Thomas Jefferson's death in 1826 marked a new era in the South as the ideals of the 18th century Enlightenment were discarded in favor of a pragmatic repression designed to hold on to slavery.

Following the1822 Denmark Vessey and 1831 Nat Turner rebellions in South Carolina and Virginia, new laws forbid possession or distribution of abollitionist literature. In Virginia, anyone who "by speaking or writing maintains that owners have no right of property in slaves" could be sentenced to a year in prison.

Tensions kept rising despite efforts of some editors to avert Civil War. Elijah Lovejoy, editor of the Alton. Ill. Observer, was killed by a pro-Southern mob in 1837.

As war breaks out, criticism of Lincoln and the war effort is widespread but censorship is rare. Sometimes reporters bore the brunt of a general's wrath. For example, Thomas Knox, a New York Herald reporter, was nearly hung after a notorious court martial by Gen. William Sherman. Knox's life was spared by a timely telegram from President Lincoln.

Another exception involved the burning of newspapers containing articles that condemned peace terms in 1865. (illustration at left)

After the war, Congress passes (and the states ratify) the 14th Amendment to the Constitution, which says in part: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law..."

This amendment would be used in Gitlow v. New York, 1925, to apply the First Amendment to state law, which set a precedent for the bedrock media law case, New York Times v. Sullivan, 1964.

Social attitudes towards free speech have often lagged behind ideals expressed in law.

While the church persecuted very early books and engravings of an obscene nature in ecclesiastical courts, by the time Fanny Hill: Memoirs of a Woman of Pleasure by John Cleland was first publishedt in 1749, British authorities took no notice. Trade in erotic literature grew in the 19th century.

By the 1830s, Booksellers Row in London (Holywell Stree) had over 50 bookstores devoted to pornography. All had displays that attracted attention from the thrill-seekers passing . The stores sold novels, erotic prints, etchings, and catalogues for prostitutes that featured their 'specialities.'

In England, the Society for the Surpression of Vice led to the first of several laws that gave magistrates authority to issue warrants to sieze and destroy obscene materials. Prosecution of "obscene libel" also became common as laws became more explicit in Victorian era.

Queen (Regina) v. Hicklin (1868 L. R. 3 Q. B. 360)- In 1857 the Lord Campbell Act was adopted to set a standard for obscenity in England. This was tested in 1868 when Henry Scott was brought up on charges for printing a pamphlet called "The Confessional Unmasked." It was a piece of crude anti-Catholic propaganda that was part of the social turmoil around the Murphy Riots. Scott appealed to Benjamin Hicklin, a recorder in London, and although Hicklin ruled in Scott's favor, this ruling was later overturned by Alexander Cockburn, Britain's chief justice. Cockburn said:

"The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall."

This came to be known as the Hicklin Rule because the case in question was Regina v. Hicklin. It set an early precedent for obscenity and was cited in American court cases in the 1800s and early 1900s. The rule allowed a publication to be judged for obscenity based on isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers, such as children or weak-minded adults.

In the US, most of the censorship took place on the state level until after the Civil War. State censors tried, unsuccessfully, to ban Memoirs of a Woman of Pleasure in Massachusetts as early as 1821.

Comstock Laws

Freedom of speech and press did not apply to materials considered to be "obscene." The US Tarrif Act of 1842 was the first federal law restricting imports of obscene material. It didn't have much effect, and as the Victorian era dawned in America in the wake of the Civil War, self-styled crusaders set about improving America's moral posture. The most successful of these was crusading moralist Anthony Comstock(1844 - 1915) who lobbied Congress for a "decency" bill.

The "Comstock Act" of 1873 banned any information whatsoever about family planning, abortion, venerial disease, contraceptives and reproductive health. Even a printed discussion of birth control was obscene and therefore not protected by the First Amendment.

Comstock was named a special agent of the Post Office and given free transportation to go wherever he wanted to enforce the law that carried his own name. He bragged later that he was responsible for 15 suicides and for sending enough people to jail to fill a 61 coach passenger train.

