censorship control and freedom of speech

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15.4 Censorship and Freedom of Speech

Learning objectives.

• Explain the FCC’s process of classifying material as indecent, obscene, or profane.
• Describe how the Hay’s Code affected 20th-century American mass media.

Figure 15.3

Attempts to censor material, such as banning books, typically attract a great deal of controversy and debate.

Timberland Regional Library – Banned Books Display At The Lacey Library – CC BY-NC-ND 2.0.

To fully understand the issues of censorship and freedom of speech and how they apply to modern media, we must first explore the terms themselves. Censorship is defined as suppressing or removing anything deemed objectionable. A common, everyday example can be found on the radio or television, where potentially offensive words are “bleeped” out. More controversial is censorship at a political or religious level. If you’ve ever been banned from reading a book in school, or watched a “clean” version of a movie on an airplane, you’ve experienced censorship.

Much as media legislation can be controversial due to First Amendment protections, censorship in the media is often hotly debated. The First Amendment states that “Congress shall make no law…abridging the freedom of speech, or of the press (Case Summaries).” Under this definition, the term “speech” extends to a broader sense of “expression,” meaning verbal, nonverbal, visual, or symbolic expression. Historically, many individuals have cited the First Amendment when protesting FCC decisions to censor certain media products or programs. However, what many people do not realize is that U.S. law establishes several exceptions to free speech, including defamation, hate speech, breach of the peace, incitement to crime, sedition, and obscenity.

Classifying Material as Indecent, Obscene, or Profane

To comply with U.S. law, the FCC prohibits broadcasters from airing obscene programming. The FCC decides whether or not material is obscene by using a three-prong test.

Obscene material:

• causes the average person to have lustful or sexual thoughts;
• depicts lawfully offensive sexual conduct; and
• lacks literary, artistic, political, or scientific value.

Material meeting all of these criteria is officially considered obscene and usually applies to hard-core pornography (Federal Communications Commission). “Indecent” material, on the other hand, is protected by the First Amendment and cannot be banned entirely.

Indecent material:

• contains graphic sexual or excretory depictions;
• dwells at length on depictions of sexual or excretory organs; and
• is used simply to shock or arouse an audience.

Material deemed indecent cannot be broadcast between the hours of 6 a.m. and 10 p.m., to make it less likely that children will be exposed to it (Federal Communications Commission).

These classifications symbolize the media’s long struggle with what is considered appropriate and inappropriate material. Despite the existence of the guidelines, however, the process of categorizing materials is a long and arduous one.

There is a formalized process for deciding what material falls into which category. First, the FCC relies on television audiences to alert the agency of potentially controversial material that may require classification. The commission asks the public to file a complaint via letter, e-mail, fax, telephone, or the agency’s website, including the station, the community, and the date and time of the broadcast. The complaint should “contain enough detail about the material broadcast that the FCC can understand the exact words and language used (Federal Communications Commission).” Citizens are also allowed to submit tapes or transcripts of the aired material. Upon receiving a complaint, the FCC logs it in a database, which a staff member then accesses to perform an initial review. If necessary, the agency may contact either the station licensee or the individual who filed the complaint for further information.

Once the FCC has conducted a thorough investigation, it determines a final classification for the material. In the case of profane or indecent material, the agency may take further actions, including possibly fining the network or station (Federal Communications Commission). If the material is classified as obscene, the FCC will instead refer the matter to the U.S. Department of Justice, which has the authority to criminally prosecute the media outlet. If convicted in court, violators can be subject to criminal fines and/or imprisonment (Federal Communications Commission).

Each year, the FCC receives thousands of complaints regarding obscene, indecent, or profane programming. While the agency ultimately defines most programs cited in the complaints as appropriate, many complaints require in-depth investigation and may result in fines called notices of apparent liability (NAL) or federal investigation.

Table 15.1 FCC Indecency Complaints and NALs: 2000–2005

Violence and Sex: Taboos in Entertainment

Although popular memory thinks of old black-and-white movies as tame or sanitized, many early filmmakers filled their movies with sexual or violent content. Edwin S. Porter’s 1903 silent film The Great Train Robbery , for example, is known for expressing “the appealing, deeply embedded nature of violence in the frontier experience and the American civilizing process,” and showcases “the rather spontaneous way that the attendant violence appears in the earliest developments of cinema (Film Reference).” The film ends with an image of a gunman firing a revolver directly at the camera, demonstrating that cinema’s fascination with violence was present even 100 years ago.

Porter was not the only U.S. filmmaker working during the early years of cinema to employ graphic violence. Films such as Intolerance (1916) and The Birth of a Nation (1915) are notorious for their overt portrayals of violent activities. The director of both films, D. W. Griffith, intentionally portrayed content graphically because he “believed that the portrayal of violence must be uncompromised to show its consequences for humanity (Film Reference).”

Although audiences responded eagerly to the new medium of film, some naysayers believed that Hollywood films and their associated hedonistic culture was a negative moral influence. As you read in Chapter 8 “Movies” , this changed during the 1930s with the implementation of the Hays Code. Formally termed the Motion Picture Production Code of 1930, the code is popularly known by the name of its author, Will Hays, the chairman of the industry’s self-regulatory Motion Picture Producers and Distributors Association (MPPDA), which was founded in 1922 to “police all in-house productions (Film Reference).” Created to forestall what was perceived to be looming governmental control over the industry, the Hays Code was, essentially, Hollywood self-censorship. The code displayed the motion picture industry’s commitment to the public, stating:

Motion picture producers recognize the high trust and confidence which have been placed in them by the people of the world and which have made motion pictures a universal form of entertainment…. Hence, though regarding motion pictures primarily as entertainment without any explicit purposes of teaching or propaganda, they know that the motion picture within its own field of entertainment may be directly responsible for spiritual or moral progress, for higher types of social life, and for much correct thinking (Arts Reformation).

Among other requirements, the Hays Code enacted strict guidelines on the portrayal of violence. Crimes such as murder, theft, robbery, safecracking, and “dynamiting of trains, mines, buildings, etc.” could not be presented in detail (Arts Reformation). The code also addressed the portrayals of sex, saying that “the sanctity of the institution of marriage and the home shall be upheld. Pictures shall not infer that low forms of sex relationship are the accepted or common thing (Arts Reformation).”

Figure 15.4

As the chairman of the Motion Picture Producers and Distributors Association, Will Hays oversaw the creation of the industry’s self-censoring Hays Code.

Wikimedia Commons – public domain.

As television grew in popularity during the mid-1900s, the strict code placed on the film industry spread to other forms of visual media. Many early sitcoms, for example, showed married couples sleeping in separate twin beds to avoid suggesting sexual relations.

By the end of the 1940s, the MPPDA had begun to relax the rigid regulations of the Hays Code. Propelled by the changing moral standards of the 1950s and 1960s, this led to a gradual reintroduction of violence and sex into mass media.

Ratings Systems

As filmmakers began pushing the boundaries of acceptable visual content, the Hollywood studio industry scrambled to create a system to ensure appropriate audiences for films. In 1968, the successor of the MPPDA, the Motion Picture Association of America (MPAA), established the familiar film ratings system to help alert potential audiences to the type of content they could expect from a production.

Film Ratings

Although the ratings system changed slightly in its early years, by 1972 it seemed that the MPAA had settled on its ratings. These ratings consisted of G (general audiences), PG (parental guidance suggested), R (restricted to ages 17 or up unless accompanied by a parent), and X (completely restricted to ages 17 and up). The system worked until 1984, when several major battles took place over controversial material. During that year, the highly popular films Indiana Jones and the Temple of Doom and Gremlins both premiered with a PG rating. Both films—and subsequently the MPAA—received criticism for the explicit violence presented on screen, which many viewers considered too intense for the relatively mild PG rating. In response to the complaints, the MPAA introduced the PG-13 rating to indicate that some material may be inappropriate for children under the age of 13.

Another change came to the ratings system in 1990, with the introduction of the NC-17 rating. Carrying the same restrictions as the existing X rating, the new designation came at the behest of the film industry to distinguish mature films from pornographic ones. Despite the arguably milder format of the rating’s name, many filmmakers find it too strict in practice; receiving an NC-17 rating often leads to a lack of promotion or distribution because numerous movie theaters and rental outlets refuse to carry films with this rating.

Television and Video Game Ratings

Regardless of these criticisms, most audience members find the rating system helpful, particularly when determining what is appropriate for children. The adoption of industry ratings for television programs and video games reflects the success of the film ratings system. During the 1990s, for example, the broadcasting industry introduced a voluntary rating system not unlike that used for films to accompany all TV shows. These ratings are displayed on screen during the first 15 seconds of a program and include TV-Y (all children), TV-Y7 (children ages 7 and up), TV-Y7-FV (older children—fantasy violence), TV-G (general audience), TV-PG (parental guidance suggested), TV-14 (parents strongly cautioned), and TV-MA (mature audiences only).

Table 15.2 Television Ratings System

Source: http://www.tvguidelines.org/ratings.htm

At about the same time that television ratings appeared, the Entertainment Software Rating Board was established to provide ratings on video games. Video game ratings include EC (early childhood), E (everyone), E 10+ (ages 10 and older), T (teen), M (mature), and AO (adults only).

Table 15.3 Video Game Ratings System

Source: http://www.esrb.org/ratings/ratings_guide.jsp

Even with these ratings, the video game industry has long endured criticism over violence and sex in video games. One of the top-selling video game series in the world, Grand Theft Auto , is highly controversial because players have the option to solicit prostitution or murder civilians (Media Awareness). In 2010, a report claimed that “38 percent of the female characters in video games are scantily clad, 23 percent baring breasts or cleavage, 31 percent exposing thighs, another 31 percent exposing stomachs or midriffs, and 15 percent baring their behinds (Media Awareness).” Despite multiple lawsuits, some video game creators stand by their decisions to place graphic displays of violence and sex in their games on the grounds of freedom of speech.

Key Takeaways

• The U.S. Government devised the three-prong test to determine if material can be considered “obscene.” The FCC applies these guidelines to determine whether broadcast content can be classified as profane, indecent, or obscene.
• Established during the 1930s, the Hays Code placed strict regulations on film, requiring that filmmakers avoid portraying violence and sex in films.
• After the decline of the Hays Code during the 1960s, the MPAA introduced a self-policed film ratings system. This system later inspired similar ratings for television and video game content.

Look over the MPAA’s explanation of each film rating online at http://www.mpaa.org/ratings/what-each-rating-means . View a film with these requirements in mind and think about how the rating was selected. Then answer the following short-answer questions. Each response should be a minimum of one paragraph.

• Would this material be considered “obscene” under the Hays Code criteria? Would it be considered obscene under the FCC’s three-prong test? Explain why or why not. How would the film be different if it were released in accordance to the guidelines of the Hays Code?
• Do you agree with the rating your chosen film was given? Why or why not?

Arts Reformation, “The Motion Picture Production Code of 1930 (Hays Code),” ArtsReformation, http://www.artsreformation.com/a001/hays-code.html .

Case Summaries, “First Amendment—Religion and Expression,” http://caselaw.lp.findlaw.com/data/constitution/amendment01/ .

Federal Communications Commission, “Obscenity, Indecency & Profanity: Frequently Asked Questions,” http://www.fcc.gov/eb/oip/FAQ.html .

Film Reference, “Violence,” Film Reference, http://www.filmreference.com/encyclopedia/Romantic-Comedy-Yugoslavia/Violence-BEGINNINGS.html .

Media Awareness, Media Issues, “Sex and Relationships in the Media,” http://www.media-awareness.ca/english/issues/stereotyping/women_and_girls/women_sex.cfm .

Media Awareness, Media Issues, “Violence in Media Entertainment,” http://www.media-awareness.ca/english/issues/violence/violence_entertainment.cfm .

Understanding Media and Culture Copyright © 2016 by University of Minnesota is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

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Home » Articles » Topic » Issues » Issues Related to Speech, Press, Assembly, or Petition » Censorship

Written by Elizabeth R. Purdy, published on August 8, 2023 , last updated on March 25, 2024

The First Amendment protects American people from government censorship. But the First Amendment's protections are not absolute, leading to Supreme Court cases involving the question of what is protected speech and what is not. On the issue of press freedoms, the Court has been reluctant to censor publication -- even of previously classified material. In the landmark case New York Times v. United States, the Court overturned a court order stopping the newspaper from continuing to print excerpts from the "Pentagon Papers", saying such prior restraint was unconstitutional. In this June 30, 1971 file picture, workers in the New York Times composing room in New York look at a proof sheet of a page containing the secret Pentagon report on Vietnam. (AP Photo/Marty Lederhandler, reprinted with permission from The Associated Press.)

Censorship occurs when individuals or groups try to prevent others from saying, printing, or depicting words and images.

Censors seek to limit freedom of thought and expression by restricting spoken words, printed matter, symbolic messages, freedom of association, books, art, music, movies, television programs, and Internet sites. When the government engages in censorship, First Amendment freedoms are implicated.

Private actors — for example, corporations that own radio stations — also can engage in forms of censorship, but this presents no First Amendment implications as no governmental, or state, action is involved.

Various groups have banned or attempted to  ban books  since the invention of the printing press. Censored or challenged works include the Bible, The American Heritage Dictionary, The Autobiography of Benjamin Franklin, Bury My Heart at Wounded Knee, To Kill A Mockingbird, and the works of children’s authors J. K. Rowling and Judy Blume.

The First Amendment guarantees freedom of speech and press, integral elements of democracy. Since Gitlow v. New York (1925), the Supreme Court has applied the First Amendment freedoms of speech and press to the states through the due process clause of the Fourteenth Amendment.

The Supreme Court ruled in Hazelwood School District v. Kuhlmeier (1988) that school officials have broad power of censorship over student newspapers. In this photo, Tammy Hawkins, editor of the Hazelwood East High School newspaper, Spectrum holds a copy of the paper, Jan. 14, 1988. (AP Photo/James A. Finley, used with permission from the Associated Press)

Not all speech is protected by the First Amendment

Freedom of speech and press are not, however, absolute. Over time, the Supreme Court has established guidelines, or tests, for defining what constitutes protected and unprotected speech. Among them are:

• the  bad tendency test , established in  Abrams v. United States  (1919),
• the  clear and present danger test  from  Schenck v. United States  (1919),
• the  preferred freedoms doctrine  of  Jones v. City of Opelika  (1943), and
• the  strict scrutiny , or  compelling state interest , test set out in Korematsu v. United States (1944).

Justice Oliver Wendell Holmes Jr.  offered the classic example of the line between protected and unprotected speech in Schenck when he observed that shouting “Fire!” in a theater where there is none is not protected speech. Categories of unprotected speech also include:

• libel and slander ,
• “ fighting words ,”
• obscenity , and

Libel and slander when it comes to public officials

Determining when defamatory words may be censored has proved to be difficult for the Court, which has allowed greater freedom in remarks made about public figures than those concerning private individuals.

In  New York Times Co. v. Sullivan  (1964), the Court held that words can be libelous (written) or slanderous (spoken) in the case of public officials only if they involve  actual malice  or publication with knowledge of falsehood or reckless disregard for the truth. Lampooning has generally been protected by the Court.

In  Hustler Magazine v. Falwell  (1988), for example, the Court held that the magazine had not slandered Rev. Jerry Falwell by publishing an outrageous “advertisement” containing a caricature of him because it was presented as parody rather than truth.

On the issue of press freedoms, the Court has been reluctant to censor publication of even previously classified materials, as in  New York Times v. United States (1971) — the  Pentagon Papers  case — unless the government can provide an overwhelming reason for such prior restraint.

The Court has accepted some censorship of the press when it interferes with the right to a fair trial, as exhibited in  Estes v. Texas  (1965) and  Sheppard v. Maxwell  (1966), but the Court has been reluctant to uphold  gag orders , as in the case of  Nebraska Press Association v. Stuart  (1976).

In general, rap and hard-core rock-n-roll have faced more censorship than other types of music. In this photo, rap artists DJ Jazzy Jeff (Jeff Townes), left, and The Fresh Prince (Will Smith) are seen backstage at the American Music Awards ceremony in Los Angeles, Calif., Monday, January 31, 1989, after winning in the category Favorite Rap Artist and Favorite Rap Album. (AP Photo/Lennox McLendon, used with permission from the Associated Press)

When words incite “breach of peace”

In  Chaplinsky v. New Hampshire  (1942), the Supreme Court defined “ fighting words ” as those that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Racial epithets and ethnic derisions have traditionally been unprotected under the umbrella of “fighting words.”

Since the backlash against so-called political correctness, however, liberals and conservatives have fought over what derogatory words may be censored and which are protected by the First Amendment.

Determining whether something is obscene

In its early history, the Supreme Court left it to the states to determine whether materials were obscene.

Acting on its decision in  Gitlow v. New York (1925)  to apply the First Amendment to limit state action, the Warren Court subsequently began dealing with these issues in the 1950s on a case-by-case basis and spent hours examining material to determine obscenity.

In  Miller v. California  (1973), the Burger Court finally adopted a test that elaborated on the standards established in  Roth v. United States (1957) . Miller defines obscenity by outlining three conditions for jurors to consider:

• “(a) whether the ‘average person, applying contemporary community standards,’ would find that the work taken as a whole appeals to the prurient interest;
• (b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by applicable state law; and
• (c) whether the work taken as a whole lacks serious literary, artistic, political, or scientific value.”

Proposals to  censor music  date back to Plato’s Republic. In the 1970s, some individuals thought anti-war songs should be censored. In the 1980s, the emphasis shifted to prohibiting sexual and violent lyrics. The Federal Communications Commission (FCC) also sought to fine radio stations for the broadcast of indecent speech. In general,  rap and hard-core rock-n-roll  have faced more censorship than other types of music. Caution must be used in this area to distinguish between governmental censorship and private censorship.

Courts have not interpreted the First Amendment  rights of minors, especially in school settings , to be as broad as those of adults; their speech in school newspapers or in speaking to audiences of their peers may accordingly be censored.

Advancing technology has opened up new avenues in which access to a variety of materials, including obscenity, is open to minors, and Congress has been only partially successful in restricting such access. Parental controls on televisions and computers have provided parents and other adults with some monitoring ability, but no methods are 100 percent effective.

Censorship often increases in wartime to tamp down anti-government speech. In this 1942 photo, W. Holden White, clips items from U.S. newspapers at the Washington, D.C. headquarters of the office of censorship to determine newspaper compliance with censorship rules prescribed by the office. (AP Photo, used with permission from the Associated Press)

Wrestling with sedition and seditious speech

In general, sedition is defined as trying to overthrow the government with intent and means to bring it about; the Supreme Court, however, has been divided over what constitutes intent and means.

In general, the government has been less tolerant of perceived sedition in times of war than in peace. The first federal attempt to censor seditious speech occurred with the passage of the Alien and  Sedition Acts of 1798  under President John Adams.

These acts made it a federal crime to speak, write, or print criticisms of the government that were false, scandalous, or malicious. Thomas Jefferson compared the acts to witch hunts and pardoned those convicted under the statues when he succeeded Adams.

Laws attempting to reduce anti-government speech

During World War I, Congress passed the  Espionage Act of 1917  and the  Sedition Act of 1918 , and the Court spent years dealing with the aftermath.

In 1919 in  Schenck , the government charged that encouraging draftees not to report for duty in World War I constituted sedition. In this case, the court held that Schenck’s actions were, indeed, seditious because, in the words of Justice Holmes, they constituted a “clear and present danger” of a “substantive evil,” defined as attempting to overthrow the government, inciting riots, and destruction of life and property.

In the 1940s and 1950s,  World War II  and the rise of communism produced new limits on speech, and  McCarthyism  destroyed the lives of scores of law-abiding suspected communists.

The  Smith Act of 1940  and the Internal Security Act of 1950, also known as the  McCarran Act , attempted to stamp out communism in the country by establishing harsh sentences for advocating the use of violence to overthrow the government and making the Communist Party of the United States illegal.

After the al-Qaida attacks of September 11, 2001, and passage of the  USA Patriot Act , the United States faced new challenges to civil liberties. As a means of fighting terrorism, government agencies began to target people openly critical of the government. The arrests of individuals suspected of knowing people considered terrorists by the government was in tension with, if not violation of, the First Amendment’s freedom of association. These detainees were held without benefit of counsel and other constitutional rights.

The George W. Bush administration and the courts have battled over the issues of  warrantless wiretaps , military tribunals, and suspension of various rights guaranteed by the Constitution and the Geneva Conventions, which stipulate acceptable conditions for holding prisoners of war.

