15.4 Censorship and Freedom of Speech
Censorship and freedom of speech are foundational concepts in understanding the modern media landscape. Censorship, at its core, involves the suppression or removal of content deemed objectionable by an authority, which can range from minor edits like bleeping a word on a broadcast to more significant actions like banning books from libraries or restricting political or religious expression. Historical examples of censorship are abundant, from the burning of books in ancient Alexandria to the pervasive state censorship under totalitarian regimes in the 20th century. Even in democratic societies, debates persist over what constitutes acceptable content, as seen in ongoing discussions about content moderation on social media platforms or the removal of certain materials from school curricula.
In the United States, the First Amendment to the Constitution serves as a cornerstone of freedom of speech and press, declaring that “Congress shall make no law… abridging the freedom of speech, or of the press.” This protection extends beyond mere verbal communication to encompass a broad spectrum of expression, including nonverbal, visual, and symbolic forms. Historically, this has been interpreted and reinterpreted through landmark Supreme Court cases. For instance, Schenck v. United States established the “clear and present danger” test, limiting speech that could incite illegal acts. At the same time, Tinker v. Des Moines Independent Community School District affirmed students’ right to symbolic speech in schools. More recently, cases like Citizens United v. Federal Election Commission have explored the intersection of money and free speech in political campaigns, sparking considerable debate.
From Disruption to Discipline: The Evolving Lines of Student Expression
The scope of student rights, particularly regarding freedom of expression within and outside school grounds, has been significantly shaped by landmark Supreme Court cases, establishing important precedents for what administrators can and cannot censor. This legal journey began by affirming student free speech, then gradually introduced limitations based on context and content.
The foundational ruling on student speech occurred in 1969 with Tinker v. Des Moines. In this pivotal case, a group of public school students, including Mary Beth Tinker, wore black armbands to school to protest the Vietnam War. Despite the passive nature of their protest, the school suspended them. The Supreme Court famously sided with the students, declaring that they do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court established that student speech could only be restricted if it “substantially disrupts” the educational environment or invades the rights of others. This ruling set a high bar for censorship, protecting symbolic speech and affirming students’ rights as constitutional citizens.
However, subsequent rulings began to carve out exceptions and limitations to the broad protection established by Tinker. One such pivotal case is 1988’s Hazelwood v. Kuhlmeier. This case involved a high school newspaper, The Spectrum, where the principal removed articles about student pregnancy and the impact of divorce on students, deeming them inappropriate. The Supreme Court ruled in favor of the school administration, concluding that the school newspaper was a “supervised learning experience” or a “classroom exercise,” rather than a public forum for unrestricted free speech. Consequently, the Court held that administrators could censor any content “reasonably related to legitimate pedagogical concerns.” This broad interpretation grants school officials significant leeway to restrict student expression in school-sponsored activities like newspapers, yearbooks, and dramatic productions, if they believe the content is inconsistent with the school’s educational mission, might be inappropriate for the age of the audience, or could disrupt the learning environment, notably curtailing the free speech rights students had gained under Tinker.
Another significant case addressing student speech, particularly off-campus but with school implications, is Morse v. Frederick. This 2007 case involved Joseph Frederick, a high school student who, along with friends, unfurled a banner reading “BONG HiTS 4 JESUS” across the street from Juneau-Douglas High School during an Olympic Torch Relay. Although the event was off school grounds, school principal Deborah Morse suspended Frederick for 10 days, arguing the banner promoted illegal drug use. The Supreme Court upheld the principal’s decision, stating that school officials could punish speech that could “reasonably be viewed” as promoting illicit drugs. This ruling created an exception to the broader Tinker precedent, allowing schools more authority to regulate speech that undermines their anti-drug mission, even if it occurs slightly off-campus during a school-sanctioned event. Interestingly, Frederick received support in court from a diverse coalition including the American Civil Liberties Union (ACLU), gay rights groups, and the Christian Legal Society, highlighting the broad implications for free speech.
More contemporary issues surrounding student expression often involve social media. While specific Supreme Court cases on student social media posts are still evolving, the principles from Hazelwood and Morse are frequently applied, usually leading to complex legal battles. An illustrative example, though not a Supreme Court case, deals with student Kimberly Diei’s social media posts. Diei, a pharmacy student at the University of Wyoming, faced disciplinary action from the school’s College of Pharmacy for posts on her personal social media accounts that referenced alcohol and expressed frustration about faculty. While the content was not explicitly drug-related or directly disruptive of classroom activities, the university argued it violated professional conduct standards for aspiring pharmacists. The University of Tennessee threatened to expel her over the posts. She sued on First Amendment grounds and received a $250,000 settlement. This case, and others like it, highlight the ongoing challenge of defining the boundaries of school authority over student speech that occurs off-campus but might be perceived as reflecting on the student’s professional suitability or the institution’s reputation.
