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Debating Culture and the Courtroom—Past and Present

Changing Times, Changing Censorship
By Wanda Routier

Source: Marjorie Heins, "Culture on Trial : Censorship Trials and Free Expression." Insights on Law & Society 2.2 (winter 2002).

Banned books. Protested movies. Arguments about curriculum. What is censorship and who should make the decision to censor? Should the opinions and beliefs of one group be forced on others who may not agree?

In the early to mid-1900s, Boston was leading the country in censoring books. The label "Banned in Boston" meant the book typically had too much obscene writing in it for the citizens of Boston to accept. Although Boston was the leader in this type of censorship, the rest of the country followed right behind. The idea that the First Amendment protected the free expression of authors and readers did not come until much later in the twentieth century.

America borrowed many of its laws from England, and obscenity laws were no exception. At first, in the 1700 to 1800s, both countries were concerned with two main censorship issues: sedition, or threats to overthrow the government, and blasphemy, that is, irreverence toward God. It was not until the 1850s that obscenity (including sex) was added to this list of items to be censored. Courts in both countries sought to suppress speech that touched on these issues, whether in art and literature or in political pamphleteering.

What was "obscenity" and how was it to be distinguished from acceptable forms of expression? In 1868, the English Court of Queens Bench defined obscenity in the Regina v. Hicklin case. The court wrote that a work was obscene if it tended to "deprave and corrupt those whose minds are open to such immoral influences"… and … "if it might suggest to the minds of the young of either sex, and even to persons of more advanced years, thoughts of a most impure and libidinous character." In other words, if someone might think "impure" thoughts after reading or viewing a work, the court could consider the work to be obscene.

Courts in both England and America used this definition of obscenity for nearly 100 years. "Innocence of youth" was the standard by which obscenity was judged. However, Hicklin raised many troubling questions, including: Should adults have the right to read or view adult material? When does one become an adult? Should adult material be banned because a young person might see it? How could a court know whether a particular book, when read by a young person, would bring "impure" thoughts into his or her mind?

This standard for judging obscenity did not change until 1957 when the U.S. Supreme Court announced that the First Amendment does not permit the government to reduce the adult population to reading "only what is fit for children." The Court's decision in two obscenity cases effectively rejected Hicklin and created a new test that considered whether the work was meant for adults or minors. It gave constitutional protection to works unless they were "utterly without redeeming social importance." Again, the question remained regarding how to interpret what this vague and subjective standard meant and how it should be applied.

In 1968, the U.S. Supreme Court issued another decision in an obscenity case, this time based on a sliding scale, or "variable obscenity" rule, under which works protected by the First Amendment would lose all protections if distributed to minors. However, difficult questions remained: What exactly did "harmful to minors" mean? Who made that decision?

Film Industry Censorship
Censorship impacted the film industry as well as the literary world. Although film is often considered one of the more important art forms of the twentieth century, it was viewed at first merely as a business and not protected as a means of expression under the First Amendment. In 1915, for example, the U.S. Supreme Court upheld an Ohio law that banned the showing of any motion picture unless it was first submitted for approval to the state's licensing board. States set up local licensing boards that could ban any movie they determined was "indecent, immoral, sacrilegious, or otherwise harmful." Through the 1950s, banned films included newsreels of police shooting at striking workers, a film version of Carmen because it showed women smoking in public, and in many places, any film protesting segregation.

In the 1950s in Burstyn v. Wilson, the U.S. Supreme Court rejected the view of film as a business with no Constitutional protections. Justice Tom Card said that movies were undoubtedly "a significant medium for the communication of ideas" and were protected under the First Amendment. Despite this ruling, licensing boards continued until 1965 when Maryland's licensing system was ruled invalid because it did not allow for "prompt judicial review of a film to determine obscenity." From that point on, licensing boards were halted, with Texas being the last state to remove the boards in the 1990s.

The film industry also had its own self-censorship system, the Hollywood Production Code, which was in effect from the 1930s until the 1960s. This code, along with the licensing boards, governed how films would be written and approved for production. It included a list of "don'ts," including the rule to omit anything insulting to religion. For 30 years the Catholic Church reviewed scripts before production, and censorship was alive and well. Little that was offensive was included in films during this time period.

Today, a comparison can be made between film censorship of the past and the current controversy over the Harry Potter books and film. Should a state or locality make the decision to ban a film based upon the view that Harry Potter is about witchcraft and wizards and therefore harmful to the young minds who view it? Are the vague and subjective standards that are used to define obscenity applicable here?

Work Place Censorship
In addition to affecting works of literature, art, and film, censorship was also used to prevent individuals with subversive views from obtaining government jobs. For example, in the 1950s states and localities had laws that effectively kept people out of jobs if they had "subversive views or were members of a subversive organization." The fear was that people who associated with organizations such as the Communist Party could become teachers or other government employees and would poison the minds of young people. As a result, teachers were subjected to interviews where they were asked what books they read, who their friends were, who they voted for, and other personal questions. The U.S. Supreme Court, in the 1952 case Adler v. Board of Education ruled that such questioning was justified to stop members of undesirable groups from influencing the minds of youth.

However, it was not until 1967 that the Supreme Court reconsidered its approval of political tests for public school employment. In Keyishian v. Board of Regents, an English instructor at the University of Buffalo disputed the requirement that forced him to sign a document stating he was not, and had never been, a member of a subversive group or taught that the U.S. government should be overthrown. Keyishian challenged not only these oaths but also the state's listing of subversive organizations, its disqualification of teachers who made "seditious utterances," and its rule that membership in the Communist Party, even if inactive, was grounds for dismissal.

The U.S. Supreme Court ruled that terms such as seditious and bans on advocating, teaching, or advising the doctrine of forceful overthrow were unconstitutionally vague. For example, if a teacher presented the principles of the Declaration of Independence, or of Marxism, was the instructor "teaching…the doctrine of forceful overthrow?" Because vague and subjective standards such as these would not be interpreted the same by every person, consistent enforcement of the law would be difficult.

The type of censorship at issue in the Adler and Keyishian cases (i.e., censorship that interfered with an individual's personal life) can also be compared to the Salem witch hunts where the community was "looking" for people who were doing evil. During the Adler and Keyishian era, the government was similarly "looking" for Communists and conducted interviews to intimidate citizens and "weed out" undesirable teachers and government workers. Today, the question can also be raised about whether a similar type of weeding out is occurring with the current terrorist hunts. Do all religious groups who practice Islam believe in the radical view of the Taliban? Should most foreigners be considered a threat? What about "homegrown" threats? Vague and subjective standards for evaluating others' beliefs or differences may ultimately amount to censorship when ideas and free expression are limited.

Censorship is seen in modern times as well. For example, Senator Jesse Helms criticized a religious photograph he deemed offensive while former New York Mayor Rudolph Giuliani attacked the Brooklyn Museum for exhibiting offensive artwork. As a result, some groups have lobbied the government to tie arts funding to religious or political approval. Does this sound similar to the film licensing boards of the past? What influence should the current cultural climate have on legal decisions about censorship?

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