Certain forms of speech are protected from censure by governments. For instance, the First Amendment protects pure speech, defined as that which is merely expressive, descriptive, or assertive. Less clearly defined are those forms of speech referred to as speech plus, that is, speech that carries an additional connotation, such as symbolic speech. In Tinker v. Des Moines Independent Community School District (1969), the Court upheld the right of middle and high school students to wear symbolic black armbands to school to protest U.S. involvement in Vietnam. In this photo, Debbie Wallace, left, and Phyllis Sweigert, 17-year-old seniors at suburban Euclid High School in Cleveland, Ohio, display armbands they wore to school in mourning for the dead in Vietnam, Dec. 10, 1965. The girls were suspended from school until Monday. (AP Photo/Julian C. Wilson, used with permission from the Associated Press)

Expressive and symbolic speech

Certain forms of speech are protected from censure by governments. For instance, the First Amendment protects pure speech, defined as that which is merely expressive, descriptive, or assertive. The Court has held that the government may not suppress speech simply because it thinks it is offensive. Even presidents are not immune from being criticized and ridiculed.

Less clearly defined are those forms of speech referred to as speech plus, that is, speech that carries an additional connotation. This includes  symbolic speech , in which meanings are conveyed without words.

In T inker v. Des Moines Independent Community School District  (1969), the Court upheld the right of middle and high school students to wear black armbands to school to protest U.S. involvement in Vietnam.

One of the most controversial examples of symbolic speech has produced a series of  flag desecration  cases, including  Spence v. Washington  (1974),  Texas v. Johnson  (1989), and  United States v. Eichman  (1990).

Despite repeated attempts by Congress to make it illegal to burn or deface the flag, the Court has held that such actions are protected. Writing for the 5-4 majority in Texas v. Johnson, Justice William J. Brennan Jr. stated, “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

When speech turns into other forms of action, constitutional protections are less certain.

In  R.A.V. v. St. Paul  (1992), the Court overturned a local hate crime statute that had been used to convict a group of boys who had burned a cross on the lawn of a black family living in a predominately white neighborhood.

The Court qualified this opinion in  Virginia v. Black  (2003), holding that the First Amendment did not protect such acts when their purpose was intimidation.

This article was originally published in 2009. Elizabeth Purdy, Ph.D., is an independent scholar who has published articles on subjects ranging from political science and women’s studies to economics and popular culture.

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Censorship Is in Session: The Free Speech Rights of America’s Educators

By Rose Dallimore

Schools and universities throughout the United States have long been battlefields for the First Amendment, even following the seminal 1969 Tinker v. Des Moines case , which codified students’ Free Speech rights. 

In 1965, 13-year-old Mary Beth Tinker — whom the Free Speech Project hosted last year — and five other students were suspended from their Iowa school after wearing black armbands to protest the Vietnam War. The students subsequently filed a First Amendment lawsuit, winning at the Supreme Court four years later in a 7-2 decision. The majority opinion , written by Justice Abe Fortas, famously declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Since the Tinker decision, cases involving the Free Speech rights of students have continued to emerge, from censored student newspapers to rejected graduation speeches. 

Yet, in the debate over the Free Speech rights of individuals in high schools and on college campuses, one piece often goes overlooked: the rights of educators. America’s teachers are ground zero in the new wave of dialogue; understanding the delicate nature of their status is essential to enabling productive discourse. Charged with shaping the next generation, teachers work with a vulnerable and impressionable population, so concerns over manipulation or indoctrination can be valid. However, teachers are also citizens with inalienable rights to express their beliefs. 

Denying teachers the right to dissent against their employers, their government, or their society is not only unconstitutional — it also reduces the value of discourse in the minds of students. If facilitators of classroom debate are not allowed to express themselves freely, students may be less likely to voice their own beliefs. An essential component of Free Speech for educators is the concept of academic freedom , which is the “idea that the free exchange of ideas on campus is essential to good education,” according to the American Federation of Teachers. Both students and teachers benefit from being allowed to express controversial viewpoints within and outside of the classroom, as long as educators are practicing academic integrity and providing context for their expression.  

Educators’ expression is constitutionally protected — like any citizen’s — but their speech is certainly not insulated from the court of public opinion. Once cases of alleged censorship do make their way to the courts, educators’ legal protections come into question, often depending on two key factors: whether they were acting in their role as an instructor, and whether their employer is a public, private, or parochial institution.

The establishment clause requires a separation of church and state, and courts have thus determined that public school educators working in their professional capacity must not bring their religious biases into classrooms. For example, when a football coach at a public high school in Washington state repeatedly prayed on the field and allegedly asked players to pray with him, the school district removed him from his position, and the U.S. Court of Appeals for the 9th Circuit endorsed that decision. Private and parochial schools, conversely, are bound only by contracts with their students. Still, a significant gray area around acceptable religious language and expression often emerges. 

The rules of teachers’ free speech also vary by district and situation. Courts weigh the propensity of teachers’ expression to cause harm to the learning environment with their First Amendment rights on a case-by-case basis, according to a report by the ACLU of Washington state on the rights of public school teachers.

If a teacher expresses a controversial or offensive viewpoint while acting in a professional capacity, that speech may not be protected, regardless of the school’s private or public status. Students often feel obligated to stay in class, pay attention, and absorb what instructors say; they are unlikely to walk out or to argue with their teacher, for fear of academic or disciplinary retribution.

In this way, educators have a powerful advantage over their students. The classroom dynamic may disarm students of a less-discussed implicit constitutional right: the right not to listen to speech. When people are not afforded the ability to disagree with or ignore speech, they may be considered a captive audience, in which they are forced into compelled listening and actively prevented from dissenting. While this element of the First Amendment has yet to be extensively clarified, legal scholars argue that “free listening” is an implicit dimension of the constitutional right to Free Speech. 

Sometimes, offensive expression directly within the educational context threatens the stability of the learning environment, as in the case of a Middlebury chemistry professor who, in an exam question, asked students to calculate the lethal dose of gas in Nazi gas chambers. In referencing a deeply personal atrocity for many of his students, the professor sparked distraction and disgust in his classroom. 

Politically charged commentary in the classroom, when students are made to feel uncomfortable or offended, such as in the case of the California teacher fired for his anti-military comments , can also be controversial. This speech may not have been directly hateful and did not incite violence, but the school district considered the resultant dynamic between students and teacher to be inappropriate.

In another case of personal political beliefs entering the classroom, an educator at the University of Southern Maine was fired for offering students credit for political lobbying. The university believed that she was abusing her professorial role to force students into political expression. In such a case, the educator did not have protected speech in the classroom to the degree that she could have outside it. These two examples highlight the complex relationship between power and Free Speech as it relates to personal views: While teachers have the right to express their beliefs, the lack of clarity in the context and the degree to which they bring personal beliefs into the classroom may lead to uncomfortable dynamics between them and their students. 

The personal expression of educators, especially on the internet, is not free from scrutiny or protected expression outside the classroom either. For instance, a Florida teacher was pressured to leave her position after details surfaced about her involvement with a white nationalist podcast, although it was not entirely clear whether she brought these views into her classroom. Another case, in which a professor at California State University celebrated Barbara Bush’s death on Twitter, also drew significant publicity, but the university decided against disciplining her. 

These instances reveal that questions of Free Speech are not easily answered, especially when the role of a citizen and the role of an educator involve different responsibilities. Educating both teachers and students on legal precedents of speech for educators, discussing in-class community guidelines for discourse and expression, and fostering well-intentioned debate on sensitive topics will help clarify and reinforce the Free Speech rights of America’s educators. 

The balance between academic freedom and restrictions placed by administrations and civil society on protected Free Speech is delicate. The boundaries are tested by the aforementioned cases, and rightfully so. Teachers facilitate debate and raise pressing, often uncomfortable, questions about politics and society — an example of the necessity of free expression in creating a more informed, empathetic society. U.S. educators lead the Free Speech discussion in the next generation of opinionated, passionate voices and must be supported in promoting the First Amendment to the utmost of our country’s legal and social abilities.

Rose Dallimore is a sophomore in the Georgetown University School of Foreign Service, majoring in international politics, with a minor in theology. She is from New York City and Chattanooga, Tennessee. Outside of FSP, Rose is interested in creative writing and public service, diplomacy, and foreign policy.

The Palgrave Encyclopedia of Global Security Studies pp 1–4 Cite as

Freedom of expression in the Digital Age: Internet Censorship

• Md Nurul Momen 4  
• Living reference work entry
• First Online: 08 May 2020

261 Accesses

Freedom of expression includes freedom to hold opinions and ideas and to receive and impart information without restrictions by state authorities.

Introduction

Internet is regarded as an important issue that shapes free expression in today’s volatile nature of human rights world (Momen 2020 ). In the digital age, authoritarian governments in the world always attempt to undermine political and social movement through the complete shutdown of the Internet or providing partial access to it. It is also found that the restrictions on freedom of expression on the Internet are through surveillance and monitoring the online activities. In response to any kind of political and social movement, authoritarian governments across the border occasionally shut down many websites, along with the arrest of several anti-government bloggers and political activists. However, under the international legal instruments, for instance, Universal Declaration of Human Rights (UDHR), denial of the...

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Md Nurul Momen

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Momen, M.N. (2019). Freedom of expression in the Digital Age: Internet Censorship. In: Romaniuk, S., Thapa, M., Marton, P. (eds) The Palgrave Encyclopedia of Global Security Studies. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-74336-3_31-1

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Threats to freedom of press: Violence, disinformation & censorship

The free flow of ideas: Freedom of the press, the journalists on the frontline

The way we see the world and act on it depends on the information we have. This is why freedom of expression and freedom of the press are fundamental rights, and the free flow of ideas is a key driver of vibrant societies and human progress. UNESCO works to reinforce the tools, skills and conditions that make these rights real.

Peter R. De Vries was on his way to a car park, walking past crowds of people enjoying post-work drinks in the heart of Amsterdam. It was the early evening of 6 July 2021 and the veteran crime journalist had just left a nearby TV studio, where he had appeared as a talk show guest. 

De Vries was a household name in the Netherlands, where his own TV show had run for 17 years, working with crime victims’ families, pursuing unsolved cases and exposing miscarriages of justice. The journalist had recently refused police protection after receiving death threats. A year earlier, he had agreed to act as an adviser to the key prosecution witness against the suspected head of a cocaine trafficking gang. 

As De Vries walked to his car, several bullets were fired at him. He died from his injuries nine days later. 

Threats and violence against journalists

De Vries’ death prompted outpourings of condemnation and anger in Europe. Yet, many journalists and reporters around the world today risk their lives to uncover the truth. Every four days a journalist is killed in the world. In 2020 alone, according to UNESCO, 62 journalists were killed just for doing their jobs. Between 2006 and 2020, over 1,200 media professionals lost their lives in the same way. In nine out of ten cases, the killers go unpunished.

In many countries investigating corruption, trafficking, human rights violations, and political or environmental issues puts journalists’ lives at risk.

62 journalists killed in 2020,

just for doing their jobs: UNESCO

Crimes against journalists have an enormous impact on society as a whole, because they prevent people from making informed decisions.

To help create the kind of environment journalists need to perform their vital work, UNESCO has set up several initiatives, including a global plan of action for the safety of journalists, in order to support Member States to establish or improve mechanisms for prevention, protection and prosecution to bring justice to cases of murdered journalists. One key aspect of UNESCO’s work is first and foremost to report and publicly condemn all cases of killing of journalists. UNESCO also produces training materials and best practices to help improve journalists’ skills and knowledge on international standards for freedom of expression, investigative journalism and reporting on conflicts.

For the past 40 years, UNESCO’s International Programme for the Development of Communication (IPDC)   has focused on targeting the most pressing issues concerning communication development around the world. It helps keep journalists safe, supports the development of media in countries where it is most needed, promotes freedom of expression and public access to information.

UNESCO's initiatives

Fostering Freedom of Expression

Women journalists facing risks and abuse

Across the world, journalists face countless threats every day, ranging from kidnapping, torture and arbitrary detention to disinformation campaigns and harassment, especially on social media. Women journalists are at particular risk. 

According to UNESCO research, 73 per cent of women journalists surveyed said they had been threatened, intimidated and insulted online in connection with their work. Often, the failure to investigate and address online attacks has real-life consequences for women journalists, affecting their mental and physical health. In some cases, online threats can escalate to physical violence and even murder, as the murder of Maltese journalist Daphne Caruana Galizia in 2017 demonstrated.

#JournalistsToo:

For many years, Caruana Galizia had been the most prominent investigative journalist in Malta. She had worked as a columnist and editor in various newspapers. She later set up the website Running Commentary, where she published some of her most significant investigative journalism, exposing tax abuse and corruption in Malta and abroad. Harassment, threats and attempts to silence the journalist had been a constant presence throughout her career.

Online threats and violence against women journalists are designed to belittle, humiliate and shame them, as well as induce fear, silence and discredit them professionally. To respond to increasing threats against women journalists, UNESCO has published a research paper aimed at associations, politicians and governments: The Chilling . It seeks to promote discussion about effective legislative and organizational initiatives that are designed to protect women journalists.

Training judges and prosecutors to defend press freedom

Caruana Galizia’s biggest fear was that her example of physical threats, online harassments and libel lawsuits might discourage other journalists from speaking out. At the time of her death, Caruana Galizia was facing 48 libel suits. Award-winning journalist and Nobel Peace Prize recipient Maria Ressa also faced several lawsuits before being found guilty of libel in the Philippines in 2020.

What you are seeing is death by a thousand cuts for press freedom and democracy. It joins the messaging that was pushed out on social media that “journalists equal criminals.

Ressa and a former colleague at the news site she founded, Rappler, were convicted of cyber libel by a court in Manila after they published an article linking a businessman to illegal activities. During her career, Ressa has been arrested and has been subject to a sustained campaign of gendered online abuse, threats and harassment, which at one point, resulted in her receiving an average of over 90 hateful messages an hour on Facebook.

Often based on meritless or exaggerated claims, these lawsuits are brought in order to pressure a journalist or human rights defender, rather than to vindicate a right.

That is why judges and prosecutors play an important role in protecting journalists from threats and harassment, as well as promoting prompt and effective criminal proceedings when attacks occur.

When attacks against journalists go unpunished, the legal system and safety frameworks have failed everyone.

In recent years, UNESCO has trained nearly 23,000 judicial officials, including judges, prosecutors and lawyers, through several workshops on media and journalist law, training courses and online webinars, in partnership with universities and educational institutions like the Knight Center for Journalism at the University of Austin, Texas (USA). Training focuses on international standards related to freedom of expression and the safety of journalists, placing a particular focus on issues of impunity. In 2021, UNESCO’s online conference The role of the judiciary and international cooperation to foster safety of journalists – What works? explored effective ways in which judges, prosecutors and lawyers, as well as regional human rights courts and judicial training institutes, can combat impunity for crimes against journalists.

The fight against misinformation and censorship

The threats to freedom of expression and democracy also come from misinformation and censorship. The COVID-19 pandemic and the ensuing pandemic of misinformation have demonstrated that access to facts and science can be a matter of life and death.  In the first three months of 2020, almost 6,000 people around the world were hospitalized because of coronavirus misinformation, according to a paper published in the American Journal of Tropical Medicine and Hygiene . During this period, researchers say at least 800 people may have died due to misinformation related to COVID-19.

In May 2020, at the very beginning of the pandemic, the Knight Center, with the support of UNESCO and the World Health Organization (WHO), launched an online course on how to empower journalists, communication workers and content creators countering the phenomenon of disinformation related to the pandemic. The course attracted nearly 9,000 students from 162 countries. ‘2020 was surely the most important year for the fact-checking community,’ said journalist Cristina Tardáguila, who was the course instructor and has been involved in global initiatives against disinformation as associate director of the International Fact-Checking Network (IFCN).

Journalism in a Pandemic: Covering COVID-19 Now and in the Future is an online self-directed course available in eight languages:  Arabic ,  Chinese ,  English ,  French ,  Hindi ,  Portuguese ,  Russian and  Spanish . 

Journalists covering the rollout of COVID-19 vaccines have received support through a live webinar, Covering the COVID-19 Vaccines: What Journalists Need to Know.  The recording is now available in 13 languages : Arabic, Bambara, Chinese, Dari, English, French, Guarani, Hindi, Pashto, Portuguese, Russian, Spanish and Wolof.

The media can also take an important part in understanding complex issues such as climate change and fighting the misinformation that surrounds it. In the face of climate change, journalists have the ability to enlighten the public and be the link between scientists and citizens by highlighting the urgency of the situation, but also tell stories that are positive and inspire solutions.

Getting the Message Across: Reporting on Climate Change and Sustainable Development in Asia and the Pacific

UNESCO has supported the publication of a handbook for journalists covering climate change. Journalists are key to ensuring that stories of destruction as well as of resistance are shared, in order to get the message across about climate change and avoid misinformation.

The power of community radios

The struggle to protect journalists and promote freedom of expression is just one of the pillars helping build knowledge societies that have the power to transform economies and communities. Universal access to information and knowledge as well as the respect for cultural and linguistic diversity are essential to building peace, sustainable economic development and intercultural dialogue.

The Syrian Hour is a UNESCO-funded project that produces a bi-weekly radio programme, aired on Yarmouk FM radio station in Irbid, northern Jordan, where there is a large Syrian refugee population. 

Syrian Hour

The programme trains young Syrians in radio broadcasting skills to host the shows while the shows themselves provide vital information and support to displaced Syrian refugees residing in Jordan. Majd Al Sammouri is one of the young people being trained to host The Syrian Hour. 

The first paths of my dreams were at the Faculty of Media and Mass Communication at the University of Damascus, a road I thought was lost forever after finding refuge in Jordan. Yarmouk FM was the compass that put me back to the streets of my dreams.

Many Syrian refugees who fled the war to Jordan still lack awareness about their security, liberty and protection rights and what is available to them in terms of food-assistance, education, health or psychosocial support. Often, their precarious refugee status makes them too afraid to approach authorities and humanitarian organizations.

Majd and his young colleagues provide much-needed reliable information and support to the refugee community.

Community radio is a powerful tool because it has the potential to reach out to people with little or no access to information. It is an efficient mechanism for educating and informing people living in remote areas about key issues such as health, education and sustainable development.

UNESCO is supporting and promoting community radios as a means to facilitate social communication and support democratic processes within societies.

Community radios are also being used to promote oral traditions. For example, in Bandafassi, Senegal, the community radio broadcasts stories and proverbs, traditional music and the history of the various villages. This is one of the many small steps towards building pluralistic and diverse media that provide free impartial information options to empower the public to make their choices towards peace, sustainability, poverty eradication and human rights.

UNESCO is supporting and promoting community radios

Fostering freedom of speech.

UNESCO works to foster free, independent and pluralistic media in print, broadcast and online. Media that adhere to this model enhance freedom of speech as well as contribute to peace, sustainability, poverty eradication and human rights.

#TruthNeverDies

#TruthNeverDies is a campaign developed jointly by UNESCO and communication agency DDB Paris to commemorate the  International Day to End Impunity for Crimes against Journalists  on 2 November.

Women Make the News 

Women Make the News is a global initiative aimed at raising awareness on issues relating to gender equality in and through the media, driving debate and encouraging action-oriented solutions to meet global objectives.

#HerMomentsMatter  

#HerMomentsMatter is a continuation of UNESCO’s World Radio Day campaign and aims to promote fairer coverage of women athletes. Women represent just 7 per cent of sportspeople seen, heard or read about in the media, while only 4 per cent of sports stories focus primarily on women. 

Remote Radio Week

Community media, whether broadcast or online, are key to ensuring media pluralism and freedom of expression. They are also an indicator of a healthy democratic society.

In partnership with the World Health Organization (WHO), UNESCO has launched a free online training for radio stations to develop their capacities to broadcast remotely.

AI and Facial Recognition webinar

This webinar about artificial intelligence (AI) and facial recognition, organized by UNESCO, touches on the pressing issues of facial recognition and the concerns it raises about the widespread adoption of AI and human rights. As AI is developing rapidly, it is important to understand its developments, which may have profound and potentially adverse impacts on individuals and society.

Webinar on Artificial Intelligence and Facial Recognition

World atlas of languages.

The World Atlas of Languages is an unprecedented initiative to preserve, revitalize and promote global linguistic diversity and multilingualism as a unique heritage and treasure of humanity. The project aims to stimulate new research and innovation, create demand for new language resources and tools, help support language policy and legislation, and forge new partnerships and collaboration in the global community to open up access to information.  

World Digital Library

Launched in 2009, the World Digital Library is a project of the U.S. Library of Congress, with the support of UNESCO, and contributions from libraries, archives, museums, educational institutions and international organizations around the world. The WDL seeks to preserve and share some of the world’s most important cultural objects, increasing access to cultural treasures and significant historical documents, to enable discovery, scholarship and use.

UNESCO/Guillermo Cano World Press Freedom Prize

Created in 1997, the annual UNESCO/Guillermo Cano World Press Freedom Prize honours an individual, organisation or institution that has made an outstanding contribution to the defence and, or promotion of press freedom anywhere in the world, especially when this has been achieved in the face of danger. It is named after Guillermo Cano Isaza, a Colombian journalist who was assassinated in front of the offices of his newspaper El Espectador in Bogotá, Colombia on 17 December 1986.

