This is my place.

There is a PBS video on the art of the nude. In it, they discuss a sad bit of censorship. An art teacher was fired because the library had a boxed collection of post-card sized illustrations of great artworks on hand for students and some 6th graders got to see them. Messed up her career. Two of the cards featured female nudes.

This is a kind of de jure censorship. Even though there’s no specific law against showing nude art to children, the definition of censorship only requires government action of some sort. Most people are receptive to censoring messages that involve tobacco, alcohol, violence, and hate from what children access at school but I think blocking artwork from the Louvre is going overboard, as is firing the instructor.

Alexander Kandinsky’s work, Nude Descending a Staircase, was denied admission to an exhibition. Not because it featured a nude or because it was the seminal work of the radical new school of abstract expressionism, but because she was descending a staircase. Proper female nudes in art do not descend staircases, they must be passive and not active.

This really isn’t censorship. It is generally a rule of law that anyone who owns a media outlet can control what goes out. It applies as much to Facebook or MeWe or YouTube or Twitter. If I own a venue and at that venue I put up a bulletin board for the use of my customers, I have the right to remove notices that I object to. However, there is an intermediate state.

Let us say that the government issues guidelines on what may or may not be expressed. The speech that falls plainly within the restrictions is de jure censorship. But guidelines are rarely explicit and almost never clear-cut. There will be grey areas. Intentional grey areas intended to discourage legal speech. Because of the blurry line between allowed and proscribed speech, private parties will often exercise far more restrictive self-censorship than is actually called for out of fear of legal entanglement. This is indirect censorship.

Benjamin Franklin, the first Postmaster General of the United States, was asked to censor the US mail. He refused.
In 1873, Congress passed the Comstock Act, named after Anthony Comstock, a devout Christian and head of the New York Society for the Suppression of Vice. The Comstock Act allowed warrantless searches of the mail, for obscene material, including contraceptives.

What do we call it when a college cancels a scheduled speaker out of the fear protesters will cause a ruckus? They are for the most part government entities. That is censorship by spinelessness. Censorship by heckler’s veto. The funny thing is that the first amendment was not intended to protect uncontroversial speech. The speech that everyone is cool with needs no protection. Colleges, the supposed liberal bastions of society, have conveniently forgotten this.

There is also censorship by proxy. De facto censorship. The government says that if a communication outlet does not limit speech, it will move to do so officially. To preempt this, a private industry group is set up with powers to prevent the distribution of unwanted speech – often with the “fig leaf” that you can still try to distribute the material but the available options make it impossible to reach a wide audience. Studios used their considerable powers to coerce independent theaters into cooperating. The government gets to say that it is not involved in censorship while the industry claims it is just being “responsible.” Obviously, a violation of anti-trust laws but the government will let it slide.

Just one example is the Hayes Code (Motion Picture Production Code) that reigned over major movie studios from 1932 to 1968.

• No picture shall be produced which will lower the moral standards of those who see it. Hence the sympathy of the audience shall never be thrown to the side of crime, wrongdoing, evil, or sin.
• Correct standards of life, subject only to the requirements of drama and entertainment, shall be presented.
• Law-divine, natural, or human-shall not be ridiculed, nor shall sympathy be created for its violation

Similarly, we had the Comics Code Authority, The National Association of Broadcaster’s code, and others, all created because of the threat of formal government censorship. At one time this was almost total but in recent years such entities have lost their control over the medium. Broadcast television is still constrained by time and manner considerations that are imposed by the FCC and those shackles are quite tight as seen by the response to a certain Superbowl wardrobe malfunction. (It is astonishing what anger seeing 9/16th of a second of a fuzzy nipple can wreak.) OTOH, since cable TV does not feel those restraints, it isn’t considered censorship.

Censorship by government influence rather than by direct government involvement is still censorship. I consider it de facto censorship. Censorship in fact, even if not in law.

---

When we talk about censorship, the central issue is the concept of prior restraint. According to Merriam-Webster, the definition of prior restraint is “governmental prohibition imposed on expression before the expression actually takes place.” For most cases, prior restraint is prohibited by various court rulings. This does not make speech totally uncontrolled. If you say something and that something can later be shown to have caused harm, you can be held civilly responsible but you can’t be stopped from saying it to begin with. Liable and slander are the two obvious examples but there are others.

Incitement to riot, “fighting words,” shouting fire in a crowded theater, child porn, and sedition are generally considered exceptions to the prior restraint rule. Most people would consider this reasonable. But the definition of sedition was once much broader than it is today. Obscenity and adult pornography, alcohol and tobacco advertising, advocacy of fringe opinions, advertising for legal services, and opposition to war, have all been held valid exceptions to the “prior restraint rule” and unprotected by the first amendment at one time or another. The idea is always that such speech is inherently harmful to society and cannot be allowed.

• 

• 

• 

---

I remember the 60s,70s, and 80s as being the heyday of first amendment rights activism. The argument was that content didn’t matter. What mattered was if anyone was engaged in activity that was factually harmful in the production. That is a standard that has held in the Supreme Court so far but we’ll have to wait to see how the current court will handle it.

But times change. What we would censor today is not what we would censor when I was a kid. Given the nature of the internet, one would think that censoring it is nearly impossible. Given what we see in China, it is obvious that censoring the internet is all too easy. I suspect that the only reason it doesn’t happen is that no single body of opinion can get a large enough base to enforce their will. As we’ve seen in the past, the first amendment is helpless against de facto censorship and easily bypassed for de jure censorship if popular support for the speech is weak.

Public colleges and public schools are also part of the government and a huge amount of censorship goes on there. Despite the first amendment, censorship is all around us.

Or how about this: Arkansas law § 5-68-204

(c)  It is unlawful for any 
(1)  Person, club, camp, corporation, partnership, association, or organization to advocate, demonstrate, or promote nudism; or
   (2)  Person to rent, lease, or otherwise permit his or her land, premises, or buildings to be used for the purpose of advocating, demonstrating, or promoting nudism.
(d)  Any person, club, camp, corporation, partnership, association, or organization violating any provision of this section is guilty of a Class A misdemeanor for each offense.

I bet you are not surprised I managed to swing this around to one of my favorite topics!

In the state of Arkansas, you cannot legally advocate for nudism, let alone participate in social nudity. I suppose one could intentionally violate this and try to get busted. After years of struggle and tens of thousands of dollars, you might get it before the Supreme Court and get the law overturned (or not.) Such an effort is so onerous that unless you both have the ACLU on your side and are financially secure yourself, you just pay the fine. Even the major national and international nudist organizations cannot afford to do so.

So it hangs over one’s head as a legal sword of Damocles should some irate bureaucrat or cop decide to cut that thread. It could as well be advocacy of communism or freeing slaves or resisting a war or LGBTQ rights. Or it could be the credulous nonsense pouted by Q Anon or the anti-vaccination crowd. And all of those things have been illegal sometime and somewhere.

If we are not careful, we could take a swing and end up formally censoring anime, as our friends in Australia have done.