An offensive tweet or remark in the office could cost you your job or land you in civil court. Is governmental censorship ever warranted? Should governments criminalize speech or clothing to promote religious or racial tolerance? Is it OK in the workplace?
And when does censorship cross the line into repression? Jantzen Gregory. Subscribe to our Podcasts. Sign up for our Newsletter. 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 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.
In in Schenck , the government charged that encouraging draftees not to report for duty in World War I constituted sedition. In the s and s, 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 and the Internal Security Act of , 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.
As a means of fighting terrorism, government agencies began to target people openly critical of the government. 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. 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 , the Court upheld the right of middle and high school students to wear black armbands to school to protest U.
One of the most controversial examples of symbolic speech has produced a series of flag desecration cases, including Spence v. Washington , Texas v. Johnson , and United States v. Eichman 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 majority in Texas v. Johnson, Justice William J. Brennan Jr.
Paul , 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 , holding that the First Amendment did not protect such acts when their purpose was intimidation. This article was originally published in Elizabeth Purdy, Ph. Hemmer, Joseph J. Lanham, Md. Irons, Peter H. Brennan vs. Rehnquist: The Battle for the Constitution. New York: Alfred A. Knopf, Kennedy, Sheila Seuss. Westport, Conn.
Kersch, Ken I. On the one hand, our history is filled with examples of overt government censorship, from the Comstock Law to the 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. 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. 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.
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 case called Miller v. California, has three requirements.
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