Posted: April 28th, 2015

Analytical essay, Defence of censorship.

Part I.

What is censorship?

• Definitions
  • Narrow – Fortner and Fackler (1998):
    • “…a government’s imposition against the will of the public … as much about displacing one version with another, and displacing texts from one channel to another, as it is about blocking access or destroying transgressive material.”
  • Wide – Jensen and Phillips (2011):
  • “the suppression of information, whether purposeful or not, by any method – including bias, omission, under-reporting or self-censorship”.
  • Reflect the historical milieu

Why censor (1)?

• Protection or promotion of moral “good” (Parker, 1991)
  • Application of traditional authority (Weber)
    • Some information is prohibited by moral codes
    • Some information will lead to immoral behaviour
  • Religious basis
    • Censurapravia (“suppression”) as a privilege of the Catholic Church
  • Protection from harm (Dworkin, 1991)
    • Some information is inherently harmful
      • Emotional harm / psychological harm
      • Rape culture
      • Hate speech (e.g. section 18c of the Racial Discrimination Act)
        • Europe – Dehumanisation and “dignity” over freedom of expression
      • “Security through obscurity”
        • g. bomb making recipes / infrastructure weaknesses

Why censor (2)?

• . Maintenance of order
  • “Noble lie” redux
• Promotion of “the good”
  • Cultivation hypothesis
    • “In an inegalitarian culture, many of the beliefs that people take up from their cultural environment are based on beliefs about the moral inequality of persons…. If people base their ends in life on these false evaluations, their highest-order interest in coming to know the good will have been harmed.”
  • Regulation of scarce resources in the public interest
    • Spectrum and “mass society” – radio / TV
    • Public funding of cultural products – money

Problems of censorship: Theory

• Mill, On Liberty (1859)
  • Unpopular ideas and views – by their nature, may be offensive.
    • Offensiveness, however, does not make them untrue
      • Flint v Falwell, 1988
    • Government therefore can neither:
      • Suppress an idea because of its unpopularity, its falsehood, or its likeliness to offend
    • The search for truth can only be facilitated by total freedom of communication
      • Need for the State to allow the “marketplace of ideas” through a “level playing field” of discourse
    • Exemptions
      • Time, manner and circumstance – “fighting words”
        • Brandenburg v. Ohio (1969)

1. A. V. v. City of St. Paul (1992)

Problems of: Practical

• What to censor?
  • What are “community standards” in a liberal state
    • “Young people may be troubled or disgusted by images or accounts of nonmainstream behaviours, just as adults may be, given that the range of sexual activity found on the Internet is broader than the range found in ‘mainstream’ society.” (The Australia Institute, 2003)
  • How to classify / set down in law?
    • “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it”
      • US Justice Potter Stewart (1964)
    • Practicalities of censorship?
      • “Come on, you have only got to press ‘P’ on the Internet and all this stuff appears free of charge in front of you.”
        • Tasmanian Senator Paul Calvert (1999)

Political defamation

• “Authoritarian” democracies
  • Use against political opponents and investigative media
  • Ruling-party use, examples:
    • Singapore
    • Italy: Criminal defamation
  • English-language democracies
    • In decline?
    • Canada examples:
      • Intra-party use (e.g. Harper v Liberal Party)
      • Government use (e.g. Toronto Port Authority v Community Air)
    • Non-democrocracies
      • Russia: “Yves Rocher case” and AlexeiNavalny

Singapore

• Lee Kuan Yew (founding president)
• https://inforrm.wordpress.com/2015/03/26/lee-kuan-yew-and-freedom-of-expression-the-libel-action-as-a-means-of-silencing-political-opposition-tessa-evans/

Canada:

• Haper v Liberals: suit over if Harper knew about a bribe offered to a MP for a specific vote in parliament (Chuck Cadman) ; settled.
• Toronto Port Authority v Community Air: 2006-7 – sued community group over claim it defamed members of the authority, Community Air appologised and the suit was dropped

