Enforcement of Obscenity Laws Is Not ‘Censorship’

Morality in Media receives many inquiries from the public about the word "censorship."  Censorship still exists in many countries, where newspapers and other media must first submit articles, books, films, etc., to a Government authority for approval before they can be published.  With a few exceptions (e.g., to protect national security in time of war), “censorship” is not practiced in the United States.

From a historical perspective, the word "censorship" means prior restraint of First Amendment rights by government.  Enforcement of obscenity laws is NOT censorship because, first of all, the government is not imposing a prior restraint on the pornographers.  The porn purveyors are free to publish whatever they want, but if what they distribute or exhibit is obscene, they are, after the fact, subject to prosecution under the obscenity laws. As the Supreme Court said in Near v. Minnesota, 283 US 697, 714 (1931):

“In the first place, the main purpose of such constitutional provisions [i.e., the First Amendment's freedom of speech/press provisions] ‘is to prevent all such previous restraints upon publication as had been practiced by other governments,’ and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare…”

Second, the Supreme Court has repeatedly held that the First Amendment does not protect obscene materials.  As the Court said in California v. Miller, 413 U.S. 15, 24, 34 (1973):

This much has been settled categorically by the Court, that obscene material is not protected by the First Amendment…. [I]n our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom…

Many members of the public mistakenly believe that the First Amendment's “free speech” liberties cover everything that is written, spoken, or pictured.  Not true.  As the Supreme Court put it in Roth v. United States, 354 U.S. 476, 483 (1957): “[I]t is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.”

Here's a short list of “speech” that can be punished after publication without violating the First Amendment: perjury, contempt of court, libel, false advertising, fraud, copyright & trademark infringement, inciting a riot, threats, harassment, child pornography, and obscenity.  It is also important to remember that the First Amendment does not restrict actions by private citizens.  A publisher, for example, has every right to choose which books to publish and which not to publish.

Here are some examples of what “censorship” is NOT:

The federal or a state government enforcing child pornography or obscenity laws

The FCC enforcing the broadcast indecency law (after broadcast)
Citizens demonstrating in front of sexually oriented businesses
Citizens contacting TV networks to protest sex, violence, and vulgarity on television
Citizens boycotting stores that sell pornography
A video store choosing not to sell or rent pornographic videos
A newspaper refusing to permit ads for topless bars or "adult" theaters


Printed with permission from Morality in Media, Inc.




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