UNESCO / Guillermo Cano

World Press Freedom Prize

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Is Filtering Censorship? The Second Free Speech Tradition

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Tim wu tim wu special assistant to the president for technology and competition policy - white house national economic council (nec) @superwuster.

December 27, 2010

INTRODUCTION

When Google merged with telecommunications giant AT&T there was, of course, some opposition.  Some said, rather heatedly, that an information monopolist of a kind never seen before was in the works.  But given the state of the industry after the crash, and the shocking bankruptcy of Apple, there were few who would deny that some kind of merger was necessary.  Necessary, that is, not just to save jobs but to save the communications infrastructure that millions of Americans had come to depend on. After it went through, contrary to some of the dire warnings that came out, everything was much the same.   Google was still Google, the telephone company was still AT&T, and after a while, much of the hubbub died down.

It was a few years later that the rumors began, mostly leaks from former employees, suggesting that GT&T (now AT&T again) was up to something.  Some said the firm was fixing its search results and taking other steps to ensure that Google itself would never be displaced from its throne.   Of course, while it made for some good headlines, no one paid too much attention.  The fact is that there are always conspiracy theorists and disgruntled employees out there, no matter what the company. When GT&T went ahead and acquired The New York Times as part of its public campaign to save the media, most people cheered.  Yes, there was some of typical outcry from usual sources, but then again, Comcast had been running NBC for years without incident.

Looking back, I suppose it was really only after the Presidential election that you might say that things came to a head.  In a way, it might have been obvious that Governor Tilden, who’d pledged to aggressively enforce the antitrust laws, wasn’t going to be GT&T’s favorite candidate.   That’s fine, and of course corporations have the right, just like any other person, to support or oppose a politician they don’t like.  But what only came out much later was the full extent of the company’s campaign against Tilden.  It turned out that every part of the information empire–from the news site to the media properties to the search engines, the mobile video, and the access to emails — all of it was mobilized to ensure Tilden’s defeat.  It retrospect, it was foolish for Tilden’s campaign to rely on GT&T phones, Gmail and apps so heavily. Then again, doesn’t everyone?  

Everyone knows the effect that the press can have on elections.  We’ve sort of come to expect that newspapers will take one side or another.   But no one quite understood or realized how important controlling the very information channels themselves would be–from mobile phones all the way through search and video.

Well, Hayes is President, and nothing is going to change that.  But the whole incident has begun to make people wonder.  Should we be worried about the influence of the information channel over politics?  Are Google or AT&T possibly subject to the First Amendment?   Are they common carriers, and if so, what does that mean for speech?

Mention “speech” in America, and most people with legal training or an interest in the Constitution think immediately of the First Amendment and its champion, the United States Supreme Court.  The great story of free speech in America is the pamphleteer peddling an unpopular cause, defended by courts against arrest and the burning of his materials.  That is the central narrative taught in law schools, based loosely on Justice Holmes’ dissenting opinions [1] and Harvard Law Professor Zechariah Chafee’s 1919 seminal paper, Freedom of Speech in Wartime .  Chafee wrote:

The true meaning of freedom of speech seems to be this.  One of the most important purposes of society and government is the discovery and spread of truth on subjects of general concern.  This is possible only through absolutely unlimited discussion. . . Nevertheless, there are other purposes of government. . .  Unlimited discussion sometimes interferes with these purposes, which must then be balanced against freedom of speech…. The First Amendment gives binding force to this principle of political wisdom. [2]

This is the first free speech tradition, the centerpiece of how free speech has been understood in America. [3]   Yet while not irrelevant, it has become of secondary importance for many of the free speech questions of our times.   Instead, a second free speech tradition, dating from 1910 or the 1940s, much less well known, and barely taught in school, has slowly grown in importance.

The second tradition is different.  It cares about the decisions made by concentrated, private intermediaries who control or carry speech.  It is a tradition where the main governmental agent is not the Supreme Court but the Interstate Commerce or Federal Communications Commission.  And in the second tradition the censors, as it were, are not government officials but private intermediaries, who are often lacking a censorial instinct of their own, but nonetheless vulnerable to censorial pressures from others.  Above all, it is a speech tradition linked to the technology of mass communications.

In its heyday from the 1930s through the 1960s the second tradition was anchored in the common carriage rules applied to the telephone company and also, at times, to radio, and later on, in the cajoling of and the public interest duties imposed on broadcasters.   In its mid-century incarnation, the regime was a reaction to the concentration at every layer of the communications industry.   But today, the industry is different, and in our times, the concerns have changed.  As Jeffrey Rosen wrote in 2008, in the New York Times Magazine :

At the moment, the person with the most control over free expression around the globe is not a judge, a president, or a monarch. She is Nicole Wong, deputy general counsel at Google. Wong is known within Google as “The Decider,” because she alone decides which blogs, videos, articles and other content is posted on YouTube, and which are removed in response to requests from governments and users ranging from the Thai King and the Pakistani prime minister to Hollywood corporations. [4] Captured in this paragraph is an essential feature of the speech architecture of our times and how it affects the speech environment.   We live in an age where an enormous number of speakers, a “long tail” in popular lingo, are layered on top of a small number of very large speech intermediaries. [5]   Consequently, understanding free speech in America has become a matter of understanding the behavior of intermediaries, whether motivated by their own scruples, law, or public pressure.

The point of this essay is to suggest that anyone who wants to understand free speech in America in the 21st Century needs to understand the second tradition as deeply, if not more so, as the first.  That means understanding that the doctrines of common carriage and network neutrality are perhaps the most important speech-related laws of our times. As we shall see, it is a messier tradition and much less familiar, but no less important.

[1] E.g., Abrams v. United States , 250 U.S. 616 (1919) (Holmes, J., dissenting). [2] Zechariah Chafee, Freedom of Speech in Wartime , 32 Harv. L. Rev. 932, 956-57 (1919). [3] Scholars will know that describing Chafee’s Free speech During Wartime as representative of the First Free speech tradition is controversial, for Chafee is considered by some to have abrogated an older First Amendment tradition and constructed his own twentieth century “tradition.”  See Mark Graber, Transforming Free speech: The Ambiguous Legacy of Civil Libertarianism (1991).   It would probably be more accurate to speak of three, or four or five major speech traditions in the United States, and a few minor ones thrown in as well. [4]

See Jeffrey Rosen, Google’s Gatekeepers , N. Y. Times Mag., Nov. 28, 2008, available at http://www.nytimes.com/2008/11/30/magazine/30google-t.html. [5] “For every diverse Long Tail there’s a ‘Big Dog’: a boring standardized industry that isn’t sexy like Apple…but that delivers all that niche content you’re hungry for.” Tim Wu, The Wrong Tail , Slate, July 21, 2006, http://www.slate.com/id/2146225/.

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What Is Censorship?

RECENT CENSORSHIP NEWS > Prosecution of TV Provider Raises Free Speech Questions (8/24/2006) > Massachusetts Education Department Liable for Unconstitutional Censorship (8/1/2006) > Library Association Supports Lawsuit Against School Board Over Censorship (7/7/2006) > ACLU of Florida Sues to Stop Book Censorship by School Board (6/21/2006)

> Artistic Freedom

Censorship, the suppression of words, images, or ideas that are “offensive,” happens whenever some people succeed in imposing their personal political or moral values on others. Censorship can be carried out by the government as well as private pressure groups. Censorship by the government is unconstitutional.

In contrast, when private individuals or groups organize boycotts against stores that sell magazines of which they disapprove, their actions are protected by the First Amendment, although they can become dangerous in the extreme. Private pressure groups, not the government, promulgated and enforced the infamous Hollywood blacklists during the McCarthy period. But these private censorship campaigns are best countered by groups and individuals speaking out and organizing in defense of the threatened expression.

American society has always been deeply ambivalent about these questions. On the one hand, our history is filled with examples of overt government censorship, from the 1873 Comstock Law to the 1996 Communications Decency Act. On the other hand, the commitment to freedom of imagination and expression is deeply embedded in our national psyche, buttressed by the First Amendment, and supported by a long line of Supreme Court decisions.

The Supreme Court has interpreted the First Amendment’s protection of artistic expression very broadly. It extends not only to books, theatrical works and paintings, but also to posters, television, music videos and comic books — whatever the human creative impulse produces.

Two fundamental principles come into play whenever a court must decide a case involving freedom of expression. The first is “content neutrality”– the government cannot limit expression just because any listener, or even the majority of a community, is offended by its content. In the context of art and entertainment, this means tolerating some works that we might find offensive, insulting, outrageous — or just plain bad.

The second principle is that expression may be restricted only if it will clearly cause direct and imminent harm to an important societal interest. The classic example is falsely shouting fire in a crowded theater and causing a stampede. Even then, the speech may be silenced or punished only if there is no other way to avert the harm.

SEX SEXUAL SPEECH Sex in art and entertainment is the most frequent target of censorship crusades. Many examples come to mind. A painting of the classical statue of Venus de Milo was removed from a store because the managers of the shopping mall found its semi-nudity “too shocking.” Hundreds of works of literature, from Maya Angelou’s I Know Why the Caged Bird Sings to John Steinbeck’s Grapes of Wrath, have been banned from public schools based on their sexual content.

A museum director was charged with a crime for including sexually explicit photographs by Robert Mapplethorpe in an art exhibit.

American law is, on the whole, the most speech-protective in the world — but sexual expression is treated as a second-class citizen. No causal link between exposure to sexually explicit material and anti-social or violent behavior has ever been scientifically established, in spite of many efforts to do so. Rather, the Supreme Court has allowed censorship of sexual speech on moral grounds — a remnant of our nation’s Puritan heritage.

This does not mean that all sexual expression can be censored, however. Only a narrow range of “obscene” material can be suppressed; a term like “pornography” has no legal meaning . Nevertheless, even the relatively narrow obscenity exception serves as a vehicle for abuse by government authorities as well as pressure groups who want to impose their personal moral views on other people.

PORNOGRAPHIC! INDECENT! OBSCENE! Justice John Marshall Harlan’s line, “one man’s vulgarity is another’s lyric,” sums up the impossibility of developing a definition of obscenity that isn’t hopelessly vague and subjective. And Justice Potter Stewart’s famous assurance, “I know it when I see it,” is of small comfort to artists, writers, movie directors and lyricists who must navigate the murky waters of obscenity law trying to figure out what police, prosecutors, judges and juries will think.

The Supreme Court’s current definition of constitutionally unprotected Obscenity, first announced in a 1973 case called Miller v. California, has three requirements. The work must 1) appeal to the average person’s prurient (shameful, morbid) interest in sex; 2) depict sexual conduct in a “patently offensive way” as defined by community standards; and 3) taken as a whole, lack serious literary, artistic, political, or scientific value.

The Supreme Court has held that Indecent expression — in contrast with “obscenity” — is entitled to some constitutional protection, but that indecency in some media (broadcasting, cable, and telephone) may be regulated. In its 1978 decision in Federal Communications Commission v. Pacifica, the Court ruled that the government could require radio and television stations to air “indecent” material only during those hours when children would be unlikely listeners or viewers. Broadcast indecency was defined as: “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.” This vague concept continues to baffle both the public and the courts.

PORNOGRAPHY is not a legal term at all. Its dictionary definition is “writing or pictures intended to arouse sexual desire.” Pornography comes in as many varieties as the human sexual impulse and is protected by the First Amendment unless it meets the definition for illegal obscenity.

VIOLENCE IS MEDIA VIOLENCE A THREAT TO SOCIETY? Today’s calls for censorship are not motivated solely by morality and taste, but also by the widespread belief that exposure to images of violence causes people to act in destructive ways. Pro-censorship forces, including many politicians, often cite a multitude of “scientific studies” that allegedly prove fictional violence leads to real-life violence.

There is, in fact, virtually no evidence that fictional violence causes otherwise stable people to become violent. And if we suppressed material based on the actions of unstable people, no work of fiction or art would be safe from censorship. Serial killer Theodore Bundy collected cheerleading magazines. And the work most often cited by psychopaths as justification for their acts of violence is the Bible.

But what about the rest of us? Does exposure to media violence actually lead to criminal or anti-social conduct by otherwise stable people, including children, who spend an average of 28 hours watching television each week? These are important questions. If there really were a clear cause-and-effect relationship between what normal children see on TV and harmful actions, then limits on such expression might arguably be warranted.

WHAT THE STUDIES SHOW Studies on the relationship between media violence and real violence are the subject of considerable debate. Children have been shown TV programs with violent episodes in a laboratory setting and then tested for “aggressive” behavior. Some of these studies suggest that watching TV violence may temporarily induce “object aggression” in some children (such as popping balloons or hitting dolls or playing sports more aggressively) but not actual criminal violence against another person.

CORRELATIONAL STUDIES that seek to explain why some aggressive people have a history of watching a lot of violent TV suffer from the chicken-and-egg dilemma: does violent TV cause such people to behave aggressively, or do aggressive people simply prefer more violent entertainment? There is no definitive answer. But all scientists agree that statistical correlations between two phenomena do not mean that one causes the other.

INTERNATIONAL COMPARISONS are no more helpful. Japanese TV and movies are famous for their extreme, graphic violence, but Japan has a very low crime rate — much lower than many societies in which television watching is relatively rare. What the sudies reveal on the issue of fictional violence and real world aggression is — not much.

The only clear assertion that can be made is that the relationship between art and human behavior is a very complex one. Violent and sexually explicit art and entertainment have been a staple of human cultures from time immemorial. Many human behavioralists believe that these themes have a useful and constructive societal role, serving as a vicarious outlet for individual aggression.

WHERE DO THE EXPERTS AGREE? Whatever influence fictional violence has on behavior, most expert believe its effects are marginal compared to other factors. Even small children know the difference between fiction and reality, and their attitudes and behavior are shaped more by their life circumstances than by the books they read or the TV they watch. In 1972, the U.S. Surgeon General’s Advisory Committee on Television and Social Behavior released a 200-page report, “Television and Growing Up: The Impact of Televised Violence,” which concluded, “The effect [of television] is small compared with many other possible causes, such as parental attitudes or knowledge of and experience with the real violence of our society.” Twenty-one years later, the American Psychological Association published its 1993 report, “Violence & Youth,” and concluded, “The greatest predictor of future violent behavior is a previous history of violence.” In 1995, the Center for Communication Policy at UCLA, which monitors TV violence, came to a similar conclusion in its yearly report: “It is known that television does not have a simple, direct stimulus-response effect on its audiences.”

Blaming the media does not get us very far, and, to the extent that diverts the public’s attention from the real causes of violence in society, it may do more harm than good.

WHICH MEDIA VIOLENCE WOULD YOU BAN? A pro-censorship member of Congress once attacked the following shows for being too violent: The Miracle Worker, Civil War Journal, Star Trek 9, The Untouchables, and Teenage Mutant Ninja Turtles. What would be left if all these kinds of programs were purged from the airwaves? Is there good violence and bad violence? If so, who decides? Sports and the news are at least as violent as fiction, from the fights that erupt during every televised hockey game, to the videotaped beating of Rodney King by the LA Police Department, shown over and over gain on prime time TV. If we accept censorship of violence in the media, we will have to censor sports and news programs.

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Understanding hate speech

Hate speech versus freedom of speech

The need to preserve freedom of expression from censorship by States or private corporations’ is often invoked to counter efforts to regulate hateful expression, in particular online.

Freedom of opinion and expression are, indeed, cornerstones of human rights and pillars of free and democratic societies. These freedoms support other fundamental rights, such as to peaceful assembly, to participate in public affairs, and to freedom of religion. It is undeniable that digital media, including social media, have bolstered the right to seek, receive and impart information and ideas. Therefore, legislative efforts to regulate free expression unsurprisingly raise concerns that attempts to curb hate speech may silence dissent and opposition.

To counter hate speech, the United Nations supports more positive speech and upholds respect for freedom of expression as the norm. Therefore, any restrictions must be an exception and seek to prevent harm and ensure equality or the public participation of all. Alongside the relevant international human rights law provisions, the UN Rabat Plan of Action provides key guidance to States on the difference between freedom of expression and “incitement” (to discrimination, hostility and violence), which is prohibited under criminal law. Determining when the potential of harm is high enough to justify prohibiting speech is still the subject of much debate. But States can also use alternative tools – such as education and promoting counter-messages – to address the whole spectrum of hateful expression, both on and offline.

“Addressing hate speech does not mean limiting or prohibiting freedom of speech. It means keeping hate speech from escalating into something more dangerous, particularly incitement to discrimination, hostility and violence, which is prohibited under international law.”

— United Nations Secretary-General António Guterres, May 2019

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The Internet Dodges Censorship by the Supreme Court

The Supreme Court today refused to weaken one of the key laws supporting free expression online, and recognized that digital platforms are not usually liable for their users’ illegal acts, ensuring that everyone can continue to use those services to speak and organize.

The decisions in Gonzalez v. Google and Twitter v. Taamneh are great news for a free and vibrant internet, which inevitably depends on services that host our speech. The court in Gonzalez declined to address the scope of 47 U.S.C. § 230 (“Section 230”), which generally protects users and online services from lawsuits based on content created by others. Section 230 is an essential part of the legal architecture that enables everyone to connect, share ideas, and advocate for change without needing immense resources or technical expertise. By avoiding addressing Section 230, the Supreme Court avoided weakening it.

In Taamneh , the Supreme Court rejected a legal theory that would have made online services liable under the federal Justice Against Sponsors of Terrorism Act on the theory that members of terrorist organizations or their supporters simply used these services like we all do: to create and share content. The decision is another win for users’ online speech, as it avoids an outcome where providers censor far more content than they do already, or even prohibit certain topics or users entirely when they could later be held liable for aiding or abetting their user’s wrongful acts.

Given the potential for both decisions to have disastrous consequences for users’ free expression, EFF is pleased that the Supreme Court left existing legal protections for online speech legal in place.

But we cannot rest easy. There are pressing threats to users’ online speech as Congress considers legislation to weaken Section 230 and otherwise expand intermediary liability. Users must continue to advocate for their ability to have a free and open internet that everyone can use.

Read on for a fuller analysis of the Supreme Court’s decisions.

Supreme Court Sidesteps Effort to Weaken Section 230

The Supreme Court’s Gonzalez decision to avoid interpreting Section 230 is a win for free speech online. Relying on its ruling in Taamneh (discussed below), the Supreme Court ruled that the plaintiffs in Gonzalez had failed to establish that YouTube could be held liable as an aider and abetter under JASTA for hosting content of ISIS members and supporters.

Because the Gonzalez plaintiffs could not hold YouTube liable under JASTA directly, the court ruled that it did not need to decide whether YouTube even needed the protection of Section 230’s civil immunity.

The court’s refusal to interpret Section 230 is a big relief. As EFF wrote in a friend-of-the-court brief [PDF], the interpretation of Section 230 sought by the Gonzalez plaintiffs would have resulted in a much more censored and less user-friendly internet .

If online services could face liability based on simply recommending other users’ content or providing basic but essential tools people use to share their content, such as URLs, it would fundamentally reshape everyone’s ability to speak and share content online. People would have difficulty finding communities and content that they want, and speakers and creators would not be able to find audiences for their content. In short, the Gonzalez plaintiffs’ Section 230 interpretation would have gutted many of the benefits online services provide to their users.

Not to mention that if platforms faced liability for merely hosting content associated with terrorist organizations, they would predictably react by censoring a large volume of protected speech, including news reporting about terrorist acts, counter-speech by others, and any other content that someone could claim later supported terrorism. There’s no doubt that this reaction would have a disproportionate impact on marginalized speakers.

The court’s Gonzalez decision is also a victory in another sense. The Supreme Court’s decision means that the lower court’s decision, by the U.S. Court of Appeals for the Ninth Circuit, no longer has any legal authority. That decision sought to dangerously narrow Section 230’s protections for legal claims under the Anti-Terrorism Act, raising the specter of widespread internet censorship. The Ninth Circuit also endorsed the use of automated filters to address concerns about distributing harmful content, a dangerous and naïve view that would have resulted in vastly more automated censorship.

Online Services Are Not Liable for Users’ Illegal Acts

The Supreme Court’s Taamneh decision is also good news to ensure that internet users can speak about and have access to information about controversial topics, including speech about terrorism.

The central question in Taamneh was whether online services could be held liable for aiding and abetting acts of terrorism because they generally provided services that those organizations or their supporters used. There was no allegation in the case that the platforms were specifically used to plan the Reina attack. EFF was concerned that allowing liability based on claims that a service was generally aware that others had used its service would lead to censorship of users’ speech, as platforms would be less willing to host speech on controversial topics. Along with a coalition, we filed a friend-of-the-court brief warning the Supreme Court about that dangerous outcome.

