Courts and censorship law
Courts play a pivotal role in the interpretation and enforcement of censorship law, particularly in the context of the First Amendment, which protects freedoms of speech and press. In the United States, the judicial system comprises multiple levels, including federal and state courts, which handle cases involving allegations of unconstitutional censorship versus lawful governmental actions. Judicial review, established through landmark cases like Marbury v. Madison, empowers courts to assess the constitutionality of statutes and regulations, a function that can sometimes lead to perceptions of judges creating rather than interpreting law.
Disputes surrounding censorship often require courts to carefully balance First Amendment rights against competing governmental interests, with critics arguing that such balancing can lead to potential censorship. Additionally, courts employ strict scrutiny when evaluating laws that restrict First Amendment rights, ensuring that any governmental action must demonstrate a compelling interest. One of the most significant powers courts hold in censorship cases is the ability to impose prior restraint, which is seldom granted due to its potential threat to free speech.
Censorship cases frequently attract public attention and scrutiny, as they often involve contentious issues like flag-burning or hate speech. Decisions made in these cases can test public confidence in the judicial system, especially when upholding protections for speech that some may find offensive or harmful. Overall, the interaction between courts and censorship law highlights the complex dynamics of protecting constitutional rights while addressing societal concerns.
Courts and censorship law
Definition: Federal and state trial and appellate courts decide numerous cases involving censorship issues
Significance: In Great Britain and the United States judicial review has played a crucial role in defining censorship laws
The courts have played a complicated and often misunderstood role in deciding questions of censorship. They often decide whether particular regulations, statutes, or executive decisions constitute unconstitutional censorship or lawful exercises of governmental authority. The American court system encompasses several distinct judicial institutions. There are fifty-one separate court systems—one federal system and fifty state systems. Generally, civil and criminal cases begin in a trial court (known as a district court in the federal system); many cases end there. If appealed, cases proceed through one and possibly two appellate courts. In the federal system, there are courts of appeal, followed by the U.S. Supreme Court. In most states, there are courts of appeal and a state supreme court, followed by review in the U.S. Supreme Court. Cumbersome at first glance, these multiple levels of appeal ensure that decisions are subject to critical review.
Judicial Review Doctrine
The courts derive their authority to judge the constitutionality of statutes from the doctrine of judicial review, which is nowhere expressly mentioned in the U.S. Constitution. It was not until John Marshall’s opinion in Marbury v. Madison that the Court granted itself the power to strike down statutes found to conflict with the Constitution. This power, which is often misunderstood by members of the public who believe that a democracy is controlled by majority vote, has since been exercised by courts at every level. The power of judicial review has placed responsibility on all judges, from municipal courts to the U.S. Supreme Court, to entertain constitutional challenges to every manner of statute, regulation, and governmental action.
In discharging this duty courts are often accused of making law rather than interpreting it. This distinction ignores the fact that the act of interpretation involves deciding whether a statute applies. The court thus “makes” law for those found liable and “makes” exceptions for those found not liable. It is also a matter of personal interpretation when one decides whether or not a court “makes” or “interprets” law when it decides a case based on judicial review. When a court decides that a state statute prohibiting the burning of a cross on private property, if done as an act of political protest, is an unconstitutional violation of freedom of speech, for example, whether such an act is interpretation or lawmaking typically depends what an observer thinks of the result.
Critics of the judicial system accuse judges of pursuing ideological agendas, under which they work backward from finish to start, instead of applying neutral principles to the facts and finding the appropriate result. It is noteworthy that Supreme Court justices from both ends of the liberal-to-conservative spectrum have been accused of being “result-oriented.”
That judges have previously considered the contours of great constitutional questions before actual cases are presented to them for decision should come as no surprise. Indeed, at least at the appellate level, judges are chosen for the depth of their scholarship and study of the law. Nominees to the U.S. Supreme Court have been criticized (or even disbelieved) when they have testified at confirmation hearings that they had not seriously considered controversial constitutional and public policy issues. The legitimacy of judicial opinions does not turn on whether judges are result-oriented or not. It turns on whether they exhibit a principled rationale, based on well-established precedents and a fair and accurate summary of the facts.
A judge with a long history of decisions upholding (or for that matter) rejecting First Amendment challenges to governmental regulations, who decides new cases in a principled manner, is less vulnerable to criticism than a judge who disclaims any result orientation, but decides new cases by misstating the facts or relying on inapplicable precedents or ones that have been overruled.
Judicial Balancing
Proponents of censorship often call on courts to balance First Amendment rights against other competing interests. Opponents of censorship respond that the Founders did all the balancing necessary when they wrote the Bill of Rights and that inevitably “balancing” is a code word for “censorship” that undermines cherished First Amendment rights, because virtually any act of government can be justified on the basis of any number of legitimate or valuable purposes and thereby trump the First Amendment. Civil libertarians argue that the identification of a legitimate governmental interest is only the beginning, not the end, of the inquiry in First Amendment cases.
Independent Judicial Review
Deciding First Amendment issues brings into play special judicial rules given the preferred position of individual rights in the constitutional system. In conventional cases, not involving constitutional rights, courts tend to defer to the presumed expertise of government officials and agencies. Likewise, appellate courts defer to the factual findings of trial courts who have heard the evidence and observed the witnesses.
When freedom of speech or the press or other rights protected by the Constitution are at stake, however, these general rules are replaced by the doctrine of independent review. To guarantee maximum protection for constitutional rights, the courts carefully scrutinize governmental actions without giving them the benefit of the doubt. Appellate courts independently examine the court record to satisfy themselves on the facts involved in constitutional challenges, without blindly accepting whatever the trial court has found.
Another safeguard used by the courts in censorship (and other constitutional) cases, is to apply strict scrutiny in judging whether the government has demonstrated a compelling interest sufficient to justify a restriction on protected speech. Normal legislation involving economic or business regulation is judged under the lesser rational basis standard—such laws raise no constitutional problems so long as they are reasonable. Few laws will run afoul of the minimal rational basis standard. Laws that on their face or by application purport to restrict First Amendment rights, however, are strictly scrutinized to detect whether any censorial motivation was behind the legislation, in which case the legislation is vulnerable to invalidation on constitutional grounds. In many cases, the difference between a successful and unsuccessful First Amendment challenge will depend entirely on which standard of scrutiny is applied.
Prior Restraint
In censorship cases, the courts’ most draconian power is prior restraint—enjoining speech even before it is uttered. Many constitutional scholars believe that prior restraint is the single most ominous threat to freedom of speech, and that prior restraint in England prompted the passage of the First Amendment. Courts rarely if ever grant a prior restraint of speech even in the face of urgent claims by the government that unless speech is banned prior to publication serious damage to the national security will result. Such cases demand that judges display keen fidelity to the letter and spirit of the Constitution and to resist the temptation to accept the dreadful predictions of government lawyers who are seeking to enjoin speech before it is published.
Few areas of the law place the courts under greater public scrutiny than censorship cases. Aside from highly visible criminal prosecutions or notorious political scandals, the public rarely takes notice of most trials or appeals, unless they involve controversial battles over free speech, free press, or the separation of church and state. Censorship cases have involved flag-burning, cross-burning, pornography, and Nazis marching in Skokie, Illinois; in such cases, the courts’ decisions are not going to please everyone and many are displeased when the courts uphold First Amendment protections. Public confidence in the judicial system is severely tested when the courts are called on to protect hateful or offensive speech in the face of majority condemnation.
Bibliography
Cleary, Edward J. Beyond the Burning Cross. New York: Random, 1994. Print.
Hall, Kermit, and James W. Ely. The Oxford Guide to United States Supreme Court Decisions. 2nd ed. New York: Oxford UP, 2014. Print.
Hall, Matthew E. K. The Nature of Supreme Court Power. New York: Cambridge UP, 2011. Print.
Hixson, Richard. Mass Media and the Constitution: An Encyclopedia of Supreme Court Decisions. New York: Garland, 1989. Print.
Presser, Stephen B. Recapturing the Constitution. Washington: Regnery, 1994. Print.
Savage, David G. Turning Right: The Making of the Rehnquist Supreme Court. New York: Wiley, 1992. Print.
Smolla, Rodney A. Free Speech in an Open Society. New York: Knopf, 1992. Print.