CENSORSHIP AND THE REGULATION OF EXPRESSION‘‘censorship’’ would require a mapping of the
shifting boundaries around which this legitimacy
is withheld or conferred. For example, punish-
ment for blasphemy was once considered legiti-
mate, whereas penalties for inciting hatred against
ethnic groups may not be thought of as ‘‘censor-
ship’’ in the future. Second, in areas where the
legitimacy of a restriction is under dispute, those
who oppose the restriction tend to label it as
censorship, whereas those who support the restric-
tion attempt to distance themselves from the term.
This core understanding of the term—as ille-
gitimate government action—leads to a number of
consequences, two of which will be mentioned
here. First, discussions of the legitimate control of
expression are typically framed as battles between
censorship, on the one hand, and Free speech, on
the other: Free speech is the absence of govern-
mental control. This framing of the communica-
tive needs of a democracy—codified in the First
Amendment—places a wholesome burden on gov-
ernments to justify regulatory action. On the other
hand, this framing excludes from discussion the
positive role that governments can (and do) play in
supporting these needs. It also excludes considera-
tion of the instances in which private concerns and
impersonal market forces can produce deleterious
effects; ones that exclude particular viewpoints
from the marketplace of ideas. The restrictions
placed by health maintenance organizations (HMOs)
upon what physicians can say to their patients (i.e.,
‘‘gag rules’’) are but one of countless areas in
which private institutions ‘‘censor’’ valuable speech.
Research is needed to uncover the role that
the rhetoric of ‘‘censorship’’ plays in maintaining
the conception of free speech as the absence of
government regulation. It is apparently with the
goal of disabling this entrenched dichotomy that
some theorists have used the term—e.g., ‘‘soft
censorship,’’ ‘‘de facto censorship’’ ‘‘private cen-
sorship’’—to refer to those private and imperson-
al forces that lead some forms of expression to be
systematically excluded from the marketplace of
ideas (e.g., Barbur 1996; cf. Post 1998). Barbur, for
example, argues that ‘‘monopoly is a polite word
for uniformity, which is a polite word for virtual
censorship—censorship not as a consequence of
political choices, but as a consequence of ineleastic
markets, imperfect competition, and economies
of scale.. .’’ (1996, pp. 137–138). Similarly, theorists
like Baker (1998) use the term ‘‘structural regula-
tion’’ to refer to government interventions de-
signed to increase viewpoint diversity in the public
forum. The goal of such rhetorical interventions is
to reframe the discussion of ‘‘free speech’’ in a way
that is meticulously sensitive to the threats of
government incursions on speech, yet, that at the
same time allow this discussion to incorporate
both the speech-restricting characteristics of pri-
vate action and the speech-expanding possibilities
of government.The second consequence of our core under-
standing of ‘‘censorship’’ is linked primarily to the
distaste the term evokes. This pejorative connota-
tion renders the term useful in singling out illegiti-
mate expressive restrictions, and as a persuasive
device in popular and legal debate. However, the
pejorative nature of the term also disables it as a
useful construct in discussions that aim to present
a balanced account of contemporary debates over
the control of expression. For example, to frame a
controversy concerning the legitimacy of restric-
tions on hate speech as a debate over whether such
speech should be censored is to ask, in effect,
whether the illegitimate suppression of hate speech
is or is not legitimate. This framing, though a
popular one, clearly biases the discussion toward
one side of the debate.In this entry we attempt to use less loaded
terms to describe the concerns that the term ‘‘cen-
sorship’’ evokes and the underlying controversies
in which the term is typically used. Corresponding-
ly, we strive to reserve the term ‘‘censorship’’ for
those uses in which it is integral to the viewpoint
being expressed.LEGAL PRINCIPLES GOVERNING THE
REGULATION OF EXPRESSION IN THE
UNITED STATESThe legal principles governing freedom of expres-
sion in the United States are based largely on
interpretations of the First Amendment to the
Constitution, whose ‘‘speech’’ and ‘‘press’’ clauses
are combined in the statement that ‘‘Congress
shall make no law... abridging the freedom of
speech, or of the press.’’ The amendment refers
only to actions taken by the U.S. Congress, and it
was not held to apply to laws made by the individu-
al states until 1925 (Gitlow v. New York, 2688 U.S.