Organizations like the Student Press Law Center (SPLC) actively monitor and litigate such cases, providing legal assistance and advocating for student free speech rights against administrative overreach, especially in the context of student journalism and online expression. These evolving legal interpretations continue to shape the boundaries of student expression in an increasingly digital world.
Classifying Material as Indecent, Obscene, or Profane
The legal definition of obscenity has long been a complex and contentious area in American law, particularly concerning free speech protections. Its elusive nature was famously encapsulated by Supreme Court Justice Potter Stewart, who, in a 1964 concurring opinion, stated, “I’ll know it when I see it,” highlighting the inherent difficulty in providing a precise, universally applicable definition. This challenge stems from the subjective and evolving nature of what society deems offensive or inappropriate.
One of the first significant attempts by the Supreme Court to define obscenity came in the 1957 case Roth v. United States. This case established an initial three-part test for determining whether material could be legally deemed obscene and therefore stripped of First Amendment protection. To be considered obscene under the Roth test, the material had to meet all three criteria:
- Whether to the average person, meaning not just a highly sensitive or unusually broad-minded individual.
- Applying contemporary community standards, acknowledging that what is considered offensive can vary geographically and over time, thus placing the determination within the context of local norms rather than a national standard.
- The dominant theme of the material taken as a whole appeals to prurient (obsessively sexual) interest. This meant the material’s primary appeal had to be to a shameful or morbid interest in sex, rather than a healthy or artistic one.
While Roth provided a framework, it still left considerable ambiguity. The definition of obscenity was further refined by the Supreme Court in Miller v. California, which is now the prevailing legal standard. The Miller test built mainly upon the Roth criteria but added crucial elements, providing greater clarity and allowing for more state-level discretion. The Miller test for obscenity requires that:
- The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
- The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. This part addresses concerns about overly vague laws by requiring states to be explicit about what sexual conduct is prohibited.
- The work, taken as a whole, lacks serious literary, artistic, political, or scientific value (SLAPS test). This final criterion is paramount, as it ensures that material possessing genuine societal value, even if sexually explicit, cannot be banned as obscene. For instance, this “SLAPS” test protects material such as sexual health information, classic erotic literature (like Ulysses or Lady Chatterley’s Lover, which were once banned), or scientific diagrams of human anatomy, even if they depict nudity or sexual themes.
The Miller decision affirmed that states could ban specific types of content, with child pornography being the most unequivocal example of material that receives absolutely no First Amendment protection and is universally prohibited. This particular category is distinguished from other forms of obscenity due to the inherent exploitation and harm to minors involved in its creation. The ongoing application of the Miller test continues to shape legal battles over censorship, content moderation on online platforms, and the boundaries of free expression in contemporary society, constantly adapting to new forms of media and public standards.
The Federal Communications Commission (FCC) plays a significant role in regulating broadcast media in the U.S., particularly concerning indecency and profanity. While obscene material receives no First Amendment protection and can be subject to criminal prosecution, indecent and profane material receives some protection but is subject to restrictions on when it can be broadcast. Indecent material typically depicts sexual or excretory organs or activities in a patently offensive way, while profanity includes grossly offensive language. The FCC prohibits the broadcast of obscene and profane material during hours when children are likely to be in the audience, generally between 6 a.m. and 10 p.m., a period referred to as the “safe harbor (Federal Communications Commission).” This policy is intended to protect children from potentially harmful content while still allowing for the broadcast of such material during adult viewing hours.
What You Can’t Say on Television: The Seven Words That Shaped Broadcast Law
The groundbreaking Supreme Court case Federal Communications Commission v. Pacifica Foundation (1978) stands as a pivotal moment in the history of broadcast regulation in the United States, and at its heart was the provocative comedy of George Carlin. Carlin, a master satirist and linguistic provocateur, became an accidental figurehead in the ongoing debate over free speech, particularly concerning “indecent” content on public airwaves.
The case originated from a complaint filed with the FCC in 1973. A father, driving with his young son in the car at approximately 2:00 PM on a Tuesday, heard a broadcast on Pacifica Foundation’s New York radio station WBAI. The program, titled “Filthy Words,” was a 12-minute monologue by George Carlin. In this routine, which was a follow-up to his famous “Seven Words You Can Never Say on Television” bit, Carlin humorously yet explicitly enumerated and dissected words like “shit,” “piss,” “fuck,” “cunt,” “cocksucker,” “motherfucker,” and “tits,” exploring their absurdity and the societal taboos surrounding them. The father, offended by the language, complained to the FCC.