"Comstockery is the world's standing joke at the expense of the United States. Europe likes to hear of such things. It confirms the deep-seated conviction of the Old World that America is a provincial place, a second-rate country-town civilization after all." -- George Bernard Shaw

Comstock was not only concerned about publications with dirty pictures. Like other social conservatives of the era, he worried that the women's suffrage movement (to give women the vote) and new ideas about "free love" and even spiritualism were undermining American morality.

Indeed, propaganda against suffrage workers like Victoria Woodhull was fairly typical. At right, we see Woodhull as the devil with her free love doctrine trying to lure a woman with an alcoholic husband and a crying baby down the path away from salvation, not toward it.

Comstock attacked many people, but was especially interested in Margaret Sanger. A nurse who was shocked at the lack of scientific information about reproductive health and birth control, Sanger insisted on the free speech right to discuss birth control.

In 1914, Margaret Sanger published the Woman Rebel, which included frank discussions about contraception, and was indicted for violating the Comstock Acts.

The newspaper was was banned and Sanger was indicted for violating postal obscenity laws. She went into exile in England for several years, and then returned to open clinics and continue her advocacy through a group that eventually became known as Planned Parenthood.

SMOOT PLANS TARIFF BAN ON IMPROPER BOOKS

(by Ogen Nash)

Senator Smoot (Republican, Ut.)
Is planning a ban on smut.
Oh rooti-ti-toot for Smoot of Ut.
And his reverend occiput.
Smite, Smoot, smite for Ut.,
Grit your molars and do your dut.,
Gird up your l__ns,
Smite h_p and th_gh,
We'll all be Kansas
By and by...

** Mutual Film v. Industrial Commission of Ohio, 1915 -- Ohio set up a system of board of censors which, by law, could only approve films that were "of a moral, educational, or amusing and harmless character." The law was upheld and, on appeal, the Supreme Court said that the state has an intereest in public morals and that films "may be used for evil." Noting that audiences were made up of both adults and children, the court said that "a pretense of worthy purpose" might make films "even more insidious in corruption." Freedom of speech does not apply to spectacles and circuses, the court said. It is interesting that the court considered the state constitution's guarantee of free speech here and not the US Constitution's First Amendment. Following this decision, the system of censorship continued on a national level through the Hays Committee and the Motion Picture Association of America through the 1960s, then changed to the current rating system: G, PG, PG-13, R and NC-17.

Naturally, many Americans chafed at the absurdities of Comstockery. As is often the case, high-handed tactics were met with satire. For example, the propaganda about Victoria Woodhull (illustration above left with devil wings) was not necessarily meant to be taken seriously. Nor was Ogden Nash's poem about the Smoot Hawley Tariff Act of 1930, although the case brought by publisher Vincent Cerf of Random House (One Book Entitled Ulysses) certainly was meant to be taken seriously:

One Book Entitled Ulysses v. US, 1933, One of the most frequently censored books of the early 20th century, Ulysses was finally brought to trial in 1933. Judge John Woolsey found the book not obscene, and his decision in the case did not apply the Hicklin Rule, which was the standard at the time. One aspect of the Hicklin Rule stated that in order to determine a workÕs obscenity, its effects on the most susceptible members of society had to be determined. In Ulysses v. US, Woolsey said that instead of the most susceptible members of society, its effects on the average person determine a workÕs obscenity. Furthermore, the Hicklin Rule allowed for a work to be judged by individual passages, which could be easily taken out of context. Woolsey based his judgment on the work as a whole. The case was appealed, but the Appeals Court upheld WoolseyÕs decision, and the Hicklin Rule was abolished in the US on the federal level.

US government's Committee for
Public Information ad, 1917,
urged Americans to beware of strangers
and to turn in anyone overheard speaking German.

