Since classical times, proponents of censorship have invoked religion or government to promote the repression of material that purportedly threatened public morals or controlling institutions. In this context, artistic expression has been targeted as potentially harmful by ancient philosophers, religious organizations, special-interest groups, and governmental bodies. Throughout the ages, the basic arguments for and against freedom of expression have remained remarkably the same.
Artistic freedom is protected in Europe in all countries adhering to the European Convention of Human Rights and Fundamental Freedoms. Article 10 guarantees everyone the right to freedom of expression. Any prior restraints on publication must be justified as necessary in a democratic society in order to constitute permissible restraints on the free expression principle.
West Germany’s Basic Law, Article 5, provides for freedom of expression rights, specifically designating art, science, research, and teaching. This freedom of expression is, however, subject to a fundamental right to dignity and is limited by the provisions of the general laws. As a result, the German Constitutional Court has balanced the interests of free expression and other specific laws in a manner similar to that used by the U.S. Supreme Court.
Great Britain does not constitutionally protect speech; instead, it relies upon common law and administrative agencies to resolve issues involving free expression. Courts often articulate a common law principle of freedom of speech to limit the scope of other rules that impinge on this freedom. Prior restraint by licensing of the press was abolished in 1694, but films remain subject to scrutiny under the Video Recordings Act of 1985.
In 1979, a special committee, popularly known as “The Williams Committee,” presented to the government its report containing studies and policies on obscenity and film censorship. Its findings, which recommended the restriction of material that is offensive to reasonable people, are frequently cited by the courts as well as by legal scholars.
Obscenity is prosecuted under the Obscene Publications Act of 1959, provided that the work is not justified as being for the public good or in the interest of science, literature, art, learning, or any other area of general concern. This exception to the obscenity law bears a strong resemblance to the balancing of interests tests utilized by American Supreme Court justices.
The constitutional guarantee of free speech was articulated in one simple phrase, yet its interpretation has been a matter of intricate, strenuous legal debate since its inception. When state laws are challenged as unconstitutional restraints on free speech, the ultimate determination of their legality rests with the U.S. Supreme Court. This court has established, on a case-by-case basis, both the scope and limitations of the free speech doctrine as well as its applicability to the states through the Fourteenth Amendment.
It has been argued that the drafters of the First Amendment contemplated only the protection of political speech. The path that the Supreme Court took in extending the free speech principle to the arts was long, arduous, and occasionally winding. Most instances of repression of the literary and visual arts have occurred under the guise of preservation of moral standards, pertaining to blasphemy and obscenity. Anti-vice movements and groups have operated on the basis of the premise that society needed protection from exposure to material that those movements and groups considered threatening to public morals. Although not necessarily acting under the color of state law, organizations such as the Legion of Decency, the New England Watch and Ward Society, and various independent groups constituting what became known as the “Moral Majority” have pressured municipalities and businesses into tacitly censoring material deemed offensive.
The Supreme Court began to address the extension of First Amendment protection beyond political speech in the 1940’s. Blasphemy prosecutions are all but obsolete in the United States, but it was not until 1952 that the Supreme Court ruled that a film (The Miracle) could not be censored for sacrilegious content. The Court also ruled that motion pictures were included within the free speech and press guaranty of the First and Fourteenth Amendments; the importance of films as organs of public opinion was not lessened by the fact that they were designed to entertain as well as inform.
Literary and visual arts in the form of erotica have been afforded the least First Amendment protection. Obscenity has always been criminally sanctioned and subjected to prior restraints in the United States, based on numerous policy considerations: that it corrupts the individual, that it leads to sex-related crime and illegal sexual activity, that it serves no socially redeeming purpose, and that it is lacking in any viable element of the search for truth.
Until 1934, American courts relied on the English common law “Hicklin Rule” when determining whether a given work was to be considered illegally obscene. Regina v. Hicklin (1868) defined the test of obscenity as whether the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. Thus, a publication was judged obscene if any isolated passage within it could corrupt the most susceptible person.
The “Hicklin Rule” was replaced by the “Ulysses standard,” first articulated in United States v. One Book Entitled Ulysses (1934), which required that the entire work, rather than an isolated passage, be evaluated for its libidinous effect. The Supreme Court continued to proclaim in Chaplinsky v. New Hampshire (1942) that there were certain well-defined and narrowly limited classes of speech that are of such slight social value as to be clearly outweighed by the social interest in order and morality. Such classes of speech included the lewd and obscene, the profane, the libelous, and insulting words that by their utterance inflict injury.
The first landmark case setting forth a standard for determining whether...
Barendt, Eric. Freedom of Speech. Oxford: Clarendon Press, 1985. A comparative treatment of the protection afforded speech and other forms of expression in the United States, the United Kingdom, Germany, and countries adhering to the European Convention.
Gerber, Albert B. Sex, Pornography, and Justice. New York: Lyle Stuart, 1965. A complete study of the topic from the Middle Ages to the twentieth century, including exhibits of the items that came before the courts. Updated supplements are available.
Hurwitz, Leon. Historical Dictionary of Censorship in the United States. Westport, Conn.: Greenwood Press, 1985. An overview of the types of expression subjected to repression in the United States, with cases, concepts, terms, and events listed alphabetically with brief summaries. An extensive bibliography and a table of cases make the book a useful reference tool.
Richards, David A. J. Toleration and the Constitution. New York: Oxford University Press, 1986. Provides a contractualist account of U.S. constitutional law regarding religious liberty, free speech, and constitutional protection of privacy.
Schauer, Frederick. Free Speech: A Philosophical Enquiry. Cambridge, England: Cambridge University Press, 1982. Draws extensively on legal rules and examples to present the author’s political philosophy as well as his analysis of the right to free speech principle and the variety of communication that it includes.