Censorship is a major issue in the United States, so it is not surprising that it is closely and heavily regulated. Considering the constitutional guarantee to free speech and expression, censorship in the United States is met with much legal challenges from various sectors. The foregoing notwithstanding, censorship laws are not completely banned in the United States. However, American censorship laws tend to be very limited in scope so as not to impinge on constitutionally guaranteed rights. In this article, we will go through some of the common American censorship laws so as to give you a better grasp of censorship in the US.
What are the common laws on censorship in the United States?
While this article is by no means an exhaustive discussion of all American censorship laws, this should give you a better idea of how censorship is implemented in the United States. Among the better known censorship laws in the country are as follows:
Libel and slander laws. Libel and slander laws are among the first to come to mind when speaking of censorship laws in the United States. This is understandably so considering the controversy surrounding the same and the long lines of decisions from various courts discussing the same. Each state has its own policy on libel and slander, but generally such acts are considered civil wrongs. At present, criminal libel laws are in place in 24 states in the US. Winning a libel case is quite challenging in the US, given the primacy given to free speech. As early as 1964, the court has ruled in New York Times Co. v. Sullivan that in order to win a libel suit, public figures must first prove the existence of actual malice. By way of another exception to such libel and slander laws, legislative debates are also granted immunity from suit.
Local censorship laws. Despite the constitutional guarantee espoused in the First Amendment, it was ruled in the case of Gitlow v. New York in 1925 that the First Amendment does not apply to states and municipalities, thereby giving the same a certain amount of freedom in censoring books, newspapers, magazines, plays, and such other similar forms of media. This ruling, however, was not without legal challenges. True enough, in the 1950s, the First Amendment was held by the Supreme Court to extend its protection even to states and municipalities, thereby bringing about stricter standards of review insofar as local censorship laws are concerned.
Sedition Act. The Sedition Act of 1918 is an extension of the Espionage Act which was enacted a year earlier. The said Act is considered largely controversial and has been the basis for the imprisonment of individuals who either refused to be drafted to the war or opposed the war altogether. Later on, this Act became the basis for state laws which criminalize sedition. This is not to say, however, that sedition laws are not without restriction. For example, the Supreme Court decision in Schenck v. United States upheld the espionage Act but gave rise to the “clear and present danger” test. Meanwhile, Brandenburg v. Ohio gave rise to the “imminent lawless action” test in 1969. Given the foregoing tests, state sedition laws face stricter scrutiny at present.
Smith Act. The Smith Act or the Alien Registration Act of 1940 is a federal statute which criminalizes knowingly or willfully advocating, abetting, advising, or teaching such ideas which looks favorably upon the overthrowing of the United States government or any state for the matter through the use of force or violence. The said Act likewise penalizes as a criminal offense the act of organizing associations which teach, advise, or encourage the overthrowing of government, as well as the act of joining such organizations.
In addition to the foregoing, the Smith Act also requires non-citizens residing in the United States to register with the government for purposes of implementing the provisions of the same.
Digital Millennium Copyright Act. The DMCA was unanimously passed on May 14, 1998. While not expressly a censorship law, the DMCA may be classified as such given its applications. The DMCA, as with other copyright laws, effectively prohibits the republication and dissemination of copyrighted materials absent the permission of the holder of the copyright. More specifically, the Act criminalizes the act of producing and distributing or disseminating forms of technology which affords the users thereof the ability to circumvent technical restrictions on the distribution of copyrighted materials. Under the DMCA, an act is illegal if it amounts to the circumvention of a technical restriction put in place to control access to copyrighted materials and done with the intent of violating the rights of the holder of copyright.
The DMCA provides an exception for research, but it nevertheless has a significant effect on cryptanalytic research, especially as regards the publication of encryption keys which are typically used to crack copy-protected movies.
Judicial orders. These are technically not laws, but their application tends to have a similar effect. Judges are vested with the power to order the parties to a case to not disclose any information pertaining to the case at hand. Such orders, typically referred to as “gag orders”, are issued so as to prevent the disclosure of information which the court deems to have the potential of interfering with the ongoing litigation. Court documents are deemed as matters of public information, but there are cases which warrants the sealing of records so as to protect certain information, as in the case of suits involving minors. It must be noted, however, that this judicial power is subject to strict review by superior courts.
As can be seen from the aforementioned laws, censorship laws in the United States tend to have a very limited scope and are typically met with substantial legal challenges. Even laws which were deemed constitutional when passed sometimes have to succumb to the changing times, as well as to stricter judicial scrutiny. That said, in order to understand the extent of the freedom of speech in the US, having a basic understanding of existing censorship laws is paramount.