"Imagine going down to your local brewpub or coffee shop. You meet some friends. The talk turns to the war. You criticize the President and his wealthy supporters. Next thing you know, a couple of husky fellows at the next table grab you, hustle you out the door and down to the local police station. You are arrested on a charge of sedition. Within months you are indicted, tried and convicted. The judge sentences you to 5-10 years in prison — and off you go!" -- Montana Sedition Project

They were also arrested in some states for displaying the wrong flag (black for anarchism or red for communisim). In 1923, Upton Sinclair, author of "The Jungle," was arrested for trying to read the text of the First Amendment at a union rally. Many people were arrested merely for membership in groups regarded as "radical" by the government as the Charlotte Whitney case (noted next) shows.

The most significant surppression of free speech involved protests against the First World War. Eugene Debs, the Socialist Party chair, was sentenced to prison merely for opposing the war. Others, such as college professor Scott Nearing, lost jobs or were badly harrassed. Nearing's "The Great Madness" typified the era.

The Espionage Act of 1917 and the Sedition Act of 1918 were wartime measures designed to curtail all criticism of the government and the war effort. Unlike the Alien & Sedition Acts of 1798, the World War I era acts were vigorously enforced, with about 2,000 arrests and 1,000 convictions. A number of these cases were appealed to the U.S. Supreme Court.

-- In Schenck v. U.S., 1919, the Supreme Court tested the Espionage Act and held that Socialist Party secretary Charles T. Schenck had violated it by circulating pamphlets to denouncing the draft as involuntary servitude. His conviction was upheld and the Supreme Court used the case to create the "clear and present danger" test of when speech could lawfully be suppressed. Justice Oliver Wendell Holmes used a famous analogy: "Free speech would not protect a man in falsely shouting 'fire' in a theater and causing a panic."

-- In two other related cases, some justices began a line of minority dissent which would later become the opinion of the majority.

** In Abrams v. US, 1919, for instance, Holmes' dissent said that "Congress certainly cannot forbid all effort to change the mind of the country ... nobody can suppose that ... a silly leaflet by an unknown man, would present any immediate danger ..."

** In Whitney v. California, 1927, Justice Louis Brandeis dissented from this trend. He didn't think it was right to uphold a state conviction of a woman who was simply a member of the Communist Party: "Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.... No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. .." Note that in both cases, the effort is to define "clear and present danger" in more concrete terms.

Near v. Minnesota -- an early significant Prior Restraint case

Near v. Minnesota, 1931 -- State's prior restraint law struck down as unconstitutional. This is one of those "bedrock" cases. J.M. Near's Saturday Press had published a number of articles highly critical of gangsterism in Minneapolis. The state banned further publication under a nuisance law.

The Minnesota state supreme court upheld the state ban, saying that the Constitution "was never intended to protect malice, scandal and defamation when untrue or published with bad motives or without justifiable ends... Liberty of the press does not mean that an evil-minded person may publish just anything any more than the constitutional right of assembly authorizes and legalizes unlawful assemblies and riots."

This state decision did not stand. Near challenged the law under the First and Fourteenth Amendments. In overturning the Minnesota court, the US Supreme Court said: "The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with Constitutional privilege."

World War II and the McCarthy Era

World War II and the McCarthy Era

After the Sedition Act expired in 1921, the federal government stopped prosecuting dissent. At the outbreak of World War II, a new sedition law was attached to the Alien Registration Act of 1940. It became known as the Smith Act for its sponsor, Howard Smith.

There were no cases involving the Smith Act during the war, partly because few people opposed the fight against fascism in the U.S. However, after the war, the act was used to prosecute members of the Communist Party in the U.S.

-- In Dennis v. U.S., 1951, for example, the "clear and present danger" test was used again to uphold the convictions of 12 party members under the Smith Act.

-- About 121 others were prosecuted under the Smith Act's conspiracy provisions, and many thousands of others were prosecuted under state laws outlawing mere membership in organizations that advocated violent overthrow of the government. Many of these prosecutions were unsupported by evidence, and the McCarthy Era (named for then- Senator Joseph McCarthy) is remembered today for its "witch hunt" atmosphere. But times were changing.

-- In Yeats v. U.S. (1957), the Supreme Court (which now had several new members, especially the new Chief Justice Earl Warren) made a distinction between the abstract doctrine of overthrow of of the government and actually advocating violent action.