Thankfully, the Supreme Court declined to rule that online services could be liable. Although the court’s opinion rests on historical understandings of the legal concept of aiding and abetting liability, the upshot is that online services are generally not culpable for having a service open to users that some used to engage in illegal acts.

The court recognized that “ defendants’ platforms are global in scale and allow hundreds of millions (or billions) of people to upload vast quantities of infor mation on a daily basis. Yet, there are no allegations that defendants treated ISIS any differently from anyone else. ”

The Supreme Court also dismissed an argument by the plaintiffs that the automated systems platforms use to distribute content to users could be viewed as providing substantial assistance to ISIS to create liability under JASTA. Instead, the court ruled that those recommendation systems are inseparable, essential features of the services’ architecture.

All the content on their platforms is filtered through these algorithms, which allegedly sort the content by information and inputs provided by users and found in the content itself. As presented here, the algorithms appear agnostic as to the nature of the content, matching any content (including ISIS’ content) with any user who is more likely to view that content. The fact that these algorithms matched some ISIS content with some users thus does not convert defendants’ passive assistance into active abetting. Once the platform and sorting-tool algorithms were up and running, defend ants at most allegedly stood back and watched; they are not alleged to have taken any further action with respect to ISIS.

That said, the Supreme Court’s ruling does not foreclose any potential liability when services affirmatively aid and abet specific terrorist acts rather than just assist the entity generally—the outcome could have been different in such a case. That could be read by some as an invitation to enact speech-chilling laws that require services to spy on their users or censor their speech.

EFF will continue to fight any efforts to censor the internet. And we will continue to center users’ rights to free expression so that lawmakers and courts know how their decisions will harm everyone’s ability to rely on the internet to speak, organize, and find their communities. Today, however, EFF is relieved that the Supreme Court avoided harming users’ speech.

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Nazi Propaganda and Censorship

The Nazis used propaganda to win the support of millions of Germans. Censorship helped to suppress ideas that the Nazis saw as threatening. 

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Nazi Propaganda and Censorship The Nazis wanted Germans to support the Nazi dictatorship and believe in Nazi ideas. To accomplish this goal, they tried to control forms of communication through censorship and propaganda. This included control of newspapers, magazines, books, art, theater, music, movies, and radio.

How did the Nazis use censorship? 

When the Nazis came to power in 1933, the German constitution guaranteed freedom of speech and freedom of the press. Through decrees and laws, the Nazis abolished these civil rights and destroyed German democracy. Starting in 1934, it was illegal to criticize the Nazi government. Even telling a joke about Hitler was considered treachery. People in Nazi Germany could not say or write whatever they wanted. 

Examples of censorship under the Nazis included:

• Closing down or taking over anti-Nazi newspapers; 
• Controlling what news appeared in newspapers, on the radio, and in newsreels;
• Banning and burning books that the Nazis categorized as un-German;
• Controlling what soldiers wrote home during World War II.

How did the Nazis use propaganda?

The Nazis used propaganda to promote their ideas and beliefs. Beginning in March 1933, the regime tried to centralize its propaganda efforts in a new ministry led by Joseph Goebbels. This ministry was called the Reich Ministry of Enlightenment and Propaganda. 

The Nazis used a variety of propaganda tools to spread Nazi ideas. Examples of propaganda under the Nazis included: 

• Glorifying Adolf Hitler by using his image on postcards, posters, and in the press; 
• Spreading negative images and ideas about Jews in magazines, films, cartoons, and other media; 
• Making radios more affordable so that more Germans could listen to Nazi ideas and news;
• Broadcasting Nazi speeches on the radio and public loudspeakers;
• Organizing large and celebratory Nazi Party rallies;
• Creating groups, like the Hitler Youth and League of German Girls, that fostered Nazi ideals.

How did propaganda and censorship work together?

Textbooks are a good example of how propaganda and censorship worked together in the Nazi regime. The Nazis used both propaganda and censorship to control what students read in school. Nazi censors removed some textbooks from classrooms. New textbooks taught students to obey the Nazi Party, love Hitler, and hate Jews.

May 10, 1933 Nazi Book Burnings 

During the spring of 1933, Nazi university student organizations, professors, and librarians put together long lists of books they think are un-German. These lists include books written by Jewish authors. They also include books by non-Jewish authors whose ideas conflict with Nazi ideals. On the night of May 10, 1933, Nazis hold book burnings. They march by torchlight in nighttime parades, sing chants, and throw books into huge bonfires. On that night more than 25,000 books are burned. 

March 28, 1935 Premiere of the Propaganda Film Triumph of the Will

Leni Riefenstahl’s propaganda film Triumph of the Will premieres in Berlin. The film shows footage taken at the 1934 Nazi Party Rally at Nuremberg. The footage from the rally shows smiling children, cheering crowds, and uniformed Nazis. It features military parades and a speech by Adolf Hitler. Triumph of the Will will become one of the most infamous Nazi propaganda films. 

September 1939 Banning Germans from Listening to Foreign Radio

World War II begins on September 1, 1939. Shortly afterwards, the Nazi regime makes listening to foreign radio broadcasts illegal. This is an attempt to control what information Germans hear about the war. The Nazi regime sees news and information from outside Germany as a security threat. They are worried about foreign radio broadcasts, which some Germans can access on their home radios. Later in the war, the regime even sentences people to death for listening to foreign radio stations.

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Hitler Comes to Power

The Nazi Terror Begins

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Nazi Racism

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German Rule in Occupied Europe

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Balancing Internet Censorship and Freedom of Speech

In an age where the internet is both a boundless wellspring of knowledge and a potential arena for misinformation, the debate surrounding internet censorship and freedom of expression has reached an emotional pitch. The clash between controlling access to information and safeguarding free speech has created a complex and contentious discourse reverberating across the digital landscape.

As the world becomes increasingly interconnected, it is imperative to dissect the nuances of this debate, exploring its dimensions and implications for the fundamental principles of democracy and individual liberties.

The Balancing Act: Internet Censorship and Freedom of Expression

Once hailed as an open platform for free expression and the democratization of information, the internet has become a double-edged sword. On the one hand, it has empowered individuals to voice their thoughts, connect across borders, and mobilize for change. Conversely, it has enabled the spreading of harmful content, misinformation, and hate speech, raising concerns about societal well-being and public safety.

Governments, organizations, and platforms have grappled with finding the delicate equilibrium between curbing the dissemination of harmful content and upholding the principles of free speech. Internet censorship can take various forms, from content removal and website blocking to surveillance and data localization.

While proponents argue that such measures are necessary to maintain order and protect vulnerable populations, critics contend that they can be wielded as tools of control and suppression, stifling dissent and eroding democratic values.

The Implications for Free Speech

The crux of the debate lies in the intricate relationship between internet censorship and freedom of expression . Advocates of robust censorship assert that limiting access to harmful content is essential to prevent harm and maintain a harmonious digital ecosystem. They believe curbing misinformation and hate speech can promote a healthier online environment, fostering informed discourse and safeguarding vulnerable individuals.

Conversely, champions of free speech argue that any form of censorship, no matter how well-intentioned, risks infringing upon the cornerstone of democracy. They contend that suppressing dissenting voices, even those that may be unpopular or offensive, hampers the pursuit of truth and stifles the diversity of ideas that drive progress.

In their view, the potential for abuse and overreach by those in power is a grave concern, and the path to a truly open society lies in protecting the unfettered exchange of information regardless of its nature.

The Global Landscape

The debate surrounding internet censorship and freedom of expression is not confined to the borders of any one nation. In an interconnected world, decisions made by governments and platforms in one corner of the globe can reverberate across continents, impacting individuals’ digital experiences and rights everywhere. The tension between local laws, cultural norms, and global communication platforms further complicates the issue, highlighting the need for international dialogue and collaboration.

Quote from Our Founder and CIO

“Navigating the delicate balance between internet censorship and freedom of expression is a complex challenge. While we acknowledge the need to curtail harmful content, we must tread cautiously to protect the essence of free speech. Twintel stands as a proponent of open dialogue and diverse viewpoints.” – William Scogin, Founder and CIO of TWINTEL

Twintel’s Commitment to a Balanced Digital Future

At Twintel , we recognize the multifaceted nature of internet censorship and freedom of expression debate. Our mission is to facilitate informed discussions, empower individuals, and foster an environment where diverse perspectives can coexist. We believe in harnessing the power of technology to bridge gaps, facilitate dialogue, and amplify voices that contribute positively to society.

As the digital landscape evolves, we invite you to join us in navigating the intricate terrain of internet censorship and free speech. Together, let us forge a path that upholds the principles of democracy, embraces diversity, and preserves the essence of an open and interconnected world.

Learn more give  TWINTEL  a call at (888) 428-0599 or  schedule a meeting  today .

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• Mark Johnson https://www.twintel.net/author/mark-johnson/ AI Powered Fitness: Unleashing Personalized Potential
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Mark Johnson is a passionate technology professional with over 11 years of experience in the Managed Services IT space and a wide variety of industry-leading certifications. Mark’s extensive Managed IT experience and aptitude for quickly learning and adapting to new technologies has equipped him to offer valuable insight across a broad spectrum of business technology solutions. Mark's fascination with technology began at a young age when he learned to navigate DOS so that he could play games on his brother's Tandy 386 computer. Over the subsequent years, Mark developed skills in photography, videography, and non-linear editing, and he eventually studied Television Production. He worked on the sound team at his church and developed himself in technical and non-technical leadership roles. Ultimately, Mark’s desire to be always learning, progressing, and developing his knowledge led him to a career in Information Technology. As an IT Professional and consultant, Mark enjoys meeting with organizational leadership to understand their business, their team, their technology infrastructure, and their budget so that he can work closely with them to build solutions that leverage technology as a competitive advantage rather than a liability. His genuine openness and transparency allow him to quickly connect with clients to build lasting relationships based on trust and mutual respect. One of Mark’s greatest assets is his ability to listen and empathize with his clients, enabling him to understand their perspective and develop a unique plan to accommodate their needs. Whether that means reducing IT spend without impacting productivity or reducing the technology footprint in the network closet by transitioning systems and services to the cloud, his commitment to integrity and proven results has earned him a reputation as a trusted advisor to his clients. Mark is a devoted family man who prioritizes his role as a husband and father. He loves to spend time with his wife and three beautiful children hiking together, exploring new places, cooking new foods, and appreciating quiet evenings at home. His family is also actively involved in their local church, where they enjoy serving and contributing to the community. In conclusion, Mark Johnson is a passionate, family-oriented, and highly skilled technology professional with a wealth of experience in the Managed Services IT space. His love for technology, combined with his dedication to his clients, has made him a sought-after advisor and solution builder in the industry. " Even the most daunting of tasks is made up of many small steps. The key to success is to begin somewhere. Life is full of beginnings, and none of them are easy, but if you never get started, you’ll never enjoy the fruit of discipline or the possibility of achievement." - Mark Johnson

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Chapter 15: Media and Government

15.4 censorship and freedom of speech, learning objectives.

• Explain the FCC’s process of classifying material as indecent, obscene, or profane.
• Describe how the Hay’s Code affected 20th-century American mass media.

Figure 15.3 Attempts to censor material, such as banning books, typically attract a great deal of controversy and debate. Timberland Regional Library – Banned Books Display At The Lacey Library – CC BY-NC-ND 2.0.

To fully understand the issues of censorship and freedom of speech and how they apply to modern media, we must first explore the terms themselves. Censorship is defined as suppressing or removing anything deemed objectionable. A common, everyday example can be found on the radio or television, where potentially offensive words are “bleeped” out. More controversial is censorship at a political or religious level. If you’ve ever been banned from reading a book in school, or watched a “clean” version of a movie on an airplane, you’ve experienced censorship.

Much as media legislation can be controversial due to First Amendment protections, censorship in the media is often hotly debated. The First Amendment states that “Congress shall make no law…abridging the freedom of speech, or of the press (Case Summaries).” Under this definition, the term “speech” extends to a broader sense of “expression,” meaning verbal, nonverbal, visual, or symbolic expression. Historically, many individuals have cited the First Amendment when protesting FCC decisions to censor certain media products or programs. However, what many people do not realize is that U.S. law establishes several exceptions to free speech, including defamation, hate speech, breach of the peace, incitement to crime, sedition, and obscenity.

Classifying Material as Indecent, Obscene, or Profane

To comply with U.S. law, the FCC prohibits broadcasters from airing obscene programming. The FCC decides whether or not material is obscene by using a three-prong test.

Obscene material:

• causes the average person to have lustful or sexual thoughts;
• depicts lawfully offensive sexual conduct; and
• lacks literary, artistic, political, or scientific value.

Material meeting all of these criteria is officially considered obscene and usually applies to hard-core pornography (Federal Communications Commission). “Indecent” material, on the other hand, is protected by the First Amendment and cannot be banned entirely.

Indecent material:

• contains graphic sexual or excretory depictions;
• dwells at length on depictions of sexual or excretory organs; and
• is used simply to shock or arouse an audience.

Material deemed indecent cannot be broadcast between the hours of 6 a.m. and 10 p.m., to make it less likely that children will be exposed to it (Federal Communications Commission).

These classifications symbolize the media’s long struggle with what is considered appropriate and inappropriate material. Despite the existence of the guidelines, however, the process of categorizing materials is a long and arduous one.

There is a formalized process for deciding what material falls into which category. First, the FCC relies on television audiences to alert the agency of potentially controversial material that may require classification. The commission asks the public to file a complaint via letter, e-mail, fax, telephone, or the agency’s website, including the station, the community, and the date and time of the broadcast. The complaint should “contain enough detail about the material broadcast that the FCC can understand the exact words and language used (Federal Communications Commission).” Citizens are also allowed to submit tapes or transcripts of the aired material. Upon receiving a complaint, the FCC logs it in a database, which a staff member then accesses to perform an initial review. If necessary, the agency may contact either the station licensee or the individual who filed the complaint for further information.

Once the FCC has conducted a thorough investigation, it determines a final classification for the material. In the case of profane or indecent material, the agency may take further actions, including possibly fining the network or station (Federal Communications Commission). If the material is classified as obscene, the FCC will instead refer the matter to the U.S. Department of Justice, which has the authority to criminally prosecute the media outlet. If convicted in court, violators can be subject to criminal fines and/or imprisonment (Federal Communications Commission).

Each year, the FCC receives thousands of complaints regarding obscene, indecent, or profane programming. While the agency ultimately defines most programs cited in the complaints as appropriate, many complaints require in-depth investigation and may result in fines called notices of apparent liability (NAL) or federal investigation.

Table 15.1 FCC Indecency Complaints and NALs: 2000–2005

Violence and Sex: Taboos in Entertainment

Although popular memory thinks of old black-and-white movies as tame or sanitized, many early filmmakers filled their movies with sexual or violent content. Edwin S. Porter’s 1903 silent film The Great Train Robbery , for example, is known for expressing “the appealing, deeply embedded nature of violence in the frontier experience and the American civilizing process,” and showcases “the rather spontaneous way that the attendant violence appears in the earliest developments of cinema (Film Reference).” The film ends with an image of a gunman firing a revolver directly at the camera, demonstrating that cinema’s fascination with violence was present even 100 years ago.

Porter was not the only U.S. filmmaker working during the early years of cinema to employ graphic violence. Films such as Intolerance (1916) and The Birth of a Nation (1915) are notorious for their overt portrayals of violent activities. The director of both films, D. W. Griffith, intentionally portrayed content graphically because he “believed that the portrayal of violence must be uncompromised to show its consequences for humanity (Film Reference).”

Although audiences responded eagerly to the new medium of film, some naysayers believed that Hollywood films and their associated hedonistic culture was a negative moral influence. As you read in Chapter 8 “Movies” , this changed during the 1930s with the implementation of the Hays Code. Formally termed the Motion Picture Production Code of 1930, the code is popularly known by the name of its author, Will Hays, the chairman of the industry’s self-regulatory Motion Picture Producers and Distributors Association (MPPDA), which was founded in 1922 to “police all in-house productions (Film Reference).” Created to forestall what was perceived to be looming governmental control over the industry, the Hays Code was, essentially, Hollywood self-censorship. The code displayed the motion picture industry’s commitment to the public, stating:

Motion picture producers recognize the high trust and confidence which have been placed in them by the people of the world and which have made motion pictures a universal form of entertainment…. Hence, though regarding motion pictures primarily as entertainment without any explicit purposes of teaching or propaganda, they know that the motion picture within its own field of entertainment may be directly responsible for spiritual or moral progress, for higher types of social life, and for much correct thinking (Arts Reformation).

Among other requirements, the Hays Code enacted strict guidelines on the portrayal of violence. Crimes such as murder, theft, robbery, safecracking, and “dynamiting of trains, mines, buildings, etc.” could not be presented in detail (Arts Reformation). The code also addressed the portrayals of sex, saying that “the sanctity of the institution of marriage and the home shall be upheld. Pictures shall not infer that low forms of sex relationship are the accepted or common thing (Arts Reformation).”

Figure 15.4 As the chairman of the Motion Picture Producers and Distributors Association, Will Hays oversaw the creation of the industry’s self-censoring Hays Code. Wikimedia Commons – public domain.

As television grew in popularity during the mid-1900s, the strict code placed on the film industry spread to other forms of visual media. Many early sitcoms, for example, showed married couples sleeping in separate twin beds to avoid suggesting sexual relations.

By the end of the 1940s, the MPPDA had begun to relax the rigid regulations of the Hays Code. Propelled by the changing moral standards of the 1950s and 1960s, this led to a gradual reintroduction of violence and sex into mass media.

Ratings Systems

As filmmakers began pushing the boundaries of acceptable visual content, the Hollywood studio industry scrambled to create a system to ensure appropriate audiences for films. In 1968, the successor of the MPPDA, the Motion Picture Association of America (MPAA), established the familiar film ratings system to help alert potential audiences to the type of content they could expect from a production.

Film Ratings

Although the ratings system changed slightly in its early years, by 1972 it seemed that the MPAA had settled on its ratings. These ratings consisted of G (general audiences), PG (parental guidance suggested), R (restricted to ages 17 or up unless accompanied by a parent), and X (completely restricted to ages 17 and up). The system worked until 1984, when several major battles took place over controversial material. During that year, the highly popular films Indiana Jones and the Temple of Doom and Gremlins both premiered with a PG rating. Both films—and subsequently the MPAA—received criticism for the explicit violence presented on screen, which many viewers considered too intense for the relatively mild PG rating. In response to the complaints, the MPAA introduced the PG-13 rating to indicate that some material may be inappropriate for children under the age of 13.

Another change came to the ratings system in 1990, with the introduction of the NC-17 rating. Carrying the same restrictions as the existing X rating, the new designation came at the behest of the film industry to distinguish mature films from pornographic ones. Despite the arguably milder format of the rating’s name, many filmmakers find it too strict in practice; receiving an NC-17 rating often leads to a lack of promotion or distribution because numerous movie theaters and rental outlets refuse to carry films with this rating.

Television and Video Game Ratings

Regardless of these criticisms, most audience members find the rating system helpful, particularly when determining what is appropriate for children. The adoption of industry ratings for television programs and video games reflects the success of the film ratings system. During the 1990s, for example, the broadcasting industry introduced a voluntary rating system not unlike that used for films to accompany all TV shows. These ratings are displayed on screen during the first 15 seconds of a program and include TV-Y (all children), TV-Y7 (children ages 7 and up), TV-Y7-FV (older children—fantasy violence), TV-G (general audience), TV-PG (parental guidance suggested), TV-14 (parents strongly cautioned), and TV-MA (mature audiences only).

Table 15.2 Television Ratings System

Source: http://www.tvguidelines.org/ratings.htm

At about the same time that television ratings appeared, the Entertainment Software Rating Board was established to provide ratings on video games. Video game ratings include EC (early childhood), E (everyone), E 10+ (ages 10 and older), T (teen), M (mature), and AO (adults only).

Table 15.3 Video Game Ratings System

Source: http://www.esrb.org/ratings/ratings_guide.jsp

Even with these ratings, the video game industry has long endured criticism over violence and sex in video games. One of the top-selling video game series in the world, Grand Theft Auto , is highly controversial because players have the option to solicit prostitution or murder civilians (Media Awareness). In 2010, a report claimed that “38 percent of the female characters in video games are scantily clad, 23 percent baring breasts or cleavage, 31 percent exposing thighs, another 31 percent exposing stomachs or midriffs, and 15 percent baring their behinds (Media Awareness).” Despite multiple lawsuits, some video game creators stand by their decisions to place graphic displays of violence and sex in their games on the grounds of freedom of speech.

Key Takeaways

• The U.S. Government devised the three-prong test to determine if material can be considered “obscene.” The FCC applies these guidelines to determine whether broadcast content can be classified as profane, indecent, or obscene.
• Established during the 1930s, the Hays Code placed strict regulations on film, requiring that filmmakers avoid portraying violence and sex in films.
• After the decline of the Hays Code during the 1960s, the MPAA introduced a self-policed film ratings system. This system later inspired similar ratings for television and video game content.

