Salient Episodes in the Struggle Between Censorship and Free Speech

on the Ground of Media

I. A Global Mutation in Media: the invention and expansion of print media (1456-1644)

II. Print on the market and the ideal of Public Culture

III. Photography and the shock of the actual

IV:Wanting it My Way in Film and Broadcasting

V: Censorship and Speech in a Webbed World: Negoitations Renewed

I: A Global Mutation in Media: the invention and expansion of print media (1456-1644)

• Johann Gutenberg: first bible printed with moveable metal print 1455
• Luther translates the Vulgate into German (1517--95 theses published)
• Founding of the Papal Index
• Catholic Church demands retraction from Galelio
• Regimes of State Censorship (Francis I of France; James I of England
• English Civil War de facto lapse of State censorship
• Milton's Areopagitica: 1644

Many scholars have noted a striking historical analogy: in 1994, with the arrival of an easy to use graphics interface for the Internet, the WWW, our culture has experienced something akin to the movement from manuscripts to print in the 15th Century. Historians of media differ on many features of this global mutation in media: on the character of a culture centered on manuscripts, on the causal effects of print, on the degree to which media shapes or is shaped by culture. But there are three features of this shift that most scholars accept. Each has important implications for our ongoing institutionalization of the Web:

1. The expansion of the numbers and varieties of the centers of production: The development and use of moveable type to print--when coupled with the whole infra-structure of the print revolution (printers, booksellers, the postal system, turnpikes, newspapers, public education, etc.)--greatly expanded the number of writers and readers and texts. In an analogous fashion, the Web made it relatively easy to broadcast/publish from one computer to the millions of linked computers.
2. The centrality of the project of transcription: Print culture does not replace manuscript culture; instead, the earliest users of print mimiced the genres, layouts, and letter styles of manuscipts, and transcribed the content of the manuscript archive into print. (McLuhan, Eisenstein) Gradually however, the new medium began to enable media forms and practices entirely new with print: the printed broadsheet ballad or newspaper, printed off for an occasion (like a coronation or a hanging) and circulated to large numbers of readers within hours of composition; the printing of many copies of one map so they can be consulted by widely dispersed users; the compilation of a comprehensive bibliography of all books (Chartier).
3. The potential challenge to instituted regimes of power and knowledge: Try this thought experiment: Imagine yourself as the ruler of a small kingdom before the existence of any electronic media technology or any printing technology. In order to rule your kingdom, you rely only upon writings (of religion, law, science) and speech (in council, on ceremonial occasions, and through proclamations). Manuscripts are rare, expensive, and reserved for important matters; literacy belongs to a privileged few who can read and write. Now imagine the arrival of printing and the opening of writing and reading and the act of publication to the multitudes. What would be your media policy?What steps would you take to control the use of printing?

This thought experiement helps explain the censorship projects, conceived by the Catholic church and monarchs like Francis I of France and James I of England, to contain the menace of print. We late moderns are so used to a promiscuous glut of print media that it is difficult for us to understand why so many early moderns experienced a unsupervised printing as a mortal threat to civilized life. Throughout the 16th and 17th Centuries, those who framed media policy worried that the spread of print would expand religious heresy and political sedition. They were right to worry. The subversive power of printing is illustated by Martin Luther's translation of the Latin vulgate (15??) into German: by delivering the scriptures into the hands of every believer who could read their native tongue, authority over the meaning of Holy Scripture is dispersed. Little wonder that the Pope convenes the Council of Trent to combat this democratization of religion with new systems of control. Most early modern systems of censorship required that anyone seeking to print a book--whether the author, bookseller or printer--receive a license from an officially authorized granter of licenses.

An Unlicensed Press: History ran an early experiment in unlicensed printing: during the English Civil War (1641-1649), when Parliament had won effective control of London and the Stuart monarchy raised its standard at Oxford, England experienced a suspension of the informal system of censorship developed by the Crown and the Stationery's Company in the first century of printing in London (Feather). Civil War brought an unregulated explosion of print--much of it propaganda designed to advance one side or other in the war. Citizens began to experience, and perhaps enjoy, unfiltered access to a wide variety of writing. When the Parliament passed a new licensing act in 1644, which was modelled upon that of the monarchy it abhorred, John Milton published Areopagitica: an Address to Parliament for the Liberty of Unlicensed Printing. Milton's text outlines the argument for the system that exists in most of the liberal democratic states of our own day: a press that is "free" because there is no "prior restraint" of the press. In Milton's world of readers, the critical function of censorship--deciding what is true and false, good or evil--passes to the individual reader. In effect, each reader becomes his or her own censor.