The FCC responded by issuing a declaratory order, which, while not imposing a fine, placed a letter in Pacifica’s license file, noting that the broadcast was “indecent” and could have led to administrative sanctions. The FCC argued that the language was “patently offensive” and was aired at a time when children were likely to be in the audience. Pacifica Foundation challenged this order, arguing it amounted to censorship and violated their First Amendment rights. The case ascended through the courts, eventually reaching the Supreme Court.
In a landmark 5-4 decision, the Supreme Court ruled in favor of the FCC. Writing for the majority, Justice John Paul Stevens distinguished between “obscenity,” which receives no First Amendment protection, and “indecency,” which does receive some protection but can be regulated in specific contexts. The Court acknowledged the unique characteristics of broadcast media, noting its “uniquely pervasive presence in the lives of all Americans” and its “unique accessibility to children.” These factors, the majority reasoned, justified “special treatment” for indecent broadcasting, allowing the FCC to “channel” such content to times when children were less likely to be listening – establishing what would become known as the “safe harbor” period (generally 10 p.m. to 6 a.m.).
The impact of FCC v. Pacifica Foundation was profound. It affirmed the FCC’s authority to regulate indecent content on broadcast radio and television, solidifying the distinction between “indecent” and “obscene” speech in broadcast law. While the ruling was narrow, explicitly addressing the Carlin monologue in the context of daytime broadcasting, it laid the groundwork for future FCC enforcement actions against what it deemed “patently offensive” language or depictions of sexual and excretory functions. Justice William Brennan, in a fervent dissent, argued that the decision “misapplied fundamental First Amendment principles” and represented a misguided attempt to impose societal notions of propriety, warning of a potential chilling effect on legitimate speech.
Despite the criticisms, the Pacifica decision remains a cornerstone of broadcast indecency law. It has been cited in subsequent challenges to FCC regulations. However, later cases, particularly concerning “fleeting expletives” in the digital age, have seen courts express skepticism about the FCC’s ability to regulate brief, accidental utterances. George Carlin, ironically, found a particular “perverse pride” in his footnote in American legal history, as his comedic exploration of taboo words inadvertently cemented a legal framework that continues to shape the boundaries of permissible speech on the public airwaves.
The process by which the FCC addresses complaints about broadcast content is reactive, mainly relying on public complaints. When a complaint is filed, the FCC reviews the content and, if warranted, may initiate an investigation. If a broadcast is found to be indecent or profane, the FCC can issue fines to the licensee, known as a Notice of Apparent Liability for Forfeiture (NAL) (Federal Communications Commission). Historical examples of FCC enforcement actions include fines against broadcasters for fleeting expletives or sexually suggestive content, such as the widely publicized incident involving the Super Bowl XXXVIII halftime show in 2004. These actions often lead to public debate about the balance between protecting children and upholding free speech principles. If the material is deemed obscene, the FCC refers the matter to the U.S. Department of Justice for potential criminal prosecution, which can result in significant penalties.
In the contemporary media environment, the rise of the internet and social media platforms has introduced new complexities to discussions of censorship and freedom of speech. While the First Amendment primarily restricts government censorship, private platforms have their terms of service and content moderation policies. This has led to intense debates about what content is permissible, the role of platforms in regulating speech, and the potential for these platforms to act as de facto censors. Issues such as misinformation, hate speech, and the deplatforming of specific individuals or groups have brought these questions to the forefront. Unlike traditional broadcasters, social media companies are not subject to the same FCC regulations regarding indecency, and their content moderation decisions are often driven by a combination of community guidelines, user reports, and evolving societal norms, alongside legal considerations. For example, major social media platforms, including Twitter (now X) and Facebook, temporarily or permanently suspended Donald Trump’s accounts following the January 6th insurrection, citing concerns about incitement to violence and violations of their terms of service. These actions sparked widespread debate regarding the power of private companies to regulate public discourse and the implications for freedom of speech online. This evolving landscape highlights the ongoing challenge of applying established principles of censorship and freedom of speech to new and rapidly changing technological platforms.
