economic censorship. The government regulates media ownership in order to preserve media diversity by preventing the formation of monopolies or oligopolies. If a few major companies control Internet access, those companies could functionally limit the digital press by making it difficult to access sites that oppose the company's financial goals or viewpoints. Unfortunately many times the efforts of governments to combat monopoly also act more effectively to eliminate multiple points of view.

In 2005, the FCC removed some restrictions on media ownership, which made it possible for Internet conglomerates to begin creating an oligopoly. If this current trend continues, the Internet could soon face serious censorship issues, not because the information offered is dangerous or obscene, but because corporations want to control user's browsing habits in order to create a favorable economic environment and to support companies that offer financial incentives. The Future of the Free Press

The United States was built on the principle that a government should evolve through debate and popular participation. As the government acts to both protect and debate the extent of civil liberties, it is the responsibility of the citizenry to engage their leadership and oppose any infringement on constitutional rights. Citizens must be free to seek out any media, regardless of content, that they deem appropriate for entertainment, information, or education. Denying the rights of the consumer, in any area, is one of the hallmarks of authoritarianism.

The freedom of the press is currently under attack by persons and interest groups who wish to impose moral values through legislation, and by corporations who want to subvert the press for financial benefit. Free and informed choice in media enjoyment is a freedom that is guaranteed for each individual and must be diligently protected. The First Amendment guarantees the right to assemble and petition the government in support of measures including censorship, but also supports the right for every individual to make his or her own choices. Thankfully the courts to date have largely favored unfettered freedom of speech and the press over asserted justifications for censorship.

Ponder This

1. The author mentions several books that have been banned at various times in US history. Have you read any of these banned books? Do you agree or disagree with the decision to ban them?

 2. Do you agree with the author's argument that the USA Patriot Act poses a danger to the freedoms outlined in the Bill of Rights? Why or Why not?  3. In your opinion, can published material infringe on the rights of others or pose a threat to national security? Explain, using examples from the text.  4. Is the concept of "artistic value," as it is included in the legal definition of "obscenity" a subjective or objective concept?