Late 20th Century -- US censorship / prior restraint

Outright prior restraint is usually unconstitutional because it targets particular content, but regulations that are content neutral and that advance an important interest are often considered to be acceptable.

For example, banning any billboards that advertise a certain political party in a city would be an unacceptable prior restraint. However, banning all billboards in an historic neighborhood in order to preserve the character of the neighborhood would be content neutral.

Similarly, keeping religious messages out of public buildings does not prevent people from creating and disseminating religious messages in a society. While courts ordered the removal of a promient monument to Ten Commandments brought by a judge to a courthouse in Birmingham, Alabama in 2003, the courts did not prevent the people of Birmingham from discussing or practicing religion.

New York Times v. US, 1971 -- President Nixon tried to stop publication of the "Pentagon Papers," a secret history of the Vietnam War made for the Defense Dept. The papers had been leaked to reporters by Daniel Ellsberg, a Pentagon consultant. The court said the government had a heavy burden to prove there was a national security issue, and had failed to meet it. Thus, court orders halting publication of the papers were lifted.

US v. The Progressive 1979 -- The Progressive magazine of Wisconsin was going to print plans to build an H-bomb, gathered from public sources. The government got a restraining order. The appeal was made moot when other papers printed the leaked materials.

Daniel Ellsberg discusses Pentagon Papers
case with reporters in 1971. (AP photo)

Along with restrictions, incentives must also be content neutral. In Texas Monthly v. Bullock, 1989, the court said religious publications can't be exempt from taxes when other publications have to pay taxes, the court decided in this case. This is an example of the "content neutral" doctrine. It would be OK to tax all publications, but not to exempt any one group on the basis of their content.

US v. OBrien, 1968 -- laws criminalizing draft card burning were upheld because the Supreme Court said that effect of the law was not only to stifle dissent and the government's interest was to be able to raise an army efficiently.

Similarly, in Clark v. Community for Creative Non-Violence, 1984, a law that said homeless people could not sleep in Lafayette park was upheld.

Of course, there have been many cases in which overly broad restrictions on speech have been struck down. Perhaps most famous are the forced speech cases and the flag burning cases.

In Texas v. Johnson, 1989, the Supreme Court said that a state law prohibiting flag burning was not constitutional because only messages of protest were being punished. Burning the flag in a respectful way (an approved method of destroying old flags) was not illegal.

When Congress passed a similar law in 1990, it was struck down in US. v. Eichman. Considerable debate followed

Modern day sedition

Laura Berg, a clinical nurse specialist, wrote a letter in September 2005 to a weekly Albuquerque newspaper criticizing the administration for Hurricane Katrina and the Iraq War. She urged people to "act forcefully" to remove an administration she said played games of "vicious deceit."

A few weeks later, the head of the VA asked the FBI to investigate her for sedition, and her work computer was confiscated. Berg absoutely refused to back down, and by February the ACLU was suing the VA. By March 2006 the VA apologized.

This year, Berg got a PEN award for free speech and a terrific write-up in the New York Times.

Chaplinsky v. N.Hampshire, 1942 This case set out the "fighting words doctrine." Chaplinsky was cited for a breech of peace for calling someone "a damned fascist."The state law specifcally stated: "No person shall address any offensive, derisive or annoying word to any other person... " He appealed and the court said that the words could lead to action.

Brandenburg v. Ohio, 1969, set a new "imminent action" test that replaced "clear and present danger." The case involved a racist who spoke at a Ku Klux Klan rally and advocated "revengence" against blacks and Jews. Brandenburg's conviction under Ohio law was reversed, and so was the precedent set in Whitney v. California. The Supreme Court also drew on the dissenting opinions of Holmes and Brandies in Whitney and other cases in setting the new test.