Look over the MPAA’s explanation of each film rating online at http://www.mpaa.org/ratings/what-each-rating-means . View a film with these requirements in mind and think about how the rating was selected. Then answer the following short-answer questions. Each response should be a minimum of one paragraph.

• Would this material be considered “obscene” under the Hays Code criteria? Would it be considered obscene under the FCC’s three-prong test? Explain why or why not. How would the film be different if it were released in accordance to the guidelines of the Hays Code?
• Do you agree with the rating your chosen film was given? Why or why not?

Arts Reformation, “The Motion Picture Production Code of 1930 (Hays Code),” ArtsReformation, http://www.artsreformation.com/a001/hays-code.html .

Case Summaries, “First Amendment—Religion and Expression,” http://caselaw.lp.findlaw.com/data/constitution/amendment01/ .

Federal Communications Commission, “Obscenity, Indecency & Profanity: Frequently Asked Questions,” http://www.fcc.gov/eb/oip/FAQ.html .

Film Reference, “Violence,” Film Reference, http://www.filmreference.com/encyclopedia/Romantic-Comedy-Yugoslavia/Violence-BEGINNINGS.html .

Media Awareness, Media Issues, “Sex and Relationships in the Media,” http://www.media-awareness.ca/english/issues/stereotyping/women_and_girls/women_sex.cfm .

Media Awareness, Media Issues, “Violence in Media Entertainment,” http://www.media-awareness.ca/english/issues/violence/violence_entertainment.cfm .

• Understanding Media and Culture: An Introduction to Mass Communication. Provided by : This adapted edition is produced by the University of Minnesota Libraries Publishing through the eLearning Support Initiative.. Located at : https://open.lib.umn.edu/mediaandculture/ . License : CC BY-NC-SA: Attribution-NonCommercial-ShareAlike

Privacy Policy

Is Censorship Out of Control? Supreme Court Makes Big Decision

T he U.S. Supreme Court has agreed to hear a case that will determine the extent to which the government can pressure social media companies to censor or suppress certain information.

The lawsuit, filed by GOP attorneys general from Missouri and Louisiana, argues that such pressure violates the First Amendment’s freedom of speech.

The case revolves around the government’s influence on tech giants in censoring COVID-19-related information. (Poll: Is Social Media Censorship Out of Control? VOTE)

Louisiana Solicitor General Liz Murrill said, “We are pleased to learn that the U.S. Supreme Court will hear this case, giving us yet another opportunity to defend the people from this assault on our First Amendment rights.”

“It brings us one step closer to reestablishing the protections guaranteed to us in the Constitution and under the First Amendment.”

“We hope that the Supreme Court will agree that this gross abuse of power must stop and never happen again,” she added.

While the Supreme Court paused an injunction blocking the government’s interaction with social media platforms, conservative justices expressed dissent, warning about potential First Amendment violations.

The decision has been praised by Louisiana Solicitor General Liz Murrill.

“Despite the Government’s conspicuous failure to establish a threat of irreparable harm, the majority stays the injunction and thus allows the defendants to persist in committing the type of First Amendment violations that the lower courts identified,” Justice Samuel Alito wrote in a five-page dissent on the decision to stay the injunction.

“The majority takes this action in the face of the lower courts’ detailed findings of fact.” (Trending: Jimmy Kimmel Quietly Fired From Job)

“Applying our settled test for granting a stay, I would deny the Government’s application, but I would specify in the order that in the unlikely event that a concrete occurrence presents a risk of irreparable harm, the Government can apply for relief at that time, including, if necessary, by filing an emergency application here,” he continued.

“Such an order would fully protect the ability of Executive Branch officials to speak out on matters of public concern.

“At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate,” he added.

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Challenges of Ethically Regulating Free Speech on College Campuses

By shoellis

By: Olivia Welsh, Ethics and Policy Intern

Each day, headlines highlight the ongoing questions we have about the role of universities in public discourse. These conversations center on questions surrounding political neutrality, what is considered “appropriate” speech from students and faculty, and how to protect university community members from harm. These are not new questions, but the escalation of the Israel-Palestine conflict, from everyday campus protests to Ivy League president resignations, has brought the issue of free speech on college campuses to a boiling point.

A university or higher-education institution is inherently a setting where intellectual and ideological disagreement will occur – and should even be encouraged. The challenge is where and how do we draw the line. What type of speech is so harmful to members of the community that it must be restricted? Who gets to decide the line between right and wrong? What is a university’s responsibility to speak out about the social and political issues of the day?

Being uncomfortable is a necessary part of growth. Being unsafe is not. This is the balance that colleges and universities are trying to strike every day. Can there ever be an institution that gets it exactly right in the eyes of all?

The background of college campus free speech

In the 1960s, free speech on college campuses was at the forefront of higher education discussions. The University of Chicago made its first attempt at taking an official stance by publishing the Kalven Report. This 1967 statement, still in use today, argues that institutions should remain socially and politically neutral while fostering lively debate among their members. The authors of the Kalven Report believed that a university should not suppress any viewpoints or change its corporate activities to foster social or political values.

“The university is the home and sponsor of critics; it is not itself the critic. […] To perform its mission in society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures” [5].

In short, the report states that a university should be a place to discuss all possible perspectives without censorship. The members of a university community can come to their own conclusions and act independently of the institution itself. The Kalven Report pushes back at anyone who might consider such a choice to not weigh in on the topics of the day as cowardly or uncaring:

“The neutrality of the university as an institution arises then not from a lack of courage nor out of indifference and insensitivity. It arises out of respect for free inquiry and the obligation to cherish a diversity of viewpoints. And this neutrality as an institution has its complement in the fullest freedom for its faculty and students as individuals to participate in political action and social protest.” [5]

In 2014, the University of Chicago decided to make another statement amidst an onslaught of various free speech lawsuits against universities nationwide. The resulting Chicago Principles delineate a clear and longstanding commitment to free speech and allow a wide diversity of ideas to be discussed in the University setting. The Chicago Principles reiterate the sentiment of the Kalven Report, calling debate and deliberation essential to higher education, even if the ideas discussed are viewed as “offensive, unwise, immoral, or wrong-headed” [8]. It guarantees “the broadest possible latitude to speak, write, listen, challenge, and learn,” provided that such behavior does not interfere with the core functioning of the university [8]. Furthermore, the Chicago Principles demand that all community members not obstruct or otherwise interfere with others’ freedom of speech. The Chicago Principles conclude by arguing that “without a vibrant commitment to free and open inquiry, a university ceases to be a university” [8].

These are the positions that the University of North Carolina System (“UNC System”) adopted in 2017, as endorsed by the University of North Carolina at Chapel Hill’s (“UNC-Chapel Hill”) Faculty Council and Board of Trustees [10] [3]. The UNC System schools are among over 100 other colleges and universities nationwide that have adopted the Chicago Principles, including several of our peer institutions [4]. In 2022, the UNC-Chapel Hill Board of Trustees took a further step in protecting free speech by adopting the Kalven Report [2].

“The mission of The University of North Carolina at Chapel Hill is advanced by our commitment to the aspirational principles that guide our public conversation no matter how unsettling […] At Carolina, we have long known that light and liberty are the essential tools that allow problems to be seen, ideas to be tested, and solutions to be found,” the Faculty Council states [10].

Of course, both the UNC System and UNC-Chapel Hill have policies regulating free speech, which forbid defamation, unlawful harassment, true threats, unjust invasions of privacy, and more (see the UNC System Policy and the UNC-Chapel Hill Policy ). However, these policies leave several unanswered questions. For example, it is not always clear what speech falls under the category of a “true threat,” especially because that might mean different things to different people.

When does protecting free speech interfere with a university’s teaching mission and functioning? Do institutions have a different obligation to protect historically marginalized groups compared to historically well-represented groups? What is a university’s responsibility in addressing social and political issues? There are no “right” answers, but some views on these questions are explored below.

When does protecting free speech inhibit a university’s functioning?

The Kalven Report, the Chicago Principles, and the UNC policies all indicate that it is appropriate to restrict free speech when it interferes with the necessary functioning of the university, with safety concerns being of utmost importance. Beyond cases like riots that would physically disallow classes from taking place and endanger members of the university, disruptions like exclusionary speech could also be viewed as interfering with a university’s core functioning by hindering equal access to education. If it is a university’s mission to educate all its students, but a particular group feels unreasonably ostracized due to the free speech of others and feels unable to attend or participate in class, then one could argue that speech is interfering with the necessary functioning of the university.

Say that, while not violating any laws, an anti-Black Lives Matter (“BLM”) speaker comes to campus and delivers a scathing condemnation of the BLM movement. However, the speaker’s remarks and student participation in the event make Black students feel unwelcome on campus, and therefore, these students find it harder to benefit from their education. Does this qualify as speech that interferes with the university’s functioning? And if so, should it not be welcomed on campus?

On the flip side, does inhibiting a challenging viewpoint negatively impact the educational environment? Students should have the opportunity to grapple with difficult ideas and the controversies of the day – that is part of what is so valuable about a liberal arts education. Colleges are not full of fragile students who cannot stand to hear free speech, and they should not be portrayed as such. The key is creating an environment where the needs of all students remain supported even during protests, controversial speakers, and difficult discussions. However, it is not easy to prescribe a single policy for handling free speech since circumstances vary dramatically from institution to institution [1].

Is there a different obligation to protect historically marginalized groups at a university?

Continuing with this hypothetical of an anti-BLM speaker on campus, how might appropriate free-speech regulation differ based on context? According to UNC System data, just over 8% of UNC-Chapel Hill’s undergraduate student body identifies as Black/African American [11]. In the context of having such a significant minority, is it justified to more strictly regulate free speech that makes Black students feel unwelcome and further marginalized at the university?

One might think that free speech should be fully protected regardless because any university member in opposition has an equal right to free speech in response. However, just because someone has the right to free speech does not mean they feel reasonably empowered to use it. This highlights the important distinction between equality, which treats everyone the same, and equity, which recognizes that creating a level playing field often means allocating more or less resources to particular individuals or groups based on their specific circumstances. Giving all campus community members the same right to free speech is equal, but equitable free speech would amplify and protect minority groups.

The teaching mission of a university relies on an inclusive climate. Institutional attention is necessary to ensure that all students in diverse classrooms are comfortable being involved in the learning experience. Because it is important to include ALL students in an environment of free inquiry, there is an argument that free speech that specifically marginalizes an already minority group must be more strictly regulated than controversial speech that makes a majority group uncomfortable [1].

This is where context is important because, unlike UNC-Chapel Hill, Howard University (“Howard”) has a very strong majority of Black students. At Howard, Black students would likely not feel as threatened by an anti-BLM speaker; therefore, students could more comfortably engage in rigorous debate and grapple with differing viewpoints, which is essential in higher education.

What is a university’s responsibility to govern speech on campus about social and political issues?

This past November, a speaker unaffiliated with UNC-Chapel Hill made remarks on campus that sympathized with the violence perpetrated by Hamas against Israeli citizens on October 7th, 2023 [7]. Such tolerance for violence (which killed over a thousand Israeli citizens) is clearly alarming and certainly falls under the category of speech seen as “offensive, unwise, immoral, or wrong-headed.” But remember that, in the spirit of free inquiry and true academia, the Chicago Principles protect such speech. The remarks did not include a threat or any other banned speech.

Then-Chancellor Kevin Guskiewicz strongly condemned the remarks, as did the Dean of the College of Arts and Sciences and many others at UNC-Chapel Hill. Months later, the Faculty Council, the same one that originally endorsed the Chicago Principles, considered a resolution to “strongly condemn the antisemitic statements at the event.” The group decided to indefinitely postpone the resolution, avoiding taking a side on its merits. While some did feel strongly that the remarks were antisemitic, others viewed this as a mislabeling since the comments contained no mention of the Jewish religion or people and only directly criticized the actions of the Israeli state .

There is another tricky consideration – if the Faculty Council passes a resolution condemning antisemitism, must it follow this up with a condemnation of Islamophobia to ensure neutrality and inclusivity? Does this set a precedent by which the Faculty Council must condemn any speech it regards as harmful, even if the speech does not violate the UNC System or UNC-Chapel Hill free speech policies? Who decides what should and should not be condemned, and where is the line drawn regarding what warrants a comment?

Certainly, this is not to say that members of an institution cannot or should not speak up against violence or perceived hate. Still, at the institutional level, there are significant policy ramifications to consider in protecting free speech and thorough education [7]. Starting to weigh in on social and political issues is a slippery slope for universities because it creates an expectation of doing so for all issues. The authors of the Kalven Report anticipated this and promoted institutional neutrality, trying to make a university a simple facility where lively debates on the day’s topics can occur.

This is a perfectly reasonable argument, but there is another drastically different viewpoint. Is institutional neutrality just a convenient excuse for universities to stay silent and take the “easy way out?” [12]. At Indiana University (“IU”), administrators recently caused an uproar when they canceled a scheduled art exhibition by a Palestinian-American artist. IU administration cited security concerns as the reason for the cancellation. However, the artist, members of the IU community, and outside organizations speculate that the real reason is a reaction to comments by an Indiana congressman who threatened to withhold federal funding from IU if it failed to address perceived antisemitism concerns adequately [6].

Walking a political tightrope does not seem to be a legitimate reason for censorship at a public university. Institutional neutrality that allows for all viewpoints to be expressed is very different than a restrictive “institutional neutrality” that prohibits any viewpoints from being expressed. Universities risk establishing an orthodox view on campus by making statements or taking actions regulating free speech, thereby ostracizing alternative thinkers [9]. While a university might not be responsible for acting on social and political issues (the substance for a whole different debate), it does have a responsibility to facilitate an environment that considers social and political issues and equips its students to handle these difficult or delicate issues once they graduate.

Between a rock and a hard place

There are still so many unanswered questions regarding free speech on campus, and it is doubtful that a satisfactory solution will ever be reached. Any policy on free speech must consider legal constraints, institutional missions, and the feelings of students, faculty, and staff. With so many stakeholders to satisfy, it makes sense that the issue of free speech on campus keeps coming up.

During controversial times, it is helpful to remember that heated moments subside, and history reflects that. “Right answers” are hard to come by, but at the end of the day, a university that can keep its campus community safe and facilitate productive conversations is doing its job pretty well.

Watch CBS News

Supreme Court wary of restricting government contact with social media platforms in free speech case

By Melissa Quinn

Updated on: March 18, 2024 / 8:43 PM EDT / CBS News

Washington — The Supreme Court on Monday appeared wary of limiting the Biden administration's contacts with social media platforms in a closely watched dispute that  tests how much the government can  pressure social media companies to remove content before crossing a constitutional line from persuasion into coercion.

The case, known as Murthy v. Missouri, arose out of efforts during the early months of the Biden administration to push social media platforms to take down posts that officials said spread falsehoods about the pandemic and the 2020 presidential election. 

A U.S. district court judge said White House officials, as well as some federal agencies and their employees, violated the First Amendment's right to free speech by "coercing" or "significantly encouraging" social media sites' content-moderation decisions. The judge issued an injunction restricting the Biden administration's contacts with platforms on a variety of issues, though that order has been on hold.

During oral arguments on Monday, the justices seemed skeptical of a ruling that would broadly restrict the government's communications with social media platforms, raising concerns about hamstringing officials' ability to communicate with platforms about certain matters.

"Some might say that the government actually has a duty to take steps to protect the citizens of this country, and you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information," Justice Ketanji Brown Jackson told Benjamin Aguiñaga, the Louisiana solicitor general. "I'm really worried about that, because you've got the First Amendment operating in an environment of threatening circumstances from the government's perspective, and you're saying the government can't interact with the source of those problems."

Justice Amy Coney Barrett warned Aguiñaga that one of the proposed standards for determining when the government's actions cross the bound into unlawful speech suppression — namely when a federal agency merely encourages a platform to remove problematic posts — "would sweep in an awful lot." She questioned whether the FBI could reach out to a platform to encourage it to take down posts sharing his and other Louisiana officials' home addresses and calling on members of the public to rally.

Aguiñaga said the FBI could be encouraging a platform to suppress constitutionally protected speech.

The legal battle is one of five that the Supreme Court is considering this term that stand at the intersection of the First Amendment's free speech protections and social media. It was also the first of two that the justices heard Monday that involves alleged jawboning, or informal pressure by the government on an intermediary to take certain actions that will suppress speech.

The second case raises whether a New York financial regulator  violated the National Rifle Association's free speech rights  when she pressured banks and insurance companies in the state to sever ties with the gun rights group after the 2018 shooting in Parkland, Florida. Decisions from the Supreme Court in both cases are expected by the end of June.

The Biden administration's efforts to stop misinformation

The social media case stems from the Biden administration's efforts to pressure platforms, including Twitter, now known as X, YouTube and Facebook, to take down posts it believed spread falsehoods about the pandemic and the last presidential election.

Brought by five social media users and two states, Louisiana and Missouri, their challenge claimed their speech was stifled when platforms removed or downgraded their posts after strong-arming by officials in the White House, Centers for Disease Control, FBI and Department of Homeland Security.

The challengers alleged that at the heart of their case is a "massive, sprawling federal 'Censorship Enterprise,'" through which federal officials communicated with social media platforms with the goal of pressuring them to censor and suppress speech they disfavored.

U.S. District Judge Terry Doughty found that seven groups of Biden administration officials violated the First Amendment because they transformed the platforms' content-moderation decisions into state action by "coercing" or "significantly encouraging" their activities. He limited the types of communications agencies and their employees could have with the platforms, but included several carve-outs.

The U.S. Court of Appeals for the 5th Circuit then determined that certain White House officials and the FBI violated free speech rights when they coerced and significantly encouraged platforms to suppress content related to COVID-19 vaccines and the election. It narrowed the scope of Doughty's order but said federal employees could not "coerce or significantly encourage" a platform's content-moderation decisions.

The justices in October agreed to decide whether the Biden administration impermissibly worked to suppress speech on Facebook, YouTube and X. The high court temporarily paused the lower court's order limiting Biden administration officials' contact with social media companies.

In filings with the court, the Biden administration argued that the social media users and states lack legal standing to even bring the case, but said officials must be free "to inform, to persuade, and to criticize."

"This case should be about that fundamental distinction between persuasion and coercion," Brian Fletcher, principal deputy solicitor general, told the justices. 

Fletcher argued that the states and social media users were attempting to use the courts to "audit all of the executive branch communications with and about social media platforms," and said administration officials public statements are "classic bully pulpit exhortations."

But Aguiñaga told the justices that the platforms faced "unrelenting pressure" from federal officials to suppress protected speech.

"The government has no right to persuade platforms to violate Americans' constitutional rights," he said. "And pressuring platforms in in backrooms shielded from public view is not using the bully pulpit at all. That's just being a bully."

The oral arguments

Several of the justices questioned whether the social media users who brought the suit demonstrated that they suffered a clear injury traceable to the government or could show that an injunction against the government would correct future injuries caused by the platforms' content moderation, which much be shown to bring a challenge in federal courts.

"I have such a problem with your brief," Justice Sonia Sotomayor told Aguiñaga. "You omit information that changes the context of some of your claims. You attribute things to people that it didn't happen to. ... I don't know what to make of all this because I'm not sure how we get to prove direct injury in any way."

Aguiñaga apologized and said he takes "full responsibility" for any aspects of their filings that were not forthcoming.

Justice Elena Kagan asked Aguiñaga to point to the piece of evidence that most clearly showed that the government was responsible for his clients having material taken down.

"We know that there's a lot of government encouragement around here," she said. "We also know that the platforms are actively content moderating, and they're doing that irrespective of what the government wants, so how do you decide that it's government action as opposed to platform action?"

The justices frequently raised communications between the federal government and the press, which often involve heated discussions.

Justice Samuel Alito referenced emails between federal officials and platforms, some of which he said showed "constant pestering" by White House employees and requests for meetings with the social media sites.

"I cannot imagine federal officials taking that approach to the print media, our representatives over there," he said, referencing the press section in the courtroom. "If you did that to them, what do you think the reaction would be?"

Alito speculated that the reason why the federal officials felt free to pressure the platforms was because it has Section 230, a key legal shield for social media companies, and possible antitrust action "in its pocket," which he called "big clubs available to it." 

"It's treating Facebook and these other platforms like they're subordinates," Alito said. "Would you do that to the New York Times or the Wall Street Journal or the Associated Press or any other big newspaper or wire service?"

Fletcher conceded that officials' anger is "unusual," but said it's not odd for there to be a back-and-forth between White House employees and the media.

Kavanaugh, though, said that he "assumed, thought, experienced government press people throughout the federal government who regularly call up the media and berate them." He also noted that "platforms say no all the time to the government."