Printing helped to make writing an ambient part of culture; print became a medium almost as pervasive as speech. Many in the early modern period still believed that censorship was possible. But, in fact, if one studies projects of censorship (from the 17th C. England and the Old regime in France to modern Russia, China, and Iran), one finds that censorship almost always fails. Rather than winning full control of what is written, published and read (as some may have dreamed of doing), official censorship becomes an unintended collaborator of writers. It inflects the character of texts written in the wake of censorship. See below, movie production code.

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image: of print version of the Declaration of Independence

Holmes: "But when men have realized that time has upset many fighting faiths, they may come to believe ...that the best test of truth is the power of the thought to get itself accepted in the competition of the market..."(Abrams v. United States, 1919)

Brandeis: "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. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the process of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of evil apprehended is so imminent that it may befall before there is opportunity for full discussion. ...Only an emergency can justify repression. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assemblly by showing that there is no emergency justifying it." (Whitney v. California, 1927)

Act II: Print on the Market and the Ideal of Public Culture

• The "Glorious" Revolution, 1688
• Lapse of the Licensing Act, 1695
• First Copyright: Law of Queen Anne, 1709
• Mandeville, The Fable of the Bees, 1704, 1714
• Addison and Steele, Spectator, 1711-1713
• Trenchard and Gordon: Cato's Letters 1722
• Declaration of Independence 1776
• First Amendment to the US Constitution & Sedition Act 1789-91

Narrative: How did free speech become a sacred cow and censorship the "C-word"? In the century after 1688, there emerged in England and America a liberal democratic paradigm for conceptualizing the relationship between censorship, free speech and media. Although this paradigm has been subjected to probing critique (Gaines), it continues to provide the terms for many of our contemporary debates upon the proper uses and abuses of new media. There are three cardinal elements to this liberal democratic paradigm: the centrality of a market supposed to be free; the democratic concept of power as an empty place; and the radical claim to freedom of speech.

1. The centrality of a market supposed to be free. By granting state sanctioned monopolies to guilds and companies, Renaissance monarchs were able to profit from those enriched by a monopoly, and sustain a measure of control over the activities of production. Thus, for example, the Stationer's Company was given monopoly control to regulate the patent and copyright of individual booksellers and printers; in exchange the Company limited production to a limited number of London booksellers and exercised licensing powers on behalf of the state. Here, the regulation of trade and the censorship of writing go hand in hand. With the lapse of the Licensing Act in 1695, this formal legal arrangement broke down. Now protection for those who owned property in manuscripts was achieved through the first modern copyright law, the Law of Queen Anne (1709). During this period cultural observers began to conceptualize the remarkable powers of an unregulated market. Addison celebrated the ability of markets to draw every luxury in the world to the Royal Exchange where common interest would reconciles the differences of Arab, Jew and Gentile.(1711) Bernard Manderville isolated the paradoxical moral economy of markets: private vices (like greed and vanity) fueled the purchase of goods that produced public benefits, like unprecedented national wealth experienced by England. (1704) Over the course of the century, cultural critics worried that markets in print, through the cumulative effect of many isolated decisions to buy or not to buy, effectively circumvented earlier forms of cultural authority and performed designations of value beyond the reach of any guiding moral or aesthetic judgment. In the wake of the new ascendency of the market, the modern struggle between an improving higher culture and the more popular insistence upon being entertained, had been joined.
2. The democratic concept of power as an empty place. With the accession of William and Mary in 1688, decisive power shifted from the individual monarch to an elected body, the Parliament. John Locke is usually credited with conceptualizing a newly limited concept of government, one stated in the 2nd paragraph of the Declaration of Independence: that government draws its legitimacy from the people; government only exists to protect the prior rights of the individual (rights to life, liberty and property); when a government becomes destructive of these ends the people have the right to cast aside this government. There is another way to conceptualize limited government: instead of the power of the state being vested literally and symbolicly in the monarch's body, power was now located in an empty place--the persons and parties (Tory and Whig) of Parliement.(Lafort) This deplacement of the monarch's body puts a new importance upon the public exchange of discourse, whether in the form of speech, writing, or print. The flourishing of political journalism--both that sponsored by the parties in power, and that launched by opposition--becomes the discursive matrix for this interminable political negotation. Habermas has described this new political arrangement as depending upon rational debate in the public sphere--a medial zone between the State and the intimate sphere of family and work--where private citizens can confront the State and freely exchange opinions upon matters of importance to all. Limited government, the priority of individual rights, the free exchange of opinions, broad education of the citizenry, these are the basic components of the liberal ideal of public culture. This liberal ideological synthesis relies upon an analogy between economic and political circulation: the emergence of a public culture valuing the "free exchange of ideas" is coextensive with the emergence of modern unregulated markets for the "free exchange of goods." (See Holmes.) In a distinctly British and American ideal of the way the markets in goods and ideas should work, value (that is, "wealth" or "truth") appears to increase through the operation of a market system that is spontaneous, unsupervised, free and thus "natural."
3. The radical claim to freedom of speech The expansion of a public culture depends upon public-ation in print; but it leads to a claim to the primacy of the right to speech. Cato's Letters, the influential political journal of the 1720s written by Trenchard and Gordon, turns the freedom to speak into a radical test of a person's liberty and property in himself, and an indicator of the tyranny of others: "...in those wretched countries where a man cannot call his tongue his own, he can scarce call any thing else his own." The American nation is founded in a spectacularly successful enactment of free speech: a declaration of independence from England. By writing, signing, printing and distributing the Declaration of Independence, and by successfully countersigning that printed speech with blood, the "united states of america" started on its way to become the U.S.A. When the colonies forged a Constitution to formalize their union, worries about the abuse of power by this new central government led to the passing of the 1st Amendment to the Constitution. There, between the right to practice religion, and the rights peaceably to assemble and to petition for redress of grievances, freedom of speech is given protection. But this "right" is not won through the laws of the Legislature, but through a law against laws: "Congress shall pass no law...abridging the freedom of speech or the press,..." The abstract character and absolute value given freedom of speech by the 1st Amendment results in part from the double negative which protects it from definition and limitation by the state: Congress shall pass no law ...abridging it. In practice state courts and the Supreme Court have been called upon to define what is protected by this amendment and what is not. But the process of legal review during the two centuries since the ratification of the 1st Amendment has not narrowed what freedom of speech means; instead, judicial review has led to a dynamic expansion of the concept of free speech: first, in Madison's and Jefferson's battle against the Federalist's Sedition Act of 1798; much later, in a series of cases surrounding the Espionage Act of 1917 passed to limit protests against American participation in WWI, Justices Holmes and Brandeis developed the rationale for protecting the citizen's right to criticize their government, even in times of war; finally in 1933, Ulysses as cleared of the charge of obscenity because of its "redeeming aesthetic value;" even the right to take off one's clothes before an audience has been granted protection under the 1st Amendment.( )