RAV v. St Paul, 1992 -- An ordinance banned burning crosses, displaying swastikas or expressing religious or racial hatred. Some in the court said the city had plenty of ways to punish cross burners without an overly broad ordinance. The majority said fighting words doctrine cant be used to limit hate speech, and more or less overturned Chaplinsky

Virginia v. Black, 2003 --A Virginia state law that bans cross-burning is (as in RAV) a violation of free speech rights, but if the cross is burned with the intent to intimidate, a law to prevent it is NOT unconstitutional. Arguments are discussed here at a Freedom Forum site. A burning cross, so long associated with racial violence in the US, is a "true threat" (as in Watts v. United States, 394 U.S. 705) A state may choose to prohibit "only those forms of intimidation that are most likely to inspire fear of bodily harm." Columnist James Kilpatrick said: "The Virginia law makes it a felony publicly to burn a cross "with the intent of intimidating any person or group of persons." How is "intent" to be proved? No problem. "Any such burning of a cross shall be prima facie evidence of an intent to intimidate." Heads I win, tails you lose. This was a law that could not withstand the first breeze that blows across the First Amendment."

Planned Parenthood and "true threats"

One of the milder images from the ACLA site.

Planned Parenthood v. American Coalition of Life Activists -- This is the "Nuremburg Files" abortion web site case involving an Oregon office of Planned Parenthood and a Christian activist named Neil Horsley.

The web site featured X-ed out names of doctors who had been assassinated and inflamatory "wanted for murder and genocide" posters of living doctors. There were also testimonials to Paul Hill, an anti-abortion activist who used a shotgun at short range to kill a doctor and his guard.

A jury found that the web site contined "true threats" and violated the Federal Access to Clinic Entrances (which protects against threats) and ordered the site taken down (see injunction). The coalition won at the 9th Circuit appeals level, but the case was heard again en banc and Planned Parenthood won. The coalition appealed to the US Supreme Court but cert. was denied in June 2003.

Hurley v. Irish American gay lesbian and bisexual group of Boston, 1995 -- The Supreme Court said veterans groups have a right of association, and can decide whom they will include in their St. Patricks day parade. Gays have right to parade, too, and can exclude veterans if they like. To deny a right of association would be akin to forced speech, the court said.

The sensitivity to forced speech comes from a series of cases brought by Jehovah's Witnesses For example, in West Virginia Brd. of Ed. v. Barnette, 1943, the Supreme Court said that the state cannot compel students to salute the flag.

Pruneyard Shopping Center v. Robins, 1980 -- This is the culmination of a series of cases about free speech on private property that is open to the public. Previous cases had finally settled on restricting free speech in shopping centers and other semi-public places. In Pruneyard, a California law permitted literature distribution in shopping centers. The Supreme Court said state laws could expand on constitutional freedoms, and ruled against the shopping center's property interests.

In many other states, such as Virginia, surpression of speech on private property is routine. In fact, political activity is often protected on public land during concerts or even during political events.

The Wind Done Gone -- In April, 2001, the 11th Fed. Circuit court temporarily blocked publication of "The Wind Done Gone," a parody of the grandiose Southern historical fiction Gone With the Wind. The injunction was soon lifted and in June, 2001 the book was published.

A year later, the lawsuit on behalf of the heirs of the author of Gone With the Wind author was settled.

The court's final decision noted: "Copyright does not immunize a work from comment and criticism."

An ongoing issue is the extent to which prior restraint (in the form of a temporary injunction) should be used in copyright cases such as this one.

International perspectives on censorship

Reporters Without Borders
"It unfortunately seems that the prevailing intolerance encourages manifestations of tension of every kind. Bans or threats to publicity campaigns, shows, books and films, live TV broadcasts with delayed transmission, self-censorship, compulsive recourse to lawsuits and prosecutions at the least wrong word, outrage made to order, oratorical prudence and rhetorical hypocrisy - isn't free expression in the process of losing ground ?

"We obviously need to reflect more on this and seek appropriate responses. This means our work is not over. What more do we need to be roused to further action ?" -- Pierre Veilletet,. President, Reporters Without Borders - France, 2004.

Venezuela -- New press laws may threaten government criticism, but media owners have combined against a popularly elected government and backed several coup attempts.

See also the Committee to Protect Journalists web site