An Overview of Salient Episodes in the Struggle between

Censorship and Free Speech in Media

Censorship..is a necessary and constitutive part of culture.

Media...is the shifting matrix for free speech and censorship.

"Congress shall make no law...abridging the freedom of speech or the press..."

--First Amendment to the US Constitution, 1989

G GENERAL AUDIENCES All ages admitted.

PG PARENTAL GUIDANCE SUGGESTED Some material may not be suitable for children.

PG-13 PARENTS STRONGLY CAUTIONED Some material may be inappropriate for children under 13.

R RESTRICTED Under 17 requires accompanying parent or adult guardian.

NC-17NO ONE 17 AND UNDER ADMITTED

In the beginning was speech. The human development of the power to communicate through speech happened so early in the evolution of homo sapiens that we know next to nothing about it.[check] Because the power of speech is universal across all human cultures, because each normal human acquires speech so early in life--we call babies who can't speak, "infants" (from L. infans, without speech) thus differentiating them from other humans by what they lack-- speech seems native to us: hard-wired into our body, our brains, our tongue, and thus not a system of communication homo sapiens may have once lived without. The centrality of speech to humans may explain why speech has become a metonymy for human expression, as in the phrase, "let me have a word, please." In the early modern period, the English political activists Trenchard and Gordan align speech with the body, property and the self: "...in those wretched countries where a man cannot call his tongue his own, he can scarce call any thing else his own." Cato's Letters (#15, Saturday February 4, 1720) Within the party politics of the first half of the 18th Century in England, speech became the central weapon against tyranny.

The Declaration of Independence--written and signed in fair copy, signed, printed, and spread through the colonies, to be read aloud--began as an unruly act of speech, and became the origin of the American nation. It is also an object lesson in the seditious effect of media. The right to claim freedom of speech as a natural right acquired legal force through the Enlightenment revolutions and the Constitutions framed in their wake. The First Amendment to the US Constitution has had the practical effect of seeding American political culture with free speech incidents: those occasions when those who feel their freedom of speech has been stifled appeal to the courts to protect their right to "freedom of speech." But what is freedom of speech? In the writings of Milton, Locke and Jefferson, and in the First Amendment to the US Constitution, this freedom is often defined in negative terms. For example, the First Amendment reads "Congress shall make no law... abridging the freedom of speech or the press..." One scholar goes so far to claim that "there is no such thing as free speech."[Stanley Fish] First Amendment legal scholars avoid the problem of defining free speech by distinguishing it from speech that is unprotected by the constitution: sedition, libel, obscenity, or 'fighting words'; that remainder of speech "protected" by the First Amendment is therefore "free." Does freedom of speech function within our civic discourse as the opaque kernel of our secular spirituality? as a theater for a heroic transgression of boundaries in the name of "Truth"? as the means by which any plain speaker can prove they are "free?" Is freedom of speech therefore a romantic illusion? In spite of these skeptical questions, freedom of speech is the implicit positive term in attacks upon censorship, and a guiding ideal for libertarians who dream the future for new media like the Web. If free speech has been one of the main ways Americans assured their participation in public discourse, increasingly it has also become a way for Americans to claim right of access to art and entertainment others deem improper and inappropriate.

I: A Global Mutation in Media:the invention and expansion of print media

• 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 bibliography of the ever increasing number of 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 manuscipt writing (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 serious 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 illustrated 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 in 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. This became the accepted norm throughout Europe in the early centuries of print.

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.

The Dunlap broadside: 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)

• 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

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.

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.

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."

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 was 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.( ) These legal protections of speech helps explain why our newspapers daily report what I call "free speech incidents." These have three component elements: 1: the initial "speech" (the legal term for any act of expression) of a citizen; 2: some sort of action taken to punish speech and/or close down the space for further speech; 3: an appeal to a higher authority, usually a court, to recognize this punished speech as protected by the 1st Amendment of the US Constitution.

• 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. This famous photograph of a migrant mother during the dustbowl migrations of the 1930s is an outstanding example of this sort of photograph. 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, 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.

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. Here is one, entitled "Marty and Veronica."

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. 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. According to Miller vs California (1972) , the Supreme Court ruled that obscenity was not protected by the Constitution, and that a work can only be judged obscene if it meets all three of these tests: the "average" person finds that it "appeals to the prurient interest" (by seeking to arouse sexually); that, applying community standards, the work depicts or describes sexual conduct in a "patently offensive way"; the work lacks "serious literatry, artistic, political, or scientifica value".

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
• George Carlan?, 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 media (1456-1750) did 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 continuous negotiation between two groups and positions: 1) those who favor unfettered expression and access: this group embraces the new entertainment media and 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 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, have had to find ingenious new ways to censor.