Violence and Sex: Taboos in Entertainment
When considering the historical evolution of entertainment, it’s evident that discussions surrounding violence and sex are far from new. Even in the nascent stages of cinema, filmmakers explored themes that challenged societal norms. Edwin S. Porter’s 1903 silent film The Great Train Robbery, for instance, captivated audiences with its depiction of frontier violence, culminating in the iconic shot of a gunman firing directly at the camera. This early cinematic foray into violent imagery demonstrated an immediate fascination that would persist and evolve. Similarly, D. W. Griffith’s epic films like The Birth of a Nation and Intolerance contained overtly graphic portrayals of violence, which Griffith argued were necessary to convey the actual consequences of human actions (Film Reference). These examples highlight that the presence of challenging content in visual media predates the modern era and has always been a point of cultural discussion.
Hays Code
However, as the influence of Hollywood grew, so too did public and political concern over the moral implications of its content. This unease culminated in the implementation of the Motion Picture Production Code of 1930, famously known as the Hays Code, after Will H. Hays, the chairman of the industry’s self-regulatory body, the Motion Picture Producers and Distributors Association (MPPDA), established in 1922. The Hays Code was an attempt at industry self-censorship, primarily driven by the desire to preempt direct governmental intervention. The code displayed the motion picture industry’s commitment to the public, stating:
Motion picture producers recognize the high trust and confidence that have been placed in them by people worldwide, which has 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 field of entertainment may be directly responsible for spiritual or moral progress, for higher types of social life, and much correct thinking (Arts Reformation).
The code imposed stringent rules on depictions of violence, prohibiting graphic portrayals of crimes such as murder, theft, and acts of destruction like “dynamiting of trains, mines, buildings, etc.” (Arts Reformation). Similarly, it strictly regulated sexual content, demanding that “the sanctity of the institution of marriage and the home shall be upheld” and forbidding any implication that “low forms of sex relationship are the accepted or common thing (Arts Reformation).”
The influence of this code extended beyond film, impacting early television productions where, for example, married couples were often shown in separate twin beds to avoid any suggestion of intimacy. The rigidity of the Hays Code gradually relaxed through the late 1940s. By the 1950s and 1960s, evolving social standards led to a slow reintroduction of more explicit themes of violence and sexuality into mass media.
Ratings Systems
The eventual decline of the Hays Code prompted the film industry to seek a new method of self-regulation, leading to the creation of the modern film rating system. In 1968, the Motion Picture Association of America (MPAA, now the Motion Picture Association or MPA), the successor to the MPPDA, introduced a voluntary ratings system designed to inform audiences about a film’s content.
Film Ratings
This system initially comprised 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 faced its first significant evolution in 1984, partly in response to public outcry over the relatively intense violence in PG-rated films such as Indiana Jones and the Temple of Doom and Gremlins. This led to the creation of the PG-13 rating, indicating that “parents may find some material inappropriate for children under 13,” a category designed to bridge the gap between PG and R.
Another significant adjustment occurred in 1990 with the introduction of the NC-17 rating. This new designation carried the same “no children under 17” restriction as the original X. Still, it was explicitly intended to distinguish serious, non-pornographic adult films from explicit adult entertainment, which had by then essentially co-opted the “X” designation. Despite its intent, the NC-17 rating has often proven to be a commercial impediment, as many theaters and video distributors remain hesitant to carry such films. However, the rise of streaming services has altered this dynamic, allowing more direct access to unrated or NC-17 content.
From Art House to Adult Film: The X Rating’s Transformation
The curious case of the “X” rating stands as a fascinating, albeit unintended, consequence of cinematic classification. Initially conceived by the Motion Picture Association of America (MPAA, now the Motion Picture Association or MPA) in 1968, the X rating was not designed with pornography in mind. Instead, it was introduced as part of a new voluntary film rating system – G, M (later GP, then PG), R, and X – intended to provide parents with guidance on the suitability of films for their children. The X was meant to denote films strictly for adults, signifying content that was too mature for anyone under 17, regardless of parental accompaniment. Crucially, the MPAA did not trademark the “X” rating, nor did it define specific criteria for its application beyond “adults only.” This seemingly minor oversight created a vacuum that the burgeoning adult film industry was quick to fill.
In its nascent years, the X rating was indeed applied to mainstream films that pushed boundaries but were not pornography. Acclaimed and critically successful movies like Midnight Cowboy (1969), which went on to win the Academy Award for Best Picture, initially received an X rating due to its themes and some explicit content. Other notable non-pornographic films that bore the X included A Clockwork Orange (1971), Last Tango in Paris (1972), and Deep Throat (1972). It was the latter, however, that began to irrevocably alter the public perception of the X. Deep Throat, a groundbreaking and commercially successful adult film, proudly marketed itself with its X rating, capitalizing on the “adults only” designation. This marked a turning point.