Chief Justice John Roberts — noting that he has "no experience coercing anybody" — said the government is "not monolithic, and that has to dilute the concept of coercion significantly." Roberts said one agency may be attempting to coerce a platform one way, while another may be pushing it to go the other direction.

The NRA's court fight

In the second case, the court considered whether the former superintendent of the New York State Department of Financial Services violated the NRA's free speech rights when she pushed regulated insurance companies and banks to stop doing business with the group.

Superintendent Maria Vullo, who left her post in 2019, had been investigating since 2017 two insurers involved in NRA-endorsed affinity programs, Chubb and Lockton, and determined they violated state insurance law. The investigation found that a third, Lloyd's of London, underwrote similar unlawful insurance products for the NRA.

Then, after the Parkland school shooting in February 2018, Vullo issued guidance letters that urged regulated entities "to continue evaluating and managing their risks, including reputational risks" that may arise from their dealings with the NRA or similar gun rights groups.

Later that year, the Department of Financial Services entered into consent decrees with the three insurance companies it was investigating. As part of the agreements, the insurers admitted they provided some unlawful NRA-supported programs and agreed to stop providing the policies to New York residents. 

The NRA then sued the department, alleging that Vullo privately threatened insurers with enforcement action if they continued working with the group and created a system of "informal censorship" that was designed to suppress its speech, in violation of the First Amendment.

A federal district court sided with the NRA, finding that the group sufficiently alleged that Vullo's actions "could be interpreted as a veiled threat to regulated industries to disassociate with the NRA or risk DFS enforcement action."

But a federal appeals court disagreed and determined that the guidance letters and a press release couldn't "reasonably be construed as being unconstitutionally threatening or coercive," because they "were written in an even-handed, nonthreatening tone" and used words intended to persuade, not intimidate.

The NRA appealed the decision to the Supreme Court, which agreed to consider whether Vullo violated the group's free speech rights when she urged financial entities to sever their ties with it.

"Allowing unpopular speech to form the basis for adverse regulatory action under the guise of 'reputational risk,' as Vullo attempted here, would gut a core pillar of the First Amendment," the group, which is represented in part by the American Civil Liberties Union, told the court in a filing .

The NRA argued that Vullo "openly targeted the NRA for its political speech and used her extensive regulatory authority over a trillion-dollar industry to pressure the institutions she oversaw into blacklisting the organization."

"In the main, she succeeded," the organization wrote. "But in doing so, she violated the First Amendment principle that government regulators cannot abuse their authority to target disfavored speakers for punishment."

Vullo, though, told the court that the insurance products the NRA was offering its members were unlawful, and noted that the NRA itself signed a consent order with the department after Vullo left office after it found the group was marketing insurance producers without the proper license from the state.

"Accepting the NRA's arguments would set an exceptionally dangerous precedent," lawyers for the state wrote in a Supreme Court brief. "The NRA's arguments would encourage damages suits like this one and deter public officials from enforcing the law — even against entities like the NRA that committed serious violations."

The NRA, they claimed, is asking the Supreme Court to give it "favored status because it espouses a controversial view," and the group has never claimed that it was unable to exercise its free speech rights.

• Biden Administration
• Supreme Court of the United States
• Social Media
• Free Speech

Melissa Quinn is a politics reporter for CBSNews.com. She has written for outlets including the Washington Examiner, Daily Signal and Alexandria Times. Melissa covers U.S. politics, with a focus on the Supreme Court and federal courts.

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Controversial Topic: Censorship and Freedom of Speech

The First Amendment in the Bill of Rights protects the freedom of speech, freedom of assembly, freedom of religious expression, and the right to a free press against government restriction. As a key component in the very first article of the Bill of Rights, free speech is among the most cherished and frequently-cited protections built into the U.S. Constitution. However, because the content of that speech and expression may itself provoke sharp disagreement, this controversial topic usually concerns differing ideas about what constitutes “protected speech” as well as the methods that should or shouldn’t be used to limit free speech. This underscores the debate around Freedom of Speech and Censorship. The ongoing public controversy over free speech this a popular persuasive essay topic.

Key Takeaways

• Freedom of speech enables people to express their opinions without restraints or censorship. While this component of democracy has been practiced since immemorial, some individuals still fail to see where to draw the line when practicing this freedom.
• Individuals need to understand that freedom of speech still has limitations. While the First Amendment doesn’t specifically identify what is and is not protected, the Supreme Court ruled that some forms of speech are not allowed.
• The only drawback of censorship is violating one’s freedom of speech. To prevent harmful information, censorship tends to restrict legitimate data. Therefore, people should know and understand censorship’s pros and cons.

In a sense which differentiates this topic from many other controversial topics, advocacy for free speech knows no specific political affiliation. This core principle of America’s founding-that the government shall make no law restricting or prohibiting free speech-is one shared by most Americans. And yet, there is an ongoing push and pull over how to interpret, protect, or limit free speech. The free speech debate topic in the U.S. concerns:

Advocacy for free speech knows no specific political affiliation. This core principle of America's founding-that the government shall make no law restricting or prohibiting free speech-is one shared by most Americans” – @AcademicInflux TWEET POST

• The unfettered exercise of First Amendment rights;
• Government efforts to place what are posited as approach limitations on such exercise; and
• Efforts by political groups, citizen groups and activists to confront and silence speech that it deems offensive.

The goal of this discussion is to examine the various perspectives shaping the public discussion over Censorship and Freedom of Speech, and to provide you with a look at some of the figures past and present who have influenced this discussion. The figures selected may not always be household names, but are instead selected to provide a nuanced look at the public discourse on this subject, and in some cases, even to provide you with a list of individuals to contact as part of your research.

A Brief History of The Issue

On December 15th, 1791, the first 10 amendments of the Bill of Rights were ratified as part of the United States Constitution. The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

This amendment has had a far-reaching impact on the formation of public life in America, from our practice of religion and our expression of art to our political affiliation, modes of protest, and our expectations of a free and fair press. The freedoms and protections implicated by the First Amendment are held as fundamental principles of the free and democratic society intended by the U.S. Constitution. First Amendment protections inform an array of rights that have been challenged and upheld over the course of more than two centuries.

The freedoms and protections implicated by the First Amendment are held as fundamental principles of the free and democratic society intended by the U.S. Constitution.” – @AcademicInflux TWEET POST

Though the First Amendment itself is held as fundamental, the reach of its protections has been frequently challenged, most notably by way of:

• Judicial precedent;
• State-sponsored censorship; and more recently,
• Public pressure campaigns aimed toward “cancellation” of figures perceived to be guilty of offensive speech.

These challenges represent the various ways that both those in positions of authority and portions of the public can advocate for limitations on the protections accorded in the First Amendment. In some cases, these limitations are not only advocated for, but accepted as legal precedent.

Limitations on Free Speech

While the First Amendment prohibits Congress from making laws to stifle free speech, court precedent has upheld the placement of certain limitations on modes of free speech. These exceptions to the First Amendment underscore the interpretative nature of this fundamental right, as well as the impetus to use limitations and modes of censorship for the declared purpose of protecting public safety. Wikipedia notes that “Numerous holdings of [the Supreme] Court attest to the fact that the First Amendment does not literally mean that we ‘are guaranteed the right to express any thought, free from government censorship.’”

The most consequential legal challenges surrounding freedom of speech do not question the basic premise of this freedom, but have instead centered on disputes around what should or should not be considered restricted speech.

• Inciting a Riot: The most famously-cited example of restricted speech comes from the 1919 case of Schenck v. United States , in which Supreme Court Justice Oliver Wendell Holmes, Jr. analogized that the First Amendment does not make lawful the act of “falsely shouting fire in a theatre and causing a panic.” This assessment informed a 1969 decision in Brandenburg v. Ohio that forms of speech may be restricted if it may be proven that this speech is directed toward, or likely to incite, a riot.
• The Fighting Words Doctrine: In the case of Chaplinsky v. New Hampshire , 315 U. S. 568 (1942), the court found that “Under New Hampshire’s Offensive Conduct law (chap. 378, para. 2 of the NH. Public Laws) it is illegal for anyone to address ‘any offensive, derisive or annoying word to anyone who is lawfully in any street or public place... or to call him by an offensive or derisive name.’” Case law has repeatedly confirmed this basic doctrine while substantially narrowing the definition of fighting words to the extent that a wide range of potentially offensive or hateful forms of speech remain protected as long as they are demonstrably public, and not personal, in the nature of their attack.
• Obscenity: Obscenity is perhaps the most debated area of free speech in the public forum. Obscenity is, by admission of the courts themselves, a difficult quality to define. However, precedent finds that forms of speech and expression which can be identified as obscene are not protected by the First Amendment, According to Roth v. United States , 354 U. S. 476 (1957), there is no protection for speech or expression which is “utterly without redeeming social importance,” and that, to “an average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.” In the most famous affirmation of Roth v. U.S., Justice Potter Stewart noted in Jacobellis v. Ohio (1964) , that “I shall not today attempt further to define the kinds of material I understand to be embraced... [b]ut I know it when I see it.” This highly subjective standard opens the floor for ongoing legal challenge and discourse over what is defined as obscene.
• Defamation: Defamation is a form of speech which is not protected by the First Amendment. Statements in public spaces or in print (and increasingly, on social media) may not be slanderous or libelous. However, the case of New York Times Co. v. Sullivan , 376 U. S. 254 (1964) found that there should be exceptions to the reach of defamation claims for those who are American public officials. The findings of this case denote that a statement must be proven to have been made with “actual malice”, meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true. In 1967, the case of Curtis Publishing Co. v. Butts extended that exception to all “public figures.”

Censorship in Media

In addition to the judicial limitations placed on First Amendment protections, there are ways that the U.S. government may place limits on the expression of free speech. These limits are referred to as censorship. Censorship is a function-typically performed by a government agency or an industry watchdog group-of identifying, preventing, and/or altering the scheduling or content contained in print or broadcast media. The stated goal of censorship is to prevent the public display of obscene material, or to prevent the exposure of indecent material to select audiences such as minors.

The standards around censorship have fluctuated over time, as has the level of strictness in the enforcement of these changing standards. The following are some prominent examples of how censorship occurs in various media sectors:

• The Hays Code: The Production Code -also called the Hays Code after the president of the Motion Picture Producers and Distributors of America (MPPDA) at the time-was a set of rules governing content in cinema. Adopted in 1930, and enforced with increasing strictness through the 1930s, the Hays Code determined “what was acceptable and what was unacceptable content for motion pictures produced for a public audience in the United States.” Filmmakers were required to meet the rigid standards set by the Production Code Association (PCA), which had a profound impact on film production by restricting sexual content, edgy language, and even political ideas. Though the PCA was not a government agency, Hollywood studios vested the PCA with its authority in order to be insulated from the threat of government fines and censorship. Increasing resistance and changing social mores led to the replacement of the Production Code, in 1968, with the MPAA film rating system that we know today. Rather than restricting content, this structure provides age advisories for certain content.
• Parents Music Resource Center (PMRC) : Popular music has also been a source for debate over censorship. In 1985, a bipartisan group of women who were married to prominent Washington figures formed the PMRC with the mission of “increasing parental control over the access of children to music deemed to have violent, drug-related or sexual themes via labeling albums with Parental Advisory stickers.” Identifying objectionable content in music by artists like Prince, Def Leppard, and Cyndi Lauper, the PMRC pressured record companies and broadcast outlets to disassociate with offensive artists and content. Their efforts culminated in a Senate hearing, where musicians Frank Zappa, Dee Snyder, and John Denver spoke on behalf of the music industry’s First Amendment rights. The outcome of these hearings was the industry-wide adoption of Parental Advisory stickers, warning consumers of the potentially explicit, sexual, or violent content within certain music releases. Major retailers like Wal-Mart adopted a policy thereafter of refusing to sell releases bearing this sticker, such that the PMRC’s efforts would have a direct economic impact on many artists.
• The Federal Communications Commission (FCC) : Unlike the Production Code Association and the Parents Music Resource Center, the FCC is a government agency with the power to issue fines and other penalties for violations of its standards. Though the FCC is tasked with the duty of censorship in broadcast media, it also expresses its duty to the First Amendment while outlining the judicial precedent justifying certain limitations on this Constitutional right.

Political Correctness and Cancel Culture

The First Amendment refers exclusively to the role of Congress where free speech is concerned. However, the present-day debate about freedom of speech is a bit more complex. Technically, the First Amendment protects a political figure’s right to express an unpopular opinion in a public forum, a celebrity’s right to say something offensive, or a journalist’s right to pen a racially insensitive blog post. Inherent to the First Amendment is the premise that the U.S. government may not create laws infringing on these rights.

However, this premise does not give the speaker immunity to the consequences of their speech. Unpopular speech may not incur government intervention, but it may provoke a response in the public space. Today, that public space includes the sprawling world of the internet, and by extension, social media. Online forums give every individual a public forum for free speech, but they also give broad cross-sections of the public an extremely powerful set of instruments for responding to unpopular speech.

The First Amendment refers exclusively to the role of Congress where free speech is concerned. However, the present-day debate about freedom of speech is a bit more complex.” – @AcademicInflux TWEET POST

The internet plays host to a perpetual tug of war between these two interests, and conflicts often produce real-world consequences:

• On one side of this divide are those who argue that controversial, offensive, and potentially hateful ideas should be met with debate, academic inquiry, and intellectual rigor.
• On the other side of this divide are those who view certain forms of speech as inherently destructive, and who therefore employ various forms of in-person and online activism to silence and punish offending speakers as a means of preventing the proliferation of potentially dangerous or injurious speech.

Many staunch First Amendment advocates argue that silencing offending ideas is contrary both to the spirit of the U.S. Constitution, and to the aims of honest academic inquiry. Some argue that a form of extreme “political correctness”-the policing of thoughts, ideas, and speech through public and social pressure-is counter-democratic. Those who hold this view accuse activists of using “cancel culture”-public, online campaigns aimed at shaming offending speakers and having them stripped of status, employment, and public speaking platforms. Numerous journalists, comedians, and university professors who are accused of offending speech have been subjected to this form of cultural “cancellation.”

Activists who undertake these public campaigns argue that their methods are not meant to restrict free speech, but to bring negative attention to those who use their freedom of expression for hateful, dangerous, or destructive purposes. The aim of “cancellation”, its advocates would argue, is to demand greater accountability from individuals who use public platforms to discriminate or otherwise exclude marginalized groups, as well as the organizations that provide such speakers with those platforms.

The aim of “cancellation”, its advocates would argue, is to demand greater accountability from individuals who use public platforms to discriminate or otherwise exclude marginalized groups, as well as the organizations that provide such speakers with those platforms.” – @AcademicInflux TWEET POST

Using our own backstage Ranking Analytics tools, we’ve compiled a list of the most influential figures concerning the issue of free speech in the U.S. between 1900 and 2020. This list is vetted to exclude political heads of state. The remaining figures are a combination of free speech activists, Supreme Court Justices who have made consequential rulings on the matter, and authors or thinkers who have produced content challenging limitations on free speech.

Using our own backstage Ranking Analytics tools, we’ve compiled a list of the most influential books on the topic of free speech in the U.S. between 1900 and 2020. This list is vetted to exclude religious scriptures, and is largely comprised of both texts about the topics of free speech and censorship, and books whose content has ignited debate over free speech and censorship.

The Current Controversy

This controversy is unique in that few participants in the debate would characterize themselves as opponents of free speech:

• Those rendering judicial rulings placing limitations on First Amendment protections would argue that they do so for reasons of public safety.
• Those performing in an official capacity as government-sponsored censors would argue that they are responsible for protecting the public from unwanted exposure to indecency and obscenity.
• Those engaging in social activism aimed at hateful speech would argue that they are working to make public speech less dangerous and more inclusive.

Those who perform these functions argue that such limitations are critical to the preservation of the First Amendment. And yet, in each case, there are also many First Amendment advocates who argue that our protections extend beyond these attempts at limitation.

All of this underscores the complexity surrounding the current controversy. Most of the influencers identified here-with just a few exceptions-would characterize themselves as advocates for free speech. Therefore, this is not merely a dispute between the supporters and opponents of censorship. Instead, there is a far more nuanced conversation here about what constitutes protected speech, and how different figures, both past and present, have either exercised their rights, protected the rights of others, or advocated for limitations of free speech.

A Quick Overview of Our Methods

Our goal in presenting subjects that generate controversy is to provide you with a sense of some of the figures both past and present who have driven debate, produced recognized works of research, literature or art, proliferated their ideas widely, or who are identified directly and publicly with some aspect of this debate. By identifying the researchers, activists, journalists, educators, academics, and other individuals connected with this debate-and by taking a closer look at their work and contributions-we can get a clear but nuanced look at the subject matter. Rather than framing the issue as one side versus the other, we bring various dimensions of the issue into discussion with one another. This will likely include dimensions of the debate that resonate with you, some dimensions that you find repulsive, and some dimensions that might simply reveal a perspective you hadn’t previously considered.

For a look at how we handle the risk of spotlighting a potentially repulsive influencer, check out Influence and Infamy: The Case of Osama bin Laden .

Our InfluenceRanking engine gives us the power to scan the academic and public landscape surrounding the free speech issue using key terminology to identify consequential influencers. As with any topic that generates public debate and disagreement, this is a subject of great depth and breadth. We do not claim to probe either the bottom of this depth or the borders of this breadth. Instead, we offer you one way to enter into this debate, to identify key players, and through their contributions to the debate, to develop a fuller understanding of the issue and perhaps even a better sense of where you stand.

For a closer look at how our InfluenceRankings work, check out our methodology .

Otherwise, read on for a look at influencers associated with an array of key terms.

Anti-Censorship

First amendment advocates, first amendment rights, free speech, freedom of speech.

• Obscenity Law
• Film Censors
• Political Correctness
• Cancel Culture

Individuals dedicated to anti-censorship are figures who have used activism, literature, journalism, and other public platforms to resist forms of government censorship, to support the legal and technical efforts of those impacted by what they view as unjust government censorship, and to help marginalized individuals and groups achieve equal opportunities for freedom of expression.

Influencers:

• Bennett Haselton is the founder of Circumventor.com and Peacefire.org, two US-based websites dedicated to combating Internet censorship. Peacefire.org is focused on documenting flaws in commercial Internet blocking programs. Circumventor.com is dedicated to distributing anti-censorship tools to users in countries such as China and Iran, and as of 2011 has over 3 million subscribers through distribution channels including email and Facebook pages.
• Avedon Carol is an American-born British feminist, anti-censorship, and civil liberties campaigner and a researcher in the field of sex crime, residing in England. She is a member of Feminists Against Censorship, and as part of their publishing group co-edited Bad Girls & Dirty Pictures . She is the author of Nudes, Prudes & Attitudes , and has also worked on other books by Feminists Against Censorship. On her own website, “Avedon’s Sideshow”, she publishes and compiles links to a wide array of stories and events.
• Jane Vance Rule, CM, OBC was a Canadian writer of lesbian-themed works. Her first novel, Desert of the Heart , appeared in 1964, when gay activity was still a criminal offence. It turned Rule into a reluctant media celebrity, and brought her massive correspondence from women who had never dared explore lesbianism. She did not, however, support gay marriage. Rule became an active anti-censorship campaigner, and served on the executive of the Writers’ Union of Canada.

First Amendment advocates are those who undertake efforts through journalism, activism, and legal advocacy to advance free speech rights for individuals impacted by censorship or government-sponsored silencing.

• Lawrence G. Walters is an American First Amendment attorney and anti-censorship advocate. He is the head of the Walters Law Group, focusing on First Amendment and Internet Law, and has served as an Adjunct Professor of Legal Studies at the University of Central Florida.
• Zechariah Chafee Jr. , was an American judicial philosopher and civil rights advocate, described as “possibly the most important First Amendment scholar of the first half of the twentieth century” by Richard Primus. Chafee’s avid defense of freedom of speech led to Senator Joseph McCarthy calling him “dangerous” to America.
• Vanessa Leggett is a freelance journalist, author, lecturer, and First Amendment advocate who was jailed by the U.S. Justice Department for 168 days for protecting sources and research notes for an independent book about a federal murder-for-hire case. At the time, it was the longest contempt-of-court imprisonment of a journalist in United States history for protecting sources.

The various judicial rulings surrounding the First Amendment have helped to define the Constitutionally-protected rights of Americans and the limitations on those rights. Civil rights attorneys and activists have had a particularly profound influence in this area, helping to produce legal decisions that have at once expanded and more clearly defined these rights.