Specific 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 fiction a way to pass the time while novel reading comes to be regarded as an enlightening cultural activity.
• Censorship and expression in Hollywood: 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. 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 Jane Addams, the Chicago social reformer, took note of the long lines of working people crowding into the Nicelodeons and suspected 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. With this shot from The Sign of the Cross, 1932, 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.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.
• Free radio broadcasting for entertainment: Early radio was developed as a wireless extension of the telegraph and the telephone enabling point to point confidential communication in places where wires were impractical, for example between two ships at sea during battle. The development of radio broadcasting as a means of "instantaneous collective communications" was unexpected by early radio visionaries and almost accidental (Czitrom, 71). Only over the course of the decade after WWI does radio broadcasting achieve the media primacy it was to enjoy before the advent of television in the late 1940s. Early on in the history of radio broadcasting, it was widely recognized that the unprecedented communicative power of live radio broadcasting required strict restraints upon expression: otherwise, what was to protect a child or adolescent, innocently scanning the airwaves in the privacy of their own home, from being subjected to the errant tongue of a radio announcer. In order to understand the highly circumscribed interplay between censorship and expression in this new medium, it is important to grasp those elements of the American institutionalization of radio broadcasting that assured its essentially commercial telos: a) An advertising agency receives money from a company (hereafter a "sponsor") develops or buys radio entertainment (hereafter the "show") as a vehicle for its advertisement, and rents broadcast time from a station or group of stations (hereafter the "network"). b) The broadcast station licenses a particular bandwidth for transmission from the Federal Communications Commission (FCC), which acts as a traffic cop preventing different transmittors from deforming each other's signals, but is quite explicitly discouraged from any active supervisory control over the content broadcast over the radio system. c) The radio audience is structured as a group of autonomous consumers who may choose to buy a high tech radio receiver and can then turn the dial to whatever free "show" he or she enjoys. Notice how the power to speak and censor have been distributed within this system. Because the advertising agency assumes the crucial medial role of translating the money of the sponsor into the ads and shows it pays the stations to broadcast, advertising's speech is primary and formative. In keeping with a longstanding American suspicion of the state, the federal government has no direct speech on radio. However, through the FCC, it guards the airwaves for those who can make money from them, and holds an ultimate power (by refusing to renew a radio license) to silence those who might use the new medium in ways it deems subversive or distasteful. The new mass audience of radio broadcasting has no powers of speech on radio; it only has the limited and negative option not to buy a radio or not to tune in a station. In such a system, censorship is indirect, and usually invisible: it consists of all those ideas and messages the controllers of the commercial medium declines to speak, or allow be spoken, because they might offend the taste or sour the mood of a significant number of the consuming audience. In the "golden age" of the 30s and 40s, the commercial structure of network radio allows it to be a self-censoring vehicle for building consent. The commercial telos of the broadcast networks helps explain the odd phenomena Europeans noticed much later in the 1960s, during the Vietnam War. While the European press carried highly critical accounts of American conduct in the war, US television reported the war in Vietnam in terms so close to the official government line, that independent observers noted this paradox: the representation of the war by a "free" press was the functional equivalent of censorship.
• The decay of network television: The successful transfer of the radio network system to television in the late 1940s worked to consolidate the new medium of television as the dominant provider of entertainment and news. More than ever a large segment of public culture--from political critique to experiemental film--found itself outside of the nation's dominant medium, television. Many decried the monopoly controlled by the three networks in the US; Newton Minow, Kennedy's appointment as chairman of the FCC sought to shake things up by characterizing television as a "vast wasteland." Foundations (like the Ford Foundation) sought to raise the quality of television by supporting the development of educational television and publicly funded televsion. But from the vantage point of the present, we can see that a succession of mutations in television technology and practice have eroded central control enjoyed thoughout the 1950s and 1960s by the networks:

1. The use by the network of video tape to record and replay television shows (begun in 195?) took television away from the live "real time" performance characteristic of theater and live radio toward becoming a medium that could be archived, replayed, and moved to commercial tape.
2. The remote control, by allowing viewers to channel surf, mute and zap, won them greater control over shows, ads and the network programing strategies.
3. The VCR offered further freedom from the network schedule, but more importantly, it also opened the home to a broad spectrum of film entertainment, much of it too violent or sexually explicit to be broadcast on network television.
4. The coming of cable produced a de facto loosening of television censorship: it allows programming for narrower segments of the audience (e.g. teens were taught to say "I want my MTV"); although the initial bribe--free television programming in exchange for a commercially mediated, ad interleaved entertainment--was withdrawn for increasing numbers of viewers, the simple fact that one pays for cable TV, transfers additional responsibility for that act of consumption from the network programmer to the viewer.
5. Yet, in the age of the proliferation of sets, and increasingly lax supervision of children by their parents, those who would censor have won a new ratings systems for television, to be used in tandem with a V-chip placed in every set. This new censorship of television screen, by labelling content and opening the set to a parent's remote control of viewing, functions as a filter of content. It is America's latest compromise between the central commercial imperative (maximum access by the media industries to American homes; maximum choice by consumers), and American values: the privileging of freedom of speech and a viseral distaste for regimes of censorship.

