CENSORSHIP AND THE REGULATION OF EXPRESSIONGiven the different levels of protection afford-
ed by the First Amendment for different forms of
expression, the determination of which category
of speech, which kind of regulation, and which
form of media a given case will be deemed to
embody, is of critical importance. Levels of protec-
tion for different forms of speech have changed
over time and there is no reason to think that they
will not continue to do so. Movies were long
considered a form of crass entertainment, outside
of First Amendment protections, and birth con-
trol information was once classified as obscene. In
the not-distant future, the plethora of program-
ming opportunities on the Internet is likely to
result in Supreme Court challenges of the scarcity
principle upon which public-interest broadcast regu-
lations are based. Particularly in the area of new
media, the difficulties inherent in determining
how to categorize a particular speech situation
often leads the categorical approach to cede to an
approach in which the harms of competing out-
comes are less formally ‘‘balanced’’ against each
other. Projects for sociology might include exami-
nation of the social underpinnings of the origin of
these categories, of the application of these catego-
ries to different forms of speech, and of the
evidentiary criteria used to assess both the harms
of speech and the harms of regulation. For in-
stance, a near consensus has been reached in the
scientific community that media violence leads to
social aggression and violence (e.g., Donnerstein
and Smith 1997), whereas evidence of harms done
by ‘‘indecent’’ broadcasts is anecdotal. What then
are the social and political processes that lead one
and not the other to be regulated?
PUBLIC SPEECH, PRIVATE SPACESAs can be seen in the language of the First Amend-
ment, the central concern of the framers of the
Constitution was to protect the private realm from
domination by the state. The First Amendment
itself has little to say about the control that private
organizations exert over the expressive rights of
individuals, or the control that private media com-
panies exert over the communication of public
issues. Examples of private-domain controversies
include disputes over the ‘‘gag rules’’ that prohibit
physicians from discussing alternate, more expen-
sive treatments; corporate contracts that prevent
employees from publicizing questionable employ-
er practices; and control over the correspondence
that employees send over company e-mail systems.
An evolving legal controversy surrounds the grow-
ing replacement of public forums—sidewalks,
streets, and public parks—by private ones, such as
shopping malls, condominiums, and gated com-
munities. Should the political protesters who once
convened in front of the local store be barred from
entry to the shopping mall where the store now
stands? Should those gathering signatures for po-
litical initiatives be excluded from gated communi-
ties? These issues pit the property rights of owners
against the expressive needs of communities. Su-
preme Court decisions have given individual states
some leeway in deciding which and when one of
these interests is the more compelling. Related
issues arise in the domain of media, where some
point to the growing concentration of media own-
ership (Bagdikian 1997), the presence of only one
daily newspaper in most U.S. cities, and the
‘‘skewing’’ of media content away from the inter-
ests of the poor (Baker 1998) as evidence that the
marketplace of ideas is not fully served by unregulated
economic markets (Sunstein 1993).
A strict reading of the First Amendment sug-
gests that the government has no right to inter-
cede to regulate communication between a corpo-
ration and its employees (harassment rules provide
an exception) or to intervene when privately owned
media fail to meet the needs of a community.
Many argue that this is as it should be: employees
can always seek employment elsewhere and those
whose speech is barred in one forum can always
seek another. Others insist that differences be-
tween the conditions of modern society and those
at the time the Constitution was drafted warrant
the extension of communicative rights beyond
those provided in the First Amendment.THE LEGAL SUPPRESSION OF SPEECH
DEEMED TO THREATEN THE
ESTABLISHED ORDERA central rationale for laws restricting the expres-
sive activities of people and press is to preserve
national security. The chief mechanisms of en-
forcement under democratic governments have
been restrictions on governmentally controlled
information, laws prohibiting seditious libel, and,
in times of war, systems of prepublication clear-
ance of press dispatches. Most agree that there are
some circumstances, particularly in times of war,