• Ron Coleman is an American lawyer and journalist who is an expert on First Amendment and intellectual property rights, especially pertaining to the Internet. Coleman, general counsel for the Media Bloggers Association, wrote in 1995 the first article on intellectual property rights and the Internet published in the American Bar Association Journal. In 1998, Coleman represented Brodsky in the cybersquatting dispute Jews for Jesus v. Brodsky and defended The National Debate’s online parody of The New York Times’s corrections page. In 2015, Coleman represented Simon Tam in In Re Tam, a trademark.
• Carla Gericke is an author, activist, and attorney. Born in South Africa, she immigrated to America in the mid-Nineties after winning a green card in the Diversity Visa Lottery. She became a U.S. citizen in 2000. Gericke practiced law in South Africa, and California, working at Apple Computer, Borland, Logitech, and Scient Corporation. Gericke is President Emeritus of the Free State Project. In 2014, she won a landmark First Circuit Court of Appeals case that affirmed the First Amendment right to film police officers.
• Alexander Peter Allain became one of the United States’ most adamant fighters for the freedom of expression though his work as a lawyer and library advocate. His career was devoted to securing First Amendment rights for libraries.

Referring to the exercise of the First Amendment, free speech has frequently been challenged and tested, particularly when it runs contrary to mainstream views of decency. For this reason, many prominent disputes over free speech have involved representatives of the adult film industry, the artistic avant garde, or advocates of religious liberties.

• Gloria Leonard was an American pornographic actress who became the publisher of High Society magazine. As a board member of Adult Video Association and its successor the Free Speech Coalition, Leonard was an outspoken advocate for the adult film industry and free speech rights.
• Susan Benesch is an American journalist and scholar of speech who is known for founding the Dangerous Speech Project. Benesch is a free speech advocate, recommending the use of counterspeech rather than censorship to delegitimize harmful speech.
• Steven Gey was an American legal academic and one of the leading US scholars on religious liberties and free speech. He was David and Deborah Fonvielle and Donald and Janet Hinkle Professor at Florida State University College of Law. His scholarship includes Cases and Materials on Religion and the State and dozens of articles on religious liberties, free speech, and constitutional interpretation. Gey was an active participant in national debates regarding the teaching of evolution in public schools and he served as a regular commentator on legal issues for ABC News in the aftermath of the 2000 presidential election. In 2007, he received the “Friend of Darwin Award” from the National Center for Science Education, recognizing his tireless advocacy for the teaching of science in schools.

The phrase “freedom of speech” carries a Constitutional overtone, and implies the shared understanding that this is an inalienable right protected by the First Amendment. Those affiliated with the phrase are often political science scholars, legal scholars, and civil rights attorneys who have helped to more explicitly define what the First Amendment intends through this protection.

• Murray Dry is an American political scientist specializing in American constitutional law, American political thought, political philosophy, freedom of speech, freedom of religion, federalism, separation of powers, and the American founding. He is perhaps most noted for having helped to compile The Complete Anti-Federalist with his former teacher Herbert Storing. He is currently the Charles A. Dana Professor of Political Science at Middlebury College, having earned his BA, MA, and Ph.D at the University of Chicago, where he studied under Storing and Leo Strauss, among others. For the 2009-2010 academic year, he was a Visiting Professor at Yeshiva University. His current area of research is in the constitutionality of same-sex marriage, and he recently published a book on that subject.
• Harriet Fleischl Pilpel was an American attorney and women’s rights activist. She wrote and lectured extensively regarding the freedom of speech, freedom of the press, and reproductive freedom. Pilpel served as general counsel for both the American Civil Liberties Union and Planned Parenthood. During her career, she participated in 27 cases that came before the United States Supreme Court. Pilpel was involved in the birth control movement and the pro-choice movement. She helped to establish the legal rights of minors to abortion and contraception.
• Judith Fingeret Krug was an American librarian, freedom of speech proponent, and critic of censorship. Krug became director of the Office for Intellectual Freedom at the American Library Association in 1967. In 1969, she joined the Freedom to Read Foundation as its executive director. Krug co-founded Banned Books Week in 1982.

Obscenity Law/Film Censor

Though the key term search yielded zero influencers who were identified as “pro-censorship,” the terms “obscenity law” and “film censor” yielded some examples of those who, through their official capacities in law enforcement or public administration, placed limitations upon the conditions of free speech.

• Roy Early Blick was the director of the Morals Division of the Metropolitan Police Department of the District of Columbia in the United States during the mid-twentieth-century. He oversaw investigation of and apprehension for offenses related to burlesque, pornography, child pornography, and other obscenity and indecency, prostitution, crimes of “sex perversion” including homosexuality, and gambling. Even before becoming director of the Morals Division, during his preceding career with the MPD, he was consulted by US federal lawmakers, testified before Congress on several occasions, and worked with the FBI on related law enforcement matters. Freedom of Information Act lawsuits in the twenty-first century revealed previously-classified documents indicating frequent meetings and correspondence between the Central Intelligence Agency and Blick during his service as a police official.
• Lloyd Tilghman Binford was an American insurance executive and film censor who was the head of the Memphis Censor Board for 28 years.
• Joseph Ignatius Breen was an American film censor with the Motion Picture Producers and Distributors of America who applied the Hays Code to film production.
• John Trevelyan, CBE was Secretary of the Board of the British Board of Film Censors from 1958 to 1971.

Political Correctness/Cancel Culture

These phrases are often wielded satirically or derisively to characterize those who would place limitations on free speech through forms of grassroots activism aimed at shaming or punishing those they view as being guilty of offensive, hateful, or marginalizing speech. These terms did not yield evidence of influencers who are opposed to free speech, but instead, yielded a group of influencers who tend to invoke controversy through their exercise of free speech, and who are derisive of these forms of activism.

• Milo Yiannopoulos , or pen name Milo Andreas Wagner, is a British far-right political commentator, polemicist, public speaker and writer. Through his speeches and writings, he ridicules Islam, feminism, social justice, and political correctness. Yiannopoulos is a former editor for Breitbart News , a far-right media organization. Leaked emails have shown that his book Dangerous and many of his Breitbart articles were ghost-written by a Breitbart colleague.
• Scott Norvell is a blogger and columnist for the Fox News Website, having run a column there since 2001. Norvell’s blog and column at Fox News, entitled “Tongue Tied”, details incidents of what he considers extreme “political correctness”. He is also the primary author of the former website www.tonguetied.us which deals with similar issues of language use, American politics, and international politics. The top of the site quotes the First Amendment to the United States Constitution.
• Kathy Shaidle is a Canadian author, columnist, poet and blogger. A self-described “anarcho-peacenik” in the early years of her writing career, she moved to a conservative, Roman Catholic position following the September 11 attacks, and entered the public eye as the author of the popular RelapsedCatholic blog. Citing some points of friction with her faith, Shaidle relaunched her blogging career under her current FiveFeetofFury blog. Her views on Islam, political correctness, freedom of speech, and other issues have ignited controversy.
• Mona Charen Parker is a columnist, journalist, political commentator, and writer in the United States. She has written three books: Useful Idiots: How Liberals Got it Wrong in the Cold War and Still Blame America First , Do-Gooders: How Liberals Hurt Those They Claim to Help , both New York Times bestsellers, and Sex Matters: How Modern Feminism Lost Touch with Science, Love, and Common Sense . She was also a weekly panelist on CNN’s Capital Gang until it was canceled. A political conservative, she often writes about foreign policy, terrorism, politics, poverty, family structure, public morality, and culture. She is also known for her generally pro-Israel views.

Influential Organizations Involved in the Censorship and Freedom of Speech Controversy

If you would like to study this topic in more depth, check out these key organizations...

• Federal Communications Commission
• Parents Music Resource Center
• The Motion Picture Association (MPA)

Free Speech Advocates

• American Civil Liberties Union
• First Amendment Coalition
• National Coalition Against Censorship

Interested in building toward a career on the front lines of the Censorship and Freedom of Speech? As you can see, there are many different avenues into this far-reaching issue. Use our Custom College Ranking to find:

• The Most Influential Law Degrees
• The Most Influential Communications Degrees
• The Most Influential Political Science Degrees

A Further Examination of the Debate For and Against Freedom of Speech and Censorship

Freedom of expression is a fundamental right in a democratic society! Freedom of speech allows free expression thru the free exchange of ideas, information, and opinions, thus allowing people to come up with their own opinions on issues of public importance.

Free speech supports a free and independent press, transparent functioning of the state, and informed citizenship.

Conversely, censorship suppresses one’s ideas, words, or images that some people might find offensive to them. For thousands of years, censorship has been a part of human society.

Today, not only lawmakers but agencies keep our right to speech protected or safeguarded, such as the Federal Communications Commission! Specific rules and regulations are set when it comes to restricting spoken words and written information, such as in the case of crafting hate speech and communicating what could be categorized as sexual conduct!

Freedom of Expression Pros and Cons

Freedom of expression pros.

It protects everybody from the influence of special interests: When people hold power, they have this innate feeling that they can do whatever they can to hold on to that power for as long as possible.

This may include a government constitution change, a private media company favoring their Board of Directors, or the suppression of some minority groups that harms the people involved.

With the freedom of speech, this power can be significantly reduced because people are allowed to express what they truly feel about those who are in power. There is nothing to fear of losing personal freedom because everybody’s opinion will contribute to the conversation.

It eliminates compelled actions. When people have freedom of expression, the government cannot compel their actions in a way that they need to speak a specific message. You control what you want and how you want to express those words.

Granting that the government does attempt to change your words to its advantage, you will still have the chance to address the issue and correct the ‘mistakes’ that others create in your work.

Freedom of Expression Cons

Freedom of Expression does not mean you have the freedom to practice “ALL” speech: Freedom of speech allows you to express what you want in a way that does not create legal consequences for you.

Even if your comments are rude or unsavory, you still have the right to express them. However, there are four types of speech in the US that are not allowed under the First Amendment:

• You cannot express any authentic threats against somebody.
• Defaming, including slander and libel, are illegal.
• Plagiarizing any copyrighted materials is now allowed.
• You cannot share obscene materials, like child pornography.

Freedom of Expression can breed false information: Because of the rise of the Internet, some people tend to abuse freedom of speech. They can easily spread false information and still get away with it.

Interested in diving into another one of our controversial topics? Check out The 30 Most Controversial Topics Today!

For study starters, influential books, and much more, check out our full collection of study guides .

Or get tips on studying, student life, and much more with a look at our Student Resources .

How Trump’s Allies Are Winning the War Over Disinformation

Their claims of censorship have successfully stymied the effort to filter election lies online.

Three years after Mr. Trump spread falsehoods about his defeat online, social media platforms have fewer checks on the intentional spread of lies about elections. Credit... Emily Elconin for The New York Times

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By Jim Rutenberg and Steven Lee Myers

• March 17, 2024

In the wake of the riot on Capitol Hill on Jan. 6, 2021, a groundswell built in Washington to rein in the onslaught of lies that had fueled the assault on the peaceful transfer of power.

Social media companies suspended Donald J. Trump, then the president, and many of his allies from the platforms they had used to spread misinformation about his defeat and whip up the attempt to overturn it. The Biden administration, Democrats in Congress and even some Republicans sought to do more to hold the companies accountable. Academic researchers wrestled with how to strengthen efforts to monitor false posts.

Mr. Trump and his allies embarked instead on a counteroffensive, a coordinated effort to block what they viewed as a dangerous effort to censor conservatives.

They have unquestionably prevailed.

Waged in the courts, in Congress and in the seething precincts of the internet, that effort has eviscerated attempts to shield elections from disinformation in the social media era. It tapped into — and then, critics say, twisted — the fierce debate over free speech and the government’s role in policing content.

Projects that were once bipartisan, including one started by the Trump administration, have been recast as deep-state conspiracies to rig elections. Facing legal and political blowback, the Biden administration has largely abandoned moves that might be construed as stifling political speech.

While little noticed by most Americans, the effort has helped cut a path for Mr. Trump’s attempt to recapture the presidency. Disinformation about elections is once again coursing through news feeds, aiding Mr. Trump as he fuels his comeback with falsehoods about the 2020 election.

“The censorship cartel must be dismantled and destroyed, and it must happen immediately,” he thundered at the start of his 2024 campaign.

The counteroffensive was led by former Trump aides and allies who had also pushed to overturn the 2020 election. They include Stephen Miller, the White House policy adviser; the attorneys general of Missouri and Louisiana, both Republicans; and lawmakers in Congress like Representative Jim Jordan, Republican of Ohio, who since last year has led a House subcommittee to investigate what it calls “the weaponization of government.”

Those involved draw financial support from conservative donors who have backed groups that promoted lies about voting in 2020. They have worked alongside an eclectic cast of characters, including Elon Musk, the billionaire who bought Twitter and vowed to make it a bastion of free speech, and Mike Benz, a former Trump administration official who previously produced content for a social media account that trafficked in posts about “white ethnic displacement.” (More recently, Mr. Benz originated the false assertion that Taylor Swift was a “psychological operation” asset for the Pentagon.)

Three years after Mr. Trump’s posts about rigged voting machines and stuffed ballot boxes went viral, he and his allies have achieved a stunning reversal of online fortune. Social media platforms now provide fewer checks against the intentional spread of lies about elections.

“The people that benefit from the spread of disinformation have effectively silenced many of the people that would try to call them out,” said Kate Starbird, a professor at the University of Washington whose research on disinformation made her a target of the effort.

It took aim at a patchwork of systems, started in Mr. Trump’s administration, that were intended to protect U.S. democracy from foreign interference. As those systems evolved to address domestic sources of misinformation, federal officials and private researchers began urging social media companies to do more to enforce their policies against harmful content.

That work has led to some of the most important First Amendment cases of the internet age, including one to be argued on Monday at the Supreme Court. That lawsuit, filed by the attorneys general of Missouri and Louisiana, accuses federal officials of colluding with or coercing the platforms to censor content critical of the government. The court’s decision, expected by June, could curtail the government’s latitude in monitoring content online.

The arguments strike at the heart of an unsettled question in modern American political life: In a world of unlimited online communications, in which anyone can reach huge numbers of people with unverified and false information, where is the line between protecting democracy and trampling on the right to free speech?

Even before the court rules, Mr. Trump’s allies have succeeded in paralyzing the Biden administration and the network of researchers who monitor disinformation.

Officials at the Department of Homeland Security and the State Department continue to monitor foreign disinformation, but the government has suspended virtually all cooperation with the social media platforms to address posts that originate in the United States.

“There’s just a chilling effect on all of this,” said Nina Jankowicz, a researcher who in 2022 briefly served as the executive director of a short-lived D.H.S. advisory board on disinformation. “Nobody wants to be caught up in it.”

Fighting the ‘interpretive battle’

For Mr. Trump, banishment from social media was debilitating. His posts had been central to his political success, as was the army of adherents who cheered his messages and rallied behind his effort to hold onto office after he lost.

“WE have to use TIKTOK!!” read a memo prepared for Mr. Trump’s lead lawyer, Rudolph W. Giuliani, referring to a strategy to use social media to promote false messages about dead voters and vote-stealing software. “Content goes VIRAL here like no other platform!!!!! And there are MILLIONS of Trump supporters!”

After the violence on Jan. 6, Trump aides started working on how to “win the interpretive battle of the Trump history,” as one of them, Vincent Haley, had said in a previously unreported message found in the archives of the House investigation into the Jan. 6 attack. That would be crucial “for success in 2022 and 2024,” he added.

Once out of office, Mr. Trump built his own social platform, Truth Social, and his aides created a network of new organizations to advance the Trump agenda — and to prepare for his return.

Mr. Miller, Mr. Trump’s top policy adviser , created America First Legal, a nonprofit, to take on, as its mission statement put it, “an unholy alliance of corrupt special interests, big tech titans, fake news media and liberal Washington politicians.”

He solicited funding from conservative donors, drawing on a $27 million contribution from the Bradley Impact Fund , which had financed a web of groups that pushed “voter fraud” conspiracies in 2020. Another $1.3 million came from the Conservative Partnership Institute, considered the nonprofit nerve center of the Trump movement.

A key focus would be what he perceived as bias against conservatives on social media. “When you see people being banned off of Twitter and Facebook and other platforms,” he said in January 2021, “what you are seeing is the fundamental erosion of the concept of liberty and freedom in America.”

Mr. Biden’s administration was moving in the other direction. He came into office determined to take a tougher line against misinformation online — in large part because it was seen as an obstacle to bringing the coronavirus pandemic under control. D.H.S. officials were focused on bolstering defenses against election lies, which clearly had failed ahead of Jan. 6.

In one respect, that was clearer cut than matters of public health. There have long been special legal protections against providing false information about where, when and how to vote or intentionally sowing public confusion , or fear, to suppress voting.

Social media, with its pipeline to tens of millions of voters, presented powerful new pathways for antidemocratic tactics, but with far fewer of the regulatory and legal limits that exist for television, radio and newspapers.

The pitfalls were also clear: During the 2020 campaign, platforms had rushed to bury a New York Post article about Hunter Biden’s laptop out of concern that it might be tied to Russian interference. Conservatives saw it as an attempt to tilt the scales to Mr. Biden.

Administration officials said they were seeking a delicate balance between the First Amendment and social media’s rising power over public opinion.

“We’re in the business of critical infrastructure, and the most critical infrastructure is our cognitive infrastructure,” said Jen Easterly, the director of the Cybersecurity and Infrastructure Security Agency, whose responsibilities include protecting the national voting system. “Building that resilience to misinformation and disinformation, I think, is incredibly important.”

In early 2022, D.H.S. announced its first major answer to the conundrum: the Disinformation Governance Board. The board would serve as an advisory body and help coordinate anti-disinformation efforts across the department’s bureaucracy, officials said. Its director was Ms. Jankowicz, an expert in Russian disinformation.

The announcement ignited a political firestorm that killed the board only weeks after it began operating. Both liberals and conservatives raised questions about its reach and the potential for abuse.

The fury was most intense on the right. Mr. Miller, speaking on Fox News, slammed it as “something out of a dystopian sci-fi novel.”

Ms. Jankowicz said that such attacks were distorting but acknowledged that the announcement had struck a nerve.

“I think any American, when you hear, ‘Oh, the administration, the White House, is setting up something to censor Americans,’ even if that has no shred of evidence behind it, your ears are really going to prick up,” she said.

A legal assault

Among those who took note was Eric Schmitt, then the attorney general of Missouri.

He and other attorneys general had been a forceful part of Mr. Trump’s legal campaign to overturn his defeat. Now, they would lend legal firepower to block the fight against disinformation.

In May 2022, Mr. Schmitt and Jeff Landry, then the attorney general of Louisiana and now the governor, sued dozens of federal officials, including Dr. Anthony S. Fauci, the nation’s top expert on infectious diseases, who had become a villain to many conservatives.

The lawsuit picked up where others had failed. Mr. Trump and others had sued Facebook and Twitter, but those challenges stalled as courts effectively ruled that the companies had a right to ban content on their sites. The new case, known as Missouri v. Biden, argued that companies were not just barring users — they were being coerced into doing so by government officials.

The attorneys general filed the lawsuit in the Western District of Louisiana, where it fell to Judge Terry A. Doughty, a Trump appointee who had built a reputation for blocking Biden administration policies.

“A lot of these lawsuits against social media companies themselves were just dying in the graveyard in the Northern District of California,” Mr. Schmitt, who was elected to the U.S. Senate in 2022, said, referring to the liberal-leaning federal court in San Francisco. “And so our approach was a little bit different. We went directly at the government.”

The lawsuit was considered a long shot by experts, who noted that government officials were not issuing orders but urging the platforms to enforce their own policies. The decision to act was left to the companies, and more often than not, they did nothing.

Documents subpoenaed for the case showed extensive interactions between government officials and the platforms. In emails and text messages, people on both sides were alternately cooperative and confrontational. The platforms took seriously the administration’s complaints about content they said was misleading or false, but at the same time, they did not blindly carry out its bidding.

On Mr. Biden’s third day in office, a White House aide, Clarke Humphrey, wrote to Twitter flagging a post by Robert F. Kennedy Jr. falsely suggesting that the death of Hank Aaron, the baseball legend, had been caused by the Covid-19 vaccines. She asked an executive at the platform to begin the process of removing the post “as soon as possible.”

The post is still up.

Reframing the debate

In August 2022, a new organization, the Foundation for Freedom Online, posted a report on its website called “Department of Homeland Censorship: How D.H.S. Seized Power Over Online Speech.”

The group’s founder, a little-known former White House official named Mike Benz, claimed to have firsthand knowledge of how federal officials were “coordinating mass censorship of the internet.”

At the heart of Mr. Benz’s theory was the Election Integrity Partnership, a group created in the summer of 2020 to supplement government efforts to combat misinformation about the election that year.

The idea came from a group of college interns at the Cybersecurity and Infrastructure Security Agency, known as CISA. The students suggested that research institutions could help track and flag posts that might violate the platforms’ standards, feeding the information into a portal open to the agency, state and local governments and the platforms.

The project ultimately involved Stanford University, the University of Washington, the National Conference on Citizenship, the Atlantic Council’s Digital Forensic Research Lab and Graphika, a social media analytics firm. At its peak, it had 120 analysts, some of whom were college students.