Regulating vs chilling speech

• The “chilling” effect
  • Definition
    • When the media do not publish something that would be in the public interest due to the potential for legal action (George, 2012)
  • Action and implications:
    • “Administrative censorship and court injunctions prevent publication in an immediate and straightforward manner. In contrast, the treat of criminal prosecution or a civil action for damages may deter the media from publishing a story, even though if a prosecution (or action), the press (or other media outlet) would be able to defend the action. (Barendt, et al., 1980)
  • Examples:
    • China and arbitrary enforcement of political speech provisions
    • Can’t “push” opaque barriers
  • Barendt, et al. (1980) Libel and the Media: The Chilling Effect, Oxford University Press: New York.
  • Alexandra George (2012) Constructing Intellectual Property, Cambridge.

Challenges to defamation

• Internet / society interface
  • Italian newspapers skirt suits by deep-linking to international media with no domestic presence
  • Berlusconi’s “Weather Girl Scandal”
• Kenyon (2010)
  • Malaysia and Singapore – alignment between media and ruling parties
    • “Invisibility” of dissenters, even elites (e.g. Anwar Ibrahim)
  • Malaysia
    • Vibrant online speech as a result of active civil society organisations
  • Kenyon, A., 2010, “Investigating Chilling Effects: News Media and Public Speech in Malaysia, Singapore, and Australia”, International Journal of Communication, 4

Part II.

The “Spiral of silence” (1)

• Noelle-Neumann (1984):
• People:
  • have a subconscious fear of isolation
  • constantly observe behaviours around them
  • unconsciously issue threats of isolation
• Spiral effect begins when:
  • people speak out confidently
  • opposition feels a greater sense of fear of isolation
  • is further convinced to stay silent, since they are in the minority
  • feelings continue to exponentially
• A strong moral component is necessary
• Mass media has a strong influence on this process.

Digression and revision

• Recap: “The” agenda
  • A “List of issues and events that are viewed at some time ranked in a hierarchy of importance” (Rogers and Dearing, 1988)
• Media relationship / agenda setting example:
  • Case study: Civil rights in the US (1960s)
    • Measures:
      • Public opinion of civil rights “importance” (opinion polling)
      • Editorial decisions (Content analysis)
    • Findings:
      • Four week time lag, declines over time (Winter and Chaim,1981)
    • Implications:
      • Real, but weak media effect on public agenda
      • Or, is it?

Part III. Australia as a case

The Australian case (1)

• First amendment? Meh
  • Australian high court, Mill / Habermas and rationalism
  • “Implied right” of free speech in the constitution
• Long history
  • Colonial paternalism – regulation of theatres
  • State regulation of press, national regulation at point of inportation
  • Electronic media concerns – impacts / rationalism
    • Cultivation hypothesis / Hot v cool media – McLuhan
  • Tendencies:
    • Status quo – industry concerns
    • Generational change
    • Medium by association
    • Periodic “moral panics” (Cohen, 1972)

The Australian case (2)

• Regulatory principles:
  • (a) adults should be able to read, hear and see what they want;
  • (b) minors should be protected from material likely to harm or disturb them;
  • (c) everyone should be protected from exposure to unsolicited material that they find offensive…
  • Particular attention is paid, when classification decisions are made, to the protection of
  • minors from material that is disturbing or harmful
• Three forms of regulation employed:
  • Horizontal: Classifications and standards
  • Vertical: Industry specific regulations
    • Practical (press) and policy (internet) motivations
  • Functional: Specific regulations (e.g. Crimes Act)

The Australian case (3)

• Elements of evolution
  • Regulatory capacity and ability
  • Concerns with new media forms
  • Driven by “moral entrepreneurs”
  • Pragmatism and centrism
• Outcomes
  • A federal cooperative regulatory system
    • SCAG, Classification Australia
    • Federal government:
      • Copyright, physical importation, spectrum, ownership
    • States and territories:
      • Sales of physical goods, theatres
    • Self-regulation
      • Licensing
    • Ad hoc – Crimes Act, Online Gambling

Censorship can “create” pornography

• Bill Henson 2007–2008
  • Roslyn Oxley9 Gallery
• Faulkner (2011):
  • “Blacking out” visually confirms, if not