Last Updated on May 5, 2015, by eNotes Editorial. Word Count: 1033
Plato (428-348 b.c.e.) was among the earliest proponents of censorship of the arts. His Laws (360 b.c.e.) argued for strict censorship of the literary and visual arts, particularly poetic metaphor, which he claimed interfered with achieving pure, conceptual truth.
Early Christianity took a similar position concerning mythology and art. The Roman Catholic church eventually uti-lized censorship to control philosophical, artistic, and religious truth generally. In 1521, Holy Roman Emperor Charles V issued the Edict of Worms, which prohibited the printing, dissemination, or reading of Martin Luther’s work. The Index librorum prohibitorum (1564), which was published by the Vatican, condemned specific books. The Index included such works as Galileo Galilei’s Dialogue Concerning the Two Chief World Systems (1632); Galileo was subsequently prosecuted for heresy during the Inquisition.
The scope of governmental censorship in Europe changed with the separation of powers between the church and state. When church courts were abolished and religious beliefs and morés were no longer subject to government control, censorship laws focused on political speech and writing. Works criticizing government practices ran the risk of prosecution for seditious libel in England; in France, Napoleon censored newspapers, publications, theatrical productions, and even private correspondence at will.
Politically motivated censorship became common in countries with totalitarian governments, from communism to dictatorships. The Communist Manifesto (1848) of Karl Marx and Friedrich Engels was banned throughout Europe, yet subsequently communist leaders from Lenin to Mao Zedong to Fidel Castro routinely practiced political censorship. In the Soviet Union, political censorship targeted the arts when it imposed the doctrine of “socialist realism” in 1932. The following year in Germany, Adolf Hitler organized nationwide book burnings in the name of the National Socialist government. Soviet-bloc writers, artists, and scientists have been imprisoned, exiled, and have had their work confiscated, when it has been deemed ideologically impure. Aleksandr Solzhenitsyn was arrested in 1945 for a pejorative remark about Joseph Stalin, spent eleven years in prison, and was finally exiled in 1974. In Muslim fundamentalist countries, religious censorship is the norm. For example, the publication of Salman Rushdie’s The Satanic Verses (1989) prompted Iran’s Ayatollah Khomeini to pronounce a fatwa, calling for Rushdie’s death and forcing the author into seclusion. Public political debate was given constitutional protection in some jurisdictions. Article 5 of the Basic Law of West Germany (1949) and Article 10 of the European Convention on Human Rights and Fundamental Freedoms (1953) specifically provided for free speech rights. The First Amendment to the U.S. Constitution, ratified in 1791, expressly prohibited Congress from making any law that abridged freedom of speech, press, religion, assembly, or the right to petition the government for redress of grievances. This right to free speech was not, however, absolute. The First Amendment has generated an enormous amount of litigation over its interpretation, particularly when it has collided with other rights in American society.
The degree to which the principle of free speech has been extended to the arts has been a matter of case law in all jurisdictions in which censorship has been scrutinized. Most troublesome for the courts has been the issue of the protection of allegedly obscene or pornographic material.
When free expression has come into conflict with potentially overriding public policy concerns, the courts have engaged in complex legal reasoning, often guided by philosophical and political arguments, in order to determine which interests dominate. Despite the evolution of cultural values, vestiges of several arguments remain common to most court deliberations of the free speech principle.
The argument from truth (also referred to as the libertarian argument) has been associated with the works of John Stuart Mill, but it was also articulated by John Milton two hundred years earlier. It emphasizes the importance of open discussion to the discovery of truth as a fundamental good and invaluable to the development of society. To some extent, this philosophy has been utilized by the U.S. Supreme Court, first in Justice Oliver Wendell Holmes’s now-famous dissent, in U.S. v. Abrams (1919), although its application is limited to speech with political, moral, aesthetic, or social content.
The argument from democracy views freedom of speech as a necessary component of any democratic society, in which public discussion is a political duty. Alexander Meiklejohn is one of its leading proponents, and similar theories are found in the works of Immanuel Kant, Baruch Spinoza, and David Hume. Meiklejohn considered the First Amendment a protection of the right of all citizens to discuss political issues and participate in government. Similarly, the German Constitutional Court and the European Court have recognized the importance of public debate on political questions. The argument from democracy has had little success in cases involving nonpolitical speech.
Unlike the previous two arguments, the argument from individuality is rights-based rather than consequentialist, recognizing the interest of the speaker, rather than society, as being paramount. It asserts that there is an individual right to freedom of speech, even though its exercise may conflict with the welfare of society. A free expression rationale based solely on individual fulfillment has raised philosophical and legal quandaries when it has come into conflict with other equally important liberties.
The argument from the paradox justifies censorship in cases in which freedom of speech is exercised by those who would use it to eliminate the free speech principle itself. For example, in England, it was used to set regulations restricting the activities of the National Front. In the United States, those seeking to prohibit the marching of the Nazi party in Skokie, Illinois, a predominantly Jewish suburb of Chicago, relied on this argument without success. The European Convention on Human Rights employed it as a fundamental consideration in Article 10, and it has been cited as authority for outlawing the German Communist Party.
The utilitarian argument suggests that the speech in question should be weighed for the balance of pleasure and pain. Its value is limited in assessing the extent of free speech protection contemplated by the U.S. Constitution, or other legislation with similar provisions.
The contractualist argument is a rights-based conception that excludes certain rights from state power, particularly the right to conscience. This argument asserts that the government violates this right when it superimposes its own value judgment on the speech at issue.