Robert Mapplethorpe, Self Portrait, 1978. Always the naughty boy. Note the blatant theatrically and the arch irony of this image's address to the viewer. With this image, I find that a website on censorship cannot elude the dynamics it describes. I have censored this image, as well as of next five images, in order to respect the sensibilities of more sensitive viewers.

Five photographs were deemed obscene by the prosecution when Mapplethorpe's art was put on trial in Cincinnati v X. Here is one, entitled "Marty and Veronica." Click on the image for the full (censored) photograph.

Marty and Veronica 1982

Here are the four other images entered into evidence at the trail. See if you think these images are obscene by the Supreme Court standard in Miller v. California, and then compare your judgment to the verdict of the jury.

III: Photography and the Shock of the Actual

• 19th Century photography--for porn, for portraiture, for identification of criminals
• The "brownie" and catching Kodak moments
• Robert Mapplethorpe's "X Portfolio" and the NEA: a case study in the shock of the actual
• the digital mutation: the image no longer indexes an antecedent object or a moment

Narrative: Photo-graph is Greek for "light writing." In the early days of photography many argued that copyright over a photograph was impossible because the image was "drawn" by "nature." To this day the power of the photograph consists to its evidentiary power--upon the notion that upon the photograph there is a trace of the actual object and a moment of inscription deposited upon the negative and rendered visible on the positive copy of that negative. That is why photographs can be entered into court as evidence of a crime: it produces produce proof of some thing "there" at the time and place of the inscription of the image. Many of the earliest uses of photography suggest the power of this inscription of the actual upon film: pornography etches the nakedness of an actual model into an image, the portrait captures a unique individual, and a compiled inventory of mug shots can aid in the identification of criminals.(T. Gunning) New technologies extended the reach of the photograph: the cheap Kodak camera enabled millions of amateurs to become photographers of the intimate family life; the telegraph allowed transmission of the news photograph around the world; cinema introduced movement into photography; xerography allowed incorporation of images into the most ordinary newsletter; television transmitted the image; video allowed it to be recorded, and the jpg and the avi has brought the photograph and the moving image to the computer screen.