The lack of an MPAA-enforced definition for the X rating meant that any filmmaker could self-apply it. As mainstream studios increasingly shied away from the X to avoid association with the burgeoning adult film genre, independent filmmakers and, most significantly, the adult entertainment industry began to adopt it exclusively. For pornographers, the X became a convenient and instantly recognizable label that communicated the nature of their product without requiring explicit descriptions. It served as a clear signal to consumers seeking adult content, effectively turning a cautionary rating into a marketing tool. The industry’s widespread and consistent use of the “X” solidified its new meaning in the public consciousness.
By the mid-1970s, the association between the X rating and hardcore pornography was so strong that mainstream films receiving an X rating faced significant commercial challenges. Distributors and exhibitors were reluctant to show them, fearing backlash or being confused with adult cinemas. To avoid this stigma, films like A Clockwork Orange were re-edited to secure an R rating, even if it meant sacrificing artistic integrity. The MPAA, recognizing this unintended consequence and the damage to the X rating’s original purpose, eventually introduced the NC-17 rating in 1990. This new rating, also signifying “no children under 17 admitted,” was an attempt to reclaim a category for serious, non-pornographic adult cinema, effectively creating a “new X” that studios would feel comfortable marketing.
However, by that point, the “X” had been thoroughly co-opted. The adult entertainment industry had embraced it so entirely that it developed its tiered system, with terms like “XX,” “XXX,” or even higher numbers appearing in film titles and marketing to denote increasing levels of explicit content, further solidifying the original X’s connection to pornography. The public, too, had come to understand “X-rated” as synonymous with adult films. Thus, what began as a well-intentioned guide for parental discretion ultimately became an iconic, albeit unintended, symbol for the very industry it was initially meant to distinguish itself from. The porn industry, through consistent usage and strategic self-application, effectively “took over” the X rating, transforming its meaning in popular culture forever.
Television and Video Game Ratings
The success and perceived utility of film ratings led to similar systems being adopted across other forms of media. In the 1990s, the television industry introduced its voluntary rating system, displayed on-screen at the beginning of programs. These ratings 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).
|
Rating |
Meaning |
Examples of Programs |
|---|---|---|
|
Unrated |
New programming protected by the First Amendment |
CNN Newsroom, NBC Nightly News, CBS Evening News |
|
TV-Y |
Appropriate for all children |
Cocomelon, Bluey, Sesame Street |
|
TV-Y7 |
Designed for children ages seven and up |
SpongeBob SquarePants, Paw Patrol, Teen Titans Go! |
|
TV-Y7-FV |
Directed toward older children; includes depictions of fantasy violence |
Pokémon Horizons: The Series, Miraculous: Tales of Ladybug & Cat Noir, Avatar: The Last Airbender |
|
TV-G |
Suitable for general audiences; contains little or no violence, no strong language, and little or no sexual material |
America’s Funniest Home Videos, Diners, Drive-Ins and Dives, The Great British Baking Show |
|
TV-PG |
Parental guidance suggested |
Abbott Elementary, Young Sheldon, The Good Doctor |
|
TV-14 |
Parents strongly cautioned; contains suggestive dialogue, strong language, and sexual or violent content. |
Grey’s Anatomy, The Flash, Outer Banks |
|
TV-MA |
Mature audiences only |
The Last of Us, Squid Game, The Bear |
|
Rating |
Meaning |
Examples of Games |
|---|---|---|
|
EC |
Designed for early childhood, children ages three and older |
Peppa Pig: World Adventures, PAW Patrol Mighty Pups Save Adventure Bay, Bluey: The Videogame |
|
E |
Suitable for everyone over the age of 6; contains minimal fantasy violence and. mild language. |
Minecraft, Animal Crossing: New Horizons, Rocket League |
|
E 10+ |
Appropriate for ages 10 and older; may contain more violence and/or slightly suggestive themes. |
Super Mario Bros. Wonder, Lego Star Wars: The Skywalker Saga, Splatoon 3 |
|
T |
Content is appropriate for teens (ages 13 and older); may contain violence, crude humor, sexually suggestive themes, use of strong language, and/or simulated gambling. |
Marvel’s Spider-Man 2, Hogwarts Legacy, Valorant |
|
M |
Mature content for ages 17 and older; includes intense violence and/or sexual content. |
Baldur’s Gate 3, Cyberpunk 2077, Helldivers 2 |
|
AO |
Adults (18+) only; contains graphic sexual content and/or profanity or prolonged violence (rare rating) |
Grand Theft Auto: San Andreas (original Hot Coffee mod version), Manhunt 2 |