It had what it considered successes, including spotting — and helping to stop — the spread of a false claim that a poll worker was burning Trump ballots in Erie, Pa. The approach could misfire, though. A separate, but related, CISA system flagged a tweet from a New York Times reporter accurately describing a printer problem at a voter center in Wisconsin, leading Twitter to affix an accuracy warning.

Decisions about whether to act remained with the platforms, which, in nearly two out of every three cases, did nothing.

In Mr. Benz’s telling, however, the government was using the partnership to get around the First Amendment, like outsourcing warfare to the private military contractor Blackwater.

Mr. Benz’s foundation for a time advertised itself as “a project of” Empower Oversight , a Republican group created by former Senate aides to support “whistle-blower” investigations.

Mr. Benz had previously lived a dual life. By day, he was a corporate lawyer in New York. In his off-hours, he toiled online under a social media avatar, Frame Game Radio, which railed against “the complete war on free speech” as it produced racist and antisemitic posts.

In videos and posts, Frame Game identified himself as a onetime member of the “Western chauvinist” group the Proud Boys, and as a Jew. Yet he blamed Jewish groups when he and others were suspended by social media companies. Warning about a looming demographic “white genocide,” Frame Game vented, “Anything pro white is called racist; anything white positive is racist.”

Mr. Benz did not respond to requests for comment. After NBC News first reported on Frame Game last fall, Mr. Benz called the account “a deradicalization project” to which he contributed in a “limited manner.” It was intended, he wrote on X, “by Jews to get people who hated Jews to stop hating Jews.”

Toward the end of 2018, Mr. Benz joined the Trump administration as a speechwriter for the housing and urban development secretary, Ben Carson. Mr. Benz’s posts were discovered by a colleague and brought to department management, according to a former official who insisted on anonymity to discuss a personnel matter.

As the election between Mr. Trump and Mr. Biden heated up, he joined Mr. Miller’s speech-writing team at the White House. He was there through the early days of the effort to keep Mr. Trump in power, and was involved in the search for statistical anomalies that could purport to show election fraud, according to testimony and records collected by House investigators, some of which were first uncovered by Kristen Ruby, a social media and public relations strategist.

In late November 2020, Mr. Benz was abruptly moved to the State Department as a deputy assistant secretary for international communications and information policy. It is unclear precisely what he did in the role. Mr. Benz has since claimed that the job, which he held for less than two months, gave him his expertise in cyberpolicy.

Mr. Benz’s report gained national attention when a conservative website, Just the News, wrote about it in September 2022. Four days later, Mr. Schmitt’s office sent requests for records to the University of Washington and others demanding information about their contacts with the government.

Mr. Schmitt soon amended his lawsuit to include nearly five pages detailing Mr. Benz’s work and asserting a new, broader claim: Not only was the government exerting pressure on the platforms, but it was also effectively deputizing the private researchers “to evade First Amendment and other legal restrictions.”

The scheme, Mr. Benz said, had “ambitious sights for 2022 and 2024.”

‘An aha moment’

In October 2022, Mr. Musk completed his purchase of Twitter and vowed to make the platform a forum for unfettered debate.

He quickly reversed the barring of Mr. Trump — calling it “morally wrong” — and loosened rules that had caused the suspensions of many of his followers.

He also set out to prove that Twitter’s previous management had too willingly cooperated with government officials. He released internal company communications to a select group of writers, among them Matt Taibbi and Michael Shellenberger.

The resulting project, which became known as the Twitter Files, began with an installment investigating Twitter’s decision to limit the reach of the Post article about Hunter Biden’s laptop.

The author of that dispatch, Mr. Taibbi, concluded that Twitter had limited the coverage amid general warnings from the F.B.I. that Russia could leak hacked materials to try to influence the 2020 election. Though he was critical of previous leadership at Twitter, he reported that he saw no evidence of direct government involvement.

In March 2023, Mr. Benz joined the fray. Both Mr. Taibbi and Mr. Benz participated in a live discussion on Twitter, which was co-hosted by Jennifer Lynn Lawrence, an organizer of the Trump rally that preceded the riot on Jan. 6.

As Mr. Taibbi described his work, Mr. Benz jumped in: “I believe I have all of the missing pieces of the puzzle.”

There was a far broader “scale of censorship the world has never experienced before,” he told Mr. Taibbi, who made plans to follow up.

Later, Mr. Shellenberger said that connecting with Mr. Benz had led to “a big aha moment.”

“The clouds parted, and the sunlight burst through the sky,” he said on a podcast. “It’s like, oh, my gosh, this guy is way, way farther down the rabbit hole than we even knew the rabbit hole went.”

A platform in Congress

A week after that online meeting, Mr. Taibbi and Mr. Shellenberger appeared on Capitol Hill as star witnesses for the Select Subcommittee on the Weaponization of the Federal Government. Mr. Benz sat behind them, listening as they detailed parts of his central thesis: This was not an imperfect attempt to balance free speech with democratic rights but a state-sponsored thought-policing system.

Mr. Shellenberger titled his written testimony, “The Censorship Industrial Complex.”

The committee had been created immediately after Republicans took control of the House in 2023 with a mandate to investigate, among other things, the actions taken by social media companies against conservatives.

It was led by Mr. Jordan, a lawmaker who helped spearhead the attempt to block certification of Mr. Biden’s victory and who has since worked closely with Mr. Miller and America First Legal.

“There are subpoenas that are going out on a daily, weekly basis,” Mr. Miller told Fox News in the first days of Republican control of the House, showing familiarity with the committee’s strategy.

Mr. Jordan’s committee soon sought documents from all those involved in the Election Integrity Partnership, as well as scores of government agencies and private researchers.

Mr. Miller followed with his own federal lawsuit on behalf of private plaintiffs in Missouri v. Biden, filing with D. John Sauer, the former solicitor general of Missouri who had led that case. (More recently, Mr. Sauer has represented Mr. Trump at the Supreme Court.)

Democrats in the House and legal experts questioned the collaboration as potentially unethical. Lawyers involved in the case have claimed that the subcommittee leaked selective parts of interviews conducted behind closed doors to America First Legal for use in its private lawsuits.

An amicus brief filed by the committee misrepresented facts and omitted evidence in ways that may have violated the Federal Rules of Civil Procedure, Representative Jerrold Nadler of New York wrote in a 46-page letter to Mr. Jordan.

A committee spokeswoman said the letter “deliberately misrepresents the evidence available to the committee to defend the Biden administration’s attacks on the First Amendment.”

The amicus brief, filed to the U.S. Court of Appeals for the Fifth Circuit, was drafted by a lawyer at Mr. Miller’s legal foundation.

Mr. Miller did not respond to requests for comment.

A chilling effect

By the summer of 2023, the legal and political effort was having an impact.

The organizations involved in the Election Integrity Partnership faced an avalanche of requests and, if they balked, subpoenas for any emails, text messages or other information involving the government or social media companies dating to 2015.

Complying consumed time and money. The threat of legal action dried up funding from donors — which had included philanthropies, corporations and the government — and struck fear in researchers worried about facing legal action and political threats online for the work.

“You had a lot of organizations doing this research,” a senior analyst at one of them said, speaking on the condition of anonymity because of fear of legal retribution. “Now, there are none.”

The Biden administration also found its hands tied. On July 4, 2023, Judge Doughty issued a sweeping injunction, saying that the government could not reach out to the platforms, or work with outside groups monitoring social media content, to address misinformation, except in a narrow set of circumstances.

The ruling went further than some of the plaintiffs in the Missouri case had expected. Judge Doughty even repeated an incorrect statistic first promoted by Mr. Benz: The partnership had flagged 22 million messages on Twitter alone, he wrote. In fact, it had flagged fewer than 5,000.

The Biden administration appealed.

While the judge said the administration could still take steps to stop foreign election interference or posts that mislead about voting requirements, it was unclear how it could without communicating “with social media companies on initiatives to prevent grave harm to the American people and our democratic processes,” the government asserted in its appeal.

In September, the U.S. Court of Appeals for the Fifth Circuit scaled the order back significantly, but still found the government had most likely overstepped the limits of the First Amendment. That sent the case to the Supreme Court, where justices recently expressed deep reservations about government intrusions in social media.

Ahead of the court’s decision, agencies across the government have virtually stopped communicating with social media companies, fearing the legal and political fallout as the presidential election approaches, according to several government officials who described the retreat on the condition of anonymity.

In a statement, Cait Conley, a senior adviser at the Cybersecurity and Infrastructure Security Agency, said the department was still strengthening partnerships to fight “risks posed by foreign actors.” She did not address online threats at home.

The platforms have also backed off. Facebook and YouTube announced that they would reverse their restrictions on content claiming that the 2020 election was stolen. The torrent of disinformation that the previous efforts had slowed, though not stopped, has resumed with even greater force.

Hailing the end of “that halcyon period of the censorship industry,” Mr. Benz has found new celebrity, sitting for interviews with Tucker Carlson and Russell Brand. His conspiracy theories, like the one about the Pentagon’s use of Taylor Swift, have aired on Fox News and become talking points for many Republicans.

The biggest winner, arguably, has been Mr. Trump, who casts himself as victim and avenger of a vast plot to muzzle his movement.

Mr. Biden is “building the most sophisticated censorship and information control apparatus in the world,” Mr. Trump said in a campaign email last week, “to crush free speech in America.”

Glenn Thrush and Luke Broadwater contributed reporting.

Jim Rutenberg is a writer at large for The Times and The New York Times Magazine and writes most often about media and politics. More about Jim Rutenberg

Steven Lee Myers covers misinformation for The Times. He has worked in Washington, Moscow, Baghdad and Beijing, where he contributed to the articles that won the Pulitzer Prize for public service in 2021. He is also the author of “The New Tsar: The Rise and Reign of Vladimir Putin.” More about Steven Lee Myers

Our Coverage of the 2024 Elections

Presidential Race

Donald Trump and Republicans are trying to keep voters’ attention on the border as President Biden and Democrats grow more optimistic about their ability to center the campaign on abortion after a pair of court rulings out of Florida.

Trump called for Israel to “finish up” its war in Gaza , urging an end to the conflict with no insistence on freeing Israeli hostages first, alarming conservatives.

Trump, who ends many of his rallies with a churchlike ritual, has infused his movement with Christianity .

Other Key Races

Tammy Murphy, New Jersey’s first lady, abruptly ended her bid for U.S. Senate, a campaign flop that reflected intense national frustration with politics as usual .

Kari Lake, a Trump acolyte running for Senate in Arizona, is struggling to walk away from the controversial positions  that have turned off independents and alienated establishment Republicans.

Ohio will almost certainly go for Trump this November. Senator Sherrod Brown, the last Democrat holding statewide office, will need to defy the gravity of the presidential contest  to win a fourth term.

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Supreme Court to decide if White House went too far fighting social media misinformation

The case grew out of concern from conservatives that their views were being suppressed about 2020 election fraud, covid-19 origins and treatments and other issues..

WASHINGTON − After Robert F. Kennedy Jr. suggested without evidence that baseball legend Hank Aaron’s death in 2021 was caused by a COVID-19 vaccine, the Biden administration pounced.

“Wanted to flag the below tweet and am wondering if we can get moving on the process for having it removed ASAP,” the digital director for the White House’s COVID response team wrote in an email to an official at Twitter.

What the White House viewed as an effort to correct misinformation about a life-saving vaccine during a pandemic, critics called an example of a broad pressure campaign by the federal government to quash views it doesn’t like.

Now the Supreme Court is being asked what boundaries to set .

If the justices place too many restrictions on how the government can work with private social media companies in areas such as public health, election integrity and foreign interference, it could impede efforts to stop harmful misinformation, experts say.

Prep for the polls: See who is running for president and compare where they stand on key issues in our Voter Guide

But if there aren’t enough guardrails, the government – whether a Democratic or Republican administration – could have too much power to influence debate in a public square dominated by social media.

“I think we need to figure out how to draw these lines more carefully in ways that protect legitimate speech from government suppression,” said Brendan Nyhan, a political scientist at Dartmouth College who studies misperceptions about politics and health care. “But I'm concerned people are using that idea to try to shut down any kind of government information exchange with social media platforms, which I think could be harmful.”

Could the Supreme Court `destroy the internet'?

The Supreme Court takes up the issue Monday, three weeks after it heard challenges to laws passed by Florida and Texas to limit the ability of social media giants to regulate user content.

“This is the second major case in the last month in which the Supreme Court could destroy the internet, if it's not careful,” said James Grimmelmann, a professor of digital and information law at Cornell University. “They're unlikely to do that. But it's still a case in which they have to be very precise about what they say.”

Both cases grew out of concern from conservatives that their views were being suppressed about claims of 2020 election fraud, the origin of and treatments for COVID-19 and other issues, complaints that congressional Republicans have amplified with multiple hearings.

The GOP-controlled House last year passed legislation to prohibit federal employees from “advocating for censorship of viewpoints.” The bill , which has not advanced in the Democrat-controlled Senate, was a response to Twitter briefly blocking links to a  New York Post story  about  Hunter Biden’s laptop in 2020.

Former Twitter executives denied last year that they were pressured by Democrats and law enforcement to suppress the story.  Yoel Roth, Twitter's former head of trust and safety, who regularly communicated with the FBI about election security issues, testified at a congressional hearing that the agency was always careful “not to cross the line into advocating for Twitter to take any particular action.”

Lower courts sided with challengers

In the case before the Supreme Court Monday, Surgeon General Vivek Murthy and numerous other federal officials are being sued by the Republican attorney generals in Missouri and Louisiana and by five social media users who said their posts or accounts were removed or downgraded.

Kennedy, who is running for president as an independent and contends in a filing “there may be no more individual in the country more heavily targeted for social media censorship by the federal government,” has a separate suit still working its way through the court system.

One of the challengers being represented on Monday, Jill Hines, co-director of the conservative Health Freedom Louisiana group, said the warnings she received from Facebook included one for sharing a screenshot of a Kennedy tweet and one for her post of a Daily Mail story headlined, “Face masks may raise risk of stillbirths, testicular dysfunction and cognitive decline due to build-up of carbon dioxide, study warns.”

The study referenced included no evidence that masks cause serious health problems, according to PolitiFact , a nonpartisan factchecking site.

A district court in Louisiana sided with Hines and other challengers, imposing sweeping restrictions on the government’s interaction with social media platforms.

The New Orleans-based U.S. Court of Appeals for the 5th Circuit narrowed the restraints but the Justice Department said they would still place unprecedented limits on how government officials can speak about matters of public concern, address national security threats or relay public health information.

The restrictions are on hold while the Supreme Court reviews the case.

Three justices have already criticized `government censorship'

Three of the court’s six conservative justices –Samuel Alito, Clarence Thomas and Neil Gorsuch – wanted to reject the federal government’s appeal.

"Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing," Alito wrote when the court agreed to take the case.

The Justice Department argues public officials’ interaction with social media platforms was not coercive, nor did it involve “significant encouragement.” Government agencies “largely provided the platforms with information, leaving it up to the platforms to decide what action to take, if any,” the government’s lawyers wrote in a filing .

More: Mask mandates? Supreme Court rejects appeal from Marjorie Taylor Greene, GOP lawmakers

Lawyers for some of the challengers say that unless what’s being shared is illegal – such as child pornography – the First Amendment doesn’t allow the government to mediate “between true speech and false speech.”

“It's not the government's role, and never has been the government's role, to be the truth police,” said Mark Chenoweth, president and chief legal officer of the New Civil Liberties Alliance. The group represents the infectious disease experts who co-authored the Great Barrington Declaration, which advocated lifting COVID-19 restrictions on lower-risk groups to promote "herd immunity."

Persuasion or coercion?

The Knight First Amendment Institute at Columbia University said the Supreme Court needs to clarify the line between permissible persuasion and impermissible coercion – and must emphasize that applying that standard should include a full examination of the facts and context.

In Monday's case, for example, President Joe Biden’s public statement that social media companies were “killing people” by not sufficiently combatting misinformation about vaccines may have exerted public pressure but did not carry a retaliatory threat even if the word choice was provocative, according to the institute , which reviewed some of the charges.

The challengers’ objection to an internal email sent from a Biden COVID adviser to a Facebook official is trickier. Complaining that “100% of the questions I asked have never been answered and weeks have gone by,” the official wrote: “Internally we have been considering our options on what to do about it.”

The email sounded accusatory and demanding and could be read as an implicit threat of regulatory retaliation, according to the institute.

However the Supreme Court comes down in this case − and in its pending ruling on the Texas and Florida social media laws – the ramifications could be far-reaching.

Olivier Sylvain, an expert on communications law at Fordham University and a research fellow at the Knight First Amendment Institute, called it a “special, maybe even once in a generation, opportunity to define how far governments may go to protect against the online distribution of lawful and unlawful harmful content.” 

Contributing: Bart Jansen, Jessica Guynn, John Kennedy of USA TODAY.

More: Supreme Court sounds skeptical of Texas and Florida laws to regulate social media

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Fox Used to Hate Disinformation Experts. Now It’s Hiring One.

Fox Corporation is hiring a counter-disinformation specialist as Fox News continues to denounce efforts to fight disinformation.

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Fox News, one of the most relentless critics of the war on disinformation, now has a new challenge: Its parent company is looking to build up its own internal capability to combat disinformation. 

Last week, Fox Corporation issued a job posting looking for a corporate “trust and safety behavioral analyst” whose responsibilities would include identifying “misinformation/disinformation.” The job aims to establish a content moderation system across Fox’s businesses, which includes Fox News, to fight disinformation. The corporation will work in close coordination with unnamed partners both inside and outside of the company, the posting says. To this end, Fox intends to use pattern recognition, a key component of artificial intelligence, to “identify hostile users,” the job description says.

The analyst, Fox says, would tend to the “ongoing community health and brand safety of Fox sites and apps that interact directly with users” in order to “safeguard … user communities.” A background in “psychology, criminal justice, social media, gaming, news or media” is a plus, the job announcement says.

Asked about the job posting, Fox did not respond to a request for comment.

The corporate concern with disinformation contrasts rather sharply with Fox News’s overwhelmingly critical coverage of anti-disinformation efforts that police what is posted in social media, which Fox News consistently equates with censorship. 

When the Department of Homeland Security created a now-defunct Disinformation Governance Board in 2022, prominent Fox News hosts condemned the move in sensational terms. Fox News host Sean Hannity and then-host Tucker Carlson both called the Disinformation Governance Board a “Ministry of Truth,” a reference to the propaganda ministry of a totalitarian state from George Orwell’s dystopian novel “1984.” Fox News’s Brian Kilmeade echoed their remarks, saying that “it looks like the Biden administration is taking Orwell’s work not as a warning but as their own manual.” 

Why Fox News Can’t Afford to Quit Donald Trump

Since the board story, the network has been obsessed with the disinformation battle. In the week following the revelation of the Disinformation Governance Board, 70 percent of Fox’s one-hour segments referenced disinformation and the DHS official in charge of the board, according to a defamation lawsuit Nina Jankowicz has filed against Fox News. During 2022, Fox News mentioned Jankowicz over 300 times, the lawsuit states. (Asked about the lawsuit, Irena Briganti, a spokesperson for Fox News, said that the company has filed a motion to dismiss the lawsuit.)

Fox’s corporate interest in disinformation differs from the federal government’s. Fox is interested in audience “engagement” — a term that appears almost half a dozen times in the job posting.

“Helping deliver innovative technology solutions to support user safety and increase engagement,” Fox’s posting lists among the responsibilities of the job. 

Much of the debate about content moderation focuses on heady subjects like freedom of speech and the threat of state-sponsored foreign influence campaigns. But largely absent from the discussion is the simple fact that it’s profitable for companies to remove content that might offend advertisers or audiences. And with advancements in AI technology, it is increasingly possible to do so at scale.

In addition to machine learning, Fox’s job posting references two other terms common to AI: large language models and natural language processing. This technology makes it possible to autonomously sift through vast amounts of data, which previously would have required expensive human teams. As a result, content moderation is going to be cheaper to conduct than ever before.

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Fox is far from the only company taking advantage of the breakthroughs in AI to respond to disinformation. 

“More than 95 percent of the hate speech that we take down is done by an AI and not by a person,” Mark Zuckerberg, CEO of Facebook (now Meta) told Congress in 2021. “And I think it’s 98 or 99 percent of the terrorist content that we take down is identified by an AI and not a person.”

The federal government is increasingly turning to AI to identify foreign influence operations, according to the Biden administration’s new budget request delivered to the Congress last month.

For the most part, the rapid changes brought about by the explosion of AI technology have yet to enter into the disinformation debate.

“I am pro-disinformation because one man’s disinformation is another person’s fact,” Fox News host Greg Gutfeld said in 2022.

Gutfeld may want to take that up with his employer.

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