Factors disrupting and reforming modern systems of media censorship: From the critical elevation of the novel to the introduction of the V-chip, these systems of censorship unfold within entertainment systems sustained by the market and in the absence of official government censorship. If 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, ironically, these same factors--the absence of direct censorship, the centrailty of the market, and technological innovation--have instigated new techniques for censorsing mass entertainment.

• Founding of the WWW - 1994
• Communications Decency Act 1996
• Overturning of CDA - 1997
• Pamela Anderson/ Tommy Lee Curtis porn video --1998
• Starr Report is released on the Web by the House of Representatives -- Fall, 1998
• Civil suit in Portland Oregon leads to $109 million dollar fine for the "Nuremberg Files" web site leading to its removal from the Web

Each of the components of this web essay offers ways to understand why the arrival of the World Wide Web has brought speech and censorship into collision. Like the onset of print in the early modern period, the Web has changed the medium within which knowledge work is conducted and stimulated an expansion of the numbers and varieties of the centers of production. These changes in the medium and quantity of communication have changed the quality of media culture and disrupted the ratio of speech and censorship within the prevailing media ecology. At the same time, the arrival of the Web has expanded the powers of speech and reinvigorated the ideals of public culture. Perhaps, as some commentators have written, the Web will make good on the largely unrealized promises made earlier in the 20th century on behalf of radio and television, by enabling unprecedented political participation by the average citizen. But the very features that cause Web evangelists and libertarians to enthuse--the power of one producer to broadcast to millions of linked computers without the supervision of any single agency of control--have caused others to call for new systems of censorship. To understand why one must take note of two features of the Web.

• The Web traces its origins to the first Internet, ARPAnet--a network that was radically centerless by design: the Internet is not one network, but a network of networks "designed to be a decentralized, self-maintaining series of rudundant links between computers and computer networks, capable of rapidly transmitting communications without direct human involvement or control." (ACLS v Reno; District Apellate Court Panel Decision, June 12, 1996, "Findings of Fact; "the nature of Cyberspace") This structure was devised during the Cold War to insure survivability in case of nuclear attack. But this also means that communication over the the Internet (unlike the Postal Service or Telecommunications) is not supervised by any one government agency, company, or group of companies. It is decentralized by design, has become thoroughly international, and moves information at speeds that make control or supervision from a single site exceedingly difficult to envision. For this reason the Cold War may have spawned a distributed communications network so resistant to central control that there is no real way to stop a determined and financially independent "speaker" of pornography or hate speech. Now the absence of any central node of control has this unintended consequence: WWW may be censorship-proof. And this especially troubles those that want to inflect this new digital medium so that it reflects--in its structure and contents--even the most minimal common social values.
• The Internet comes to the Market: As long as the Internet was a way for military labs, universities, and then corporations to share their advanced research, it operated free of the market and its imperatives. But once an easy to use graphical interface was invented (with HTML and the protocols it requires), the WWW has become the focal point for frenetic commercial activity. One of the first commercial uses of the Web was the sale of pornography. There were several factors that made the WWW has become especially accommodating venue for porn: 1) by drawing upon two existing networks--the phone network and the credit card network--Web based pornography could allow private "viewing" by a relatively anonymous consumer; 2) because the Web is a digital network, it can translate analogue forms--still photographs, video, and audio--onto Web sites, and with the improvement in browser and server software, it is doing so at increasing powers of resolution. 3) At the same time that the market has made the Internet rich in resources, the international scope of the Web has freed it from most of the contraints of local and national law. The way the Web has unsettled the boundary between private and public life, and challenged the role of traditional media gate keepers, is apparent in two recent episodes. When the Starr Report was posted to the Web, it offered an uncensored account of the most intimate details of President Clinton's affair with Monica Lowinski. The fact that it was "already out there" on the Web meant that many newspapers around the country felt impelled to desist from the sort of censorship they might otherwise have practiced. Secondly, when a private video tape, made by Pamela Anderson (of Bay Watch) and Tommy Lee Curtis (of Men in Black) to record their sex acts on one Halloween night, became posted on innumerable porn web sites for viewing by millions.

Worries about the access by minors to Web porn, and unwonted solicitation in chat rooms and through email, led Congress to pass the Communications Decency Act (Title V of the Telecommunications Act of 1996). It was a failed first attempt to place limitations upon this powerful new medium. There were three provisions of this bill that became the focus of the successful appeal by the ACLU to the United States District Count for the Eastern District of Pennsylvania, and subsequently, the Supreme Court. One section of the bill provides in part that any person who, "by means of a telecommunications device" "knowingly...makes, creates or solicits" and "initiates the transmission" of "any comment, request, suggestion, proposal, image or other commuication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age," "shall be criminally fined or imprisoned." Note: this law does not just punish what is already illegal--obscenity and child pornography. It also punishes "indecent" communication, a much vaguer and broader category of speech. In order to define "indecent" speech, a second section of the bill defines the patently offensive as "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as mearused by contemporary community standards, sexual or excretory activities or organs,..." Finally, the law makes it a crime for anyone to "knowingly permit any telecommunications facility under [his or her] control to be used for any activity prohibited" in the first two of these sections. Among the many objections voiced to the CDA, three arguments were most decisive: 1) By extending the legal framework traditionally applied to radio and television, instead of the legal precedents developed for print publication or telephone communcations, Congress was miscontruing the nature and potential of the Internet. 2) By seeking to criminalize expression that was "indecent" or "patently offensive" they were passing an unconstitutionally vague restriction of freedom of expression; it could, for example, make non-obscene but "explicit" speakers about sex--artists, scientists, providers of information about AIDs--libel to criminal prosecution. The only way to protect oneself from a statute that is vague and overbroad is through silence. 3) Finally, by making most of the parties to Internet communication--from content providers to internet prividers to a host of private and public institutions--legally libel for speech that someone under the age of 18 might "hear," the Communications Decency Act underestimates the difficulty of controlling access and use of the network from the point of production or distribution. Therefore, such legislation would have a chilling effect upon all speech on the Internet. In the most quoted sentences of the Philadelphia Federal Appeals Court judgment, the Court applied the First Amendment valorization of freedom of speech as a exchange that is valuable because it is openended: "Cutting through the acronyms and argot that littered the hearing testimony, the Internet may failry be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrustion." (http://www.eff.org/pub/Censorship/Internet_censorship_bill.../960612_aclu_v_reno_decision.htm)

The overturning of the CDA was widely viewed at a victory for freedom of speech on the Internet. But troubling implications of the Internet's amplification of the power of speech is suggested by two other episodes. An anti-abortion group developed a site entitled the Nurenberg Files. The web site title, by referring to the site of post WWII war crimes trials in the German city of Nurenberg, suggests what the site makes explicit: the analogy between abortionists and Nazi war crimes. The site is laced with vivid photographs of aborted fetuses. But its most inflammatory element is a list of doctors, nurses and other health professionals working in abortion clinics around the country--complete with names, addresses, phone numbers and photographs--with those who have been murdered crossed out, those who have been injured, with typeface in red. Is this free speech or a hit list? A court found that the site had qualities of a hit list and was inciting its viewers to violence. Therefore a legal injunction or restraining order was won against this site and it was closed down. (check) How can one stop the use of internet speech, and the forging of internet communities, around acts and causes most responsible members of the body politic would find deplorable? In the wake of Buford's attack upon a Los Angeles Jewish community, an act he described as a "wake up call to Americans to start killing Jews" (check), a New York Times article focused upon the problem of stopping acts of domestic terror by a "lone wolf" who, because he acts alone, is practically immune from advanced detection (NYTimes, 8/16/99). In considering the origins of this relatively new form of terrorism, the article argued that the speech of hate groups receives technological amplification from the Internet. Here the most celebrated qualities of the Web--its ability to forge community through participation by many; the ability to enable affiliation around a salient issue across great distances--becomes the source of danger to the society as a whole. "Terrorism experts point out that advanced in technology, in particular the Internet, have fueled the activities of loners, making it easy for them to communicate and gain access to extremist philosophers. 'It puts them all in the loop,' said Rabbi Marvin Hier, Dean and Founder of the Simon Wiesenthal Center in Los Angeles, which monitors 2,100 hate sites on the Web. 'They feel linked up. They're not alone. It makes them part of a greater thing. it's ther ticket to the world.'"

Because some form of censorship and constraints enable speech, it is not a question of whether but how we will find ways to "censor" Internet speech. Because the Web is becoming an increasingly commercial medium, the question of copyright and fair use looms large. Economic censorship--censorship on the grounds of copyright--seems to be emerging as the most formidable form of censorship.