IV.

Censorship in the Modern World

The 18th century marks the beginning of the modern period, with its emphasis on toleration and liberty—a beginning that reflects the influence of the Age of Enlightenment, the American War of Independence, and the French Revolution. Although the new spirit of liberty was first felt in the area of religious belief, it rapidly affected political life, science, and literature. Britain, the United States, and France set the pattern and the pace. The Declaration of Independence (1776), the US Constitution (1787) with its Bill of Rights (1789-1791), and the French Declaration of the Rights of Man and of the Citizen (1789) became models for the modern world. In Britain Roman Catholics were freed of all disabilities in 1829; Jews achieved the same freedom in 1858.

A.

Religious Toleration

In modern democratic countries, certain basic constitutional principles are generally accepted: a person’s religious beliefs and forms of worship are matters of strictly private conscience, into which no government act or official may intrude; no religious requirements may be stipulated for any public office or benefit; and the state and religion are independent of each other. Although these principles do not resolve all problems, and perplexing questions must be faced continually, the principles have established peaceful relations between the government and religious systems in truly democratic societies. The situation was quite different in Communist countries such as the former Union of Soviet Socialist Republics (USSR), where religion was not at all, or only grudgingly, recognized, and atheism was the established ideology. Another exception is the kind of theocracy established in Iran after the 1979 revolution with the institution of an Islamic republic.

B.

Government Censorship

In England religious conflict had bred general intolerance, which resulted in censorship that embraced political as well as religious expression. At a time when religion dominated society, every aspect of life was necessarily subject to official control. In 1662, for instance, a licensing act created a surveyor of the press who had power to investigate and suppress unauthorized publications. The Toleration Act and the Bill of Rights in 1689 dealt with important personal liberties but said nothing about freedom from censorship. To publish an unfavourable opinion of the government was still a “seditious libel”. From the start of the 18th century, however, English newspapers became more numerous, books on a greater variety of subjects were published, and arbitrary censorship was slowly reduced. Freedom of the press came about gradually as a result of judicial decisions and popular opposition to political oppression.

Except for a brief period in France after the Revolution of 1789, political censorship continued to flourish in continental Europe until the rise of republican governments in the mid-19th century. In the 1930s a new wave of political censorship swept Europe, especially in the totalitarian regimes of Germany, Italy, and Spain. Since the end of World War II, however, political censorship has diminished in Western nations.

State censorship remained severe in the former USSR and in other countries where political opposition is suppressed by permitting the existence of only one party. One-party nations determine directly the ideas and information to be published, circulated, and taught. When publishers, authors, or broadcasters are adjudged to have trespassed the political or moral boundaries set by law or administrative edict, they may be arbitrarily punished by fines, imprisonment, confiscation of their publication, prohibition of future publications, or closure of the medium of communication.

Rating countries on a scale ranging from 1 (most free) to 15 (least free), a survey published by Freedom House in the late 1980s disclosed that 60 countries comprising about 2 billion people enjoyed the highest degrees of freedom (1-5). In these countries—concentrated in North America and Western Europe but also including Japan, Australia, and New Zealand—individuals generally had the right to bring about peaceful changes in government, enjoyed freedom of speech and the press, and had free access to other mass communications. Another 39 countries with about 1 billion people received ratings of between 6 and 10, while 68 countries with 2.1 billion people had forms of government that denied citizens most political and civil rights.

Much attention was focused on censorship in the former USSR and other Communist countries. Exiles from the former USSR have disclosed the severe persecution to which they were subjected. Among such exiles were literary personalities and scientists, such as Aleksandr I. Solzhenitsyn, who was awarded the Nobel Prize for Literature in 1970, and Andrey D. Sakharov, who won the Nobel Peace Prize in 1975. World recognition and acclaim did not prevent the Soviet government from attempting to suppress their work and persecute them.

By the late 1980s, however, the USSR under President Mikhail Gorbachev had relaxed government censorship of the media as part of a more general reform movement, and other countries of the Eastern bloc were also affected. The increase in freedom soon led to the overthrow of several Communist governments by long-suppressed dissident forces.

The Communist countries have not been alone in imposing control over thought and expression in modern times. In the mid-1970s India imposed strict censorship as part of an alleged state of emergency, while Argentina virtually suspended the importation of all foreign publications. Even in democratic France, the government started criminal proceedings in 1980 against the newspaper Le Monde for publishing five articles in the preceding three years that allegedly cast discredit on French courts.

In the United States the 1st Amendment has been interpreted as preventing the restraint of publication except in exceptional cases. In a famous case, called the Pentagon Papers (1971), the Supreme Court ruled that a heavy presumption lay on a state to justify interfering with the press unless the government could prove that disclosure would cause “grave and irreparable injury to the public interest”.

In Britain, there is no written constitution that provides safeguards against censorship. In practice, this means that legislation can make major inroads in curtailing a freedom that cannot be reviewed by the courts. Such legislation will override any common law protections of civil liberties.

C.

The Rule Against Prior Restraint in English Law

Sir William Blackstone, an important 18th-century legal commentator on English law, argued that the freedom of the press depended on the absence of any previous restraint on the publication of books or newspapers. This rule against prior restraint thus requires that although the press can be restricted by law, they ought not to be subject to restrictions that prevent them publishing in the first place. The rule is explained by the famous phrase “publish and be damned”.

Historically, freedom of the press in England suffered under the rule of Oliver Cromwell in the 17th century, when he established a licensing system for both books and newspapers. Censorship was invoked where written material was considered “contrary to good life or manners”. This system of licensing was finally abolished in 1695 after a series of scandals relating to its operation.

In Britain, D-Notices may be invoked to restrict the publication of information relating to matters of national security. Such notices alert the press to any security-sensitive events that may be happening, but request that the information remains unpublished.

In the latter half of the 20th century, concerns regarding prior restraint focused on a series of cases where the British government was successful in preventing or delaying publication of information in the press. These decisions have to be read in the light of the European Convention on Human Rights, Article 10(1), which reads: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.”

The so-called Spycatcher case of the 1980s concerned the question of the availability of an injunction to restrain publication of information by the press and is therefore an important case with regard to the significance of prior restraint. The litigation concerned a claim, brought by the British government in the civil courts, arising out of an alleged breach of confidence by Peter Wright, a former security service agent. Wright’s book, Spycatcher (1987), purported to contain significant information about his work while he had been a security service agent. He had first published the book in New South Wales, Australia, to defy the British government’s efforts against it. The government then sought to sue the Australian publishers, but this application failed. By this time there had been widespread publication of the book overseas and there was no actual threat to national security from newspaper coverage. Nevertheless, in Britain, the Guardian and the Observer newspapers published allegations made in the book, but were prevented from further publication by the grant of an injunction ending the main litigation (Spycatcher [No.1], 1987). In 1991 the European Court of Human Rights held that the interlocutory injunction upheld by the House of Lords in Spycatcher [No.1] was an infringement of Article 10 of the European Convention on Human Rights.

D.

Broadcasting Bans

Under provisions of the licence of the British Broadcasting Company (BBC) the home secretary has powers to prohibit the BBC from broadcasting any item or programme at any time. Furthermore, under recent legislation, commercial television companies are subject to similar constraints. The discretion of the home secretary is extremely wide and can only be challenged on the basis that the home secretary is acting unlawfully: the discretion is fettered by Article 10 of the European Convention on Human Rights.

E.

British Board of Film Classification

The British Board of Film Classification (BBFC) is a private body that was established by the film industry in 1912. It nevertheless has considerable power over the showing of films. The BBFC has developed a system of certification of films that provides guidance on the public acceptability of the film (see Film Censorship). Distributors pay a certification fee, and the Director of Public Prosecutions will not prosecute films that have been granted certificates. The Video Recordings Act 1984 also gives the BBFC statutory recognition as the regulator of licensing of videos charged with monitoring material that is “suitable for home viewing”.

For further material on censorship, see highlighted articles and Blasphemy; Contempt; Human Rights and Civil Liberties; Obscenity Laws; Official Secrets Act.