But with the new forms of digital manipulation of the image, a breach with the actual has occurred. With the ability to compose the simulation of a photograph (a species of "anti-photograph") out of iterable elements, we may be reaching the close of the era when a photographic image can be taken as an index of the actual object, or a moment of inscription. Digial workers have become to create complex narrative films without lived actors or material sets: the image is being set free from the matter it used to etch.

Robert Mapplethorpe and the Contraversy about funding the NEA: The story of the scandal precipitated by a showing of a retrosepective show of the photographs of Robert Mapplethorpe has been told many times. Here are the key facts: NEA funding was used by the ICA at Uof Penn to put together a show, entitled "The Perfect Moment", to offer a retrospective of a talented young artist Robert Mapplethorpe, who had recently died of AIDS. The show included provocative images from gay sexual practices, as well as some images of young girls with their genitalia exposed. Members of the Christian right found out about this show, and support for another photographer Andreas Serrano, which included an image of a crucifix suspended in urine ("Piss Christ.") When members of the Christian right circulated some of these images in their news letters to consituents, certain members of congress were inundated with protest letters. This led to a debate on the Senate floor--led by Jesse Helms and Alphonse D'Amato--condemning the NEA for sponsoring this pornography as art. The debate that ensued mobilized the art community, the Christian right, and many between these two extremes in what came to called the "culture wars." What is most pivotal here is the power of photographs to shock--not simply by what they re-present, but also by what they evidence--acts and practices and events. These became the focus of litigation when the director of the Cincinnati Museum, who had sponsored a show devoted to Robert Mapplethorpe's photography, was taken to court on grounds of obscenity. Five photographs were selected as grounds for the prosecution. In the most extreme images of the Mapplethrope show--the X Portfolio--displayed as small images on tables in the gallery of the show one could find representation of sexual practices that were considered by many observes to go over the line: for many this was not art but pornography--both improper and inappropriate

Painting: Lady Reading the Letters of Elouise and Abolard

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From Cecil B. De Mille's The Sign of the Cross, 1932. With this shot De Mille ignored the Production Code's restrictions on nudity. Notice that while the film represents a Christian about to become a martyr for her faith, the film fixes her in a posture and with (a fetching over the shoulder) glance that suggests her willingness to join in an erotic embrace with the pagan Satyr figure to whom she is bound.

IV: Wanting it My Way in Film and Broadcasting: the demand to be Entertained encounters the imperative to protect young eyes and ears

• Movie Production Code 1920
• Invention of Radio and Institution of Broadcast Networks
• Founding of the FCC -- 1934: 7 forbidden words
• Movie Ratings System 1968: MPA
• Development of Cable Television........allows expanded programming for TV
• popular adaptation of the VCR
• Meese Commission--1980--focuses upon pornography as visual
• George Carland?, Howard Stern and the Affinity Broadcasting case: 7 forbidden words
• TV rating system -- 1998
• V-Chip introduced in TVs --1999

For most of the last two millennia, the theater has been the dominant medium of entertainment. Only after nearly three centuries of print medium (1456-1750) did the novel reading emerge as a major form of entertainment. In the century since the arrival of film, technology and capital have conspired to expand the power, reach, and variety of the forms of entertainment: film, radio, the phonograph, television, video games and the World Wide Web. Grasping the enormous influence of these new media, our culture has moved toward a condition of contiuous negotiation between two groups and positions: 1) those who favor unfettered expression and access: this group claims the right to produce or consume entertainment texts without any restraints or filtering, except that exercised by the consumer of art and entertainment; and 2) those reformers of media who work to develop systems for controlling the production, distribution, and access to forms of mass entertainment, so those entertained, and most especially the impressionable eyes and ears of the young, can be protected from images and ideas said to menace public morals and community values. Because of the exuberance of the market forces forever promoting new forms of enterainment, and because of the absence of legally sanctioned government censorship, those who would protect the public against bad media and expose them to the good, must find ingenious new ways to censor.

Specific examples and episodes in the struggle between expression and censorship:

• Precursor in Print Media: Novel Reading for Entertainment: In the late 17th century, authors and booksellers in Britain developed a brief, easy to read, plot centered novel that was laced with vivid sex scenes. The popularity of these novels of amorous intrigue, written by women writers Aphra Behn, Delariviere Manly and Eliza Haywood, was a scandal to the more literature traditional book culture of the day. Cultural critics worried that naive young readers would be absorbed by arousing fictions and emulate their dangerous, and morally corrupt, life narratives. In response to new reading practice, Defoe, Richardson and Fielding wrote novels that absorbed elements of the novels of amorous intrigue, at the same time that their novels turned readers toward an ethical mediation upon the dangers of erotic license and unbridled novel reading. Subsequent literary history has dubbed these three canonical authors the originators of the English novel, and deleted the earlier novels from legitimate literary history.(Watt) Several factors are crucial to the elevation of the novel out of a form of entertainment: novels, as a new literary form, are distinguished from the popular mass of "mere" fiction; novels are subjected to "serious" criticism by reviewing journals; finally, novels are included in the school curriculum and the object of specialization by scholars. (W. Warner) This transformation of entertainment into art takes many years to accomplish: it makes reading popular (or pulp) fiction a way to pass the time while novel reading comes to be regarded as an enlightening cultural activity.
• Censorship in Hollywood: Thus new technologies produce new and more powerfully absorptive forms of entertainment, and new rounds of anxiety about the effects of this new media upon culture. The development of film brought a remarkable visual spectacle to all, even the illiterate. While its powers of verisimilitude opened up the prospect of improving forms of entertainment. Thus, upon seeing D.W. Griffin's Birth of a Nation, Woodrow Wilson ascribed to it nothing less than the power of "writing history with lightning."(Miller,30) However cultural critics like () took note of the long lines of working people crowding into the Nicelodeons and accused the new cinema of being addictive and debilitating. Even the grand moralistic spectacles of Cecil B. De Mille could include images calculated to arouse a prurient interest in the audience. When the Catholic Church teamed up with local censorship boards to take control of the exhibition of the new cinema, the film industry hired Will Hays, President Harding's Postoffice master, to organize their own system of censorship and regulation. In the progressive narrative usually applied to the evolution of systems of censorship, the Production Code is usually understood to be particularly invasive (it worked with studios at every stage of film production) and proscriptive (it's offered a long list of "Don't and Be Carefuls" (Miller, 39-40), while the more benign Rating System ushered in by Jack Valenti in 1968 is described by its promoters as a viewer's guide (so parents can protect children from films not appropriate to their age) and voluntary (a producer can choose not to have their film rated). However, in fact, the implementation of both the Production Code and the Ratings System have been shaped by several global general features of the the American film industry. First, the film industry has no interest in censoring the production of whatever material can attract viewers (however sexy or violent), except in so far as self-censorship is the best way to avoid more draconian forms of federal, state and local censorship. Secondly, Hollywood censorship has never been a legal necessity, the failure to receive the production code seal of approval or a ratings letter could be so diminish the size of the available audience that it would have a force equivalent to law. But finally, whenever a certain system of censorship reaches equlibrium (naked breasts gets a movie an "R"), changes in sexual mores and the influence of foreign imports, can lead to a dissolution of the earlier concensus.
• Radio broadcasting: the need to regulate frequencies so different transmittors will not deform each other's signals overlaps with the wish to limit what a child, scanning the dial, could be exposed to --> 1934 legislation founds the FCC; the 7 forbidden words
• Television: in the beginning live broadcasting and a limited number of national networks makes censorship relatively easy; but the extension of TV first with cable and then with the VCR leads to a de facto loosening of controls and regimes of censorship; paradoxically, the fact that you pay cable TV means that you can select, and therefore should have more to select from; it gives the viewer more responsibility for the act of consumption; but, in the age of the proliferation of sets, and increasingly lax control of children by parents, those who would censor turn to ratings and the V-chip.

Factors informing and disrupting modern systems of media censorship: All of these modulations of censorship unfold within entertainment systems dominated by the market and in the absence of official government censorship f one looks at specific episodes in this ongoing negotitiaton, one finds that those favoring unfettered access receive support from several factors: the Anglo-American relectance to censor; the profit motive, which pushes producers to increasingly extreme forms of sex, sin and violence; and, successive mutations in the technologies that reproduce and disseminate entertainment. However, these same factors--the absence of official government censorship, the priority ceded the market, and technological innovation--have instigated new techniques for censorsing and inflecting mass entertainment.

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V: Censorship and Speech in a Webbed World

• Founding of the WWW - 1994
• Communications Decency Act 1996
• Overturning of CDA - 1997
• Pamela Anderson/ Tommy Lee Curtis video --1998
• Removal of "Nurenberg Diaries" from the Web -- 1999

Narrative: In the five short years since the birth of the Web in 1994, most of the stress lines/ issues raised through the longhistory of censorship and free speech have reappeared in the debates around developing a public policy for the Web. Perhaps because Web technology offers unparalleled access to the means of reproduction, the question of copyright and fair use looms large. With the emergence of the web, economic censorship--censorship on the grounds of copyright--seems to be emerging as the most formidable form of censorship.