Fighting for Free Expression: Censoring Others Leads to Others Censoring You

The ACLU fights for artistic freedom because we believe that the First Amendment is based on the belief that in a free and democratic society, individuals must be free to decide for themselves what to read, write, paint, draw, see and hear.

If we are disturbed by images of violence or sex, we can change the channel, turn off the TV, and decline to go to certain movies or museum exhibits. Once you allow for the censorship of someone else, you allow for others to censor you, or something you like. Censorship is like poison gas: a powerful weapon that can harm you when the wind shifts. Freedom of expression for ourselves requires freedom of expression for others. It is at the very heart of our democracy.

Since 1933 and before, the ACLU has been a staunch defender of the right of artists to express their views. In one of the organization’s most famous cases, the ACLU defended James Joyce’s epic novel, Ulysses, after U.S. Customs officials seized copies of it at ports of entry, calling it obscenity “of the rottenest and vilest character.” After a decade-long struggle, it was ruled thatUlysses was not obscene.

The ACLU has intervened in hundreds of cases in which works that most now consider classics or works or art were censored. Censored materials include Steinbeck’s The Grapes of Wrath, Faulkner’s As I Lay Dying, Styron’s Sophie’s Choice,the Harrry Potter series, poems by Allen Ginsberg, Judy Blume, and countless others.

 Download our poster of Books That Never Should Have Been Censored.

What is censorship? 
Censorship is the suppression of words, images, or ideas that are offensive and occurs whenever some people succeed in imposing their personal political or moral values on others. Censorship can be carried out by the government as well as private pressure groups. Censorship by the government is unconstitutional.

What does artistic freedom include?
The Supreme Court has interpreted the First Amendment’s protection of artistic expression very broadly. It extends not only to books, theatrical works and paintings, but also to posters, television, music videos and comic books–whatever the human creative impulse produces.

Two fundamental principles come into play whenever a court must decide a case involving freedom of expression. The first is “content-neutrality”–the government cannot limit expression just because any listener, or even the majority of a community, is offended by its content. This means tolerating some works that we might find offensive, insulting, outrageous, or just plain bad.

The second principle is that expression may be restricted only if it will clearly cause direct and imminent harm to an important societal interest. The classic example is falsely shouting fire in a crowded theater and causing a stampede. Even then, the speech may be silenced or punished only if there is no other way to avert the harm.

Censorship and the ACLU
Freedom of speech is protected in the First Amendment of the Bill of Rights and is guaranteed to all Americans. The ACLU has fought art censorship since its founding, both nationwide and here in San Diego. Below are some examples of the ACLU’s local efforts to promote artistic freedom in the San Diego area:

– Censorship of “Split Second”: Rather than allow a community college professor and his students to put on a student-written play in the summer of 1986, the San Diego Community College District cancelled their drama class. The ACLU in San Diego sued on their behalf. The play “Split Second” featured a black New York City police officer who, antagonized by a flurry of racist remarks, shoots a white suspect and covers it up. The College District argued the censorship was permissible because the atmosphere in San Diego was so volatile and potentially violent due to the Sagon Penn criminal trial that performing the play was the equivalent of yelling “fire” in a crowded theater. A Superior Court judge agreed. But, on appeal, the California Court of Appeal reversed the judgment of the trial court in 1990, noting that the “politically sensitive” nature of the play’s subject matter is not a constitutionally appropriate reason for censorship. The case is still widely cited to protect the dramatic arts from government censorship. DiBona v. Matthews, 220 CA3d 1329 (1990).

– Censorship of “San Diego Donkey Cart”: National City artist David Avalos, now a professor at CSU San Marcos, obtained a permit to display his artwork on the grounds of the U.S. courthouse in San Diego in January 1986. A federal district court judge ordered the piece “San Diego Donkey Cart” removed. The judge said he feared that a “kook” could hide a bomb in the piece. A witness said the judge’s reason was that the artwork was critical of the government–which it was. The painted wood construction contrasted the tourist image of a traditional Mexican donkey cart with the gritty realities of modern Mexico and the even starker reality of a U.S. Border Patrol agent frisking an undocumented immigrant. The ACLU sued on behalf of Mr. Avalos. On March 15, 1988, a federal court from another district ruled that the General Services Administration’s revocation of the permit was unlawful. With respect to the judge, however, the case was dismissed, and the ACLU’s appeals were denied. Avalos v. General Services Administration (1988).

– Criminal Charges Threatened: In 1994, the San Diego Police Department threatened San Diego art gallery owners Cathee Schultz and J.D. Higgins with arrest if they did not remove certain art pieces from the gallery’s front display window. The art pieces at issue consisted of six large-scale photographic silk-screens of various subjects, including a nude woman in a reclining position. In response to the request by the SDPD, Schultz and Higgins placed pieces of cardboard reading “Censored” over the subject’s nipples and groin area. Charles Gatewood, the artist of the pieces at issue, contacted the ACLU, which then informed the SDPD of the artist’s and the owner’s First Amendment right to display such material. When the gallery subsequently removed the cardboard pieces censoring the artwork, the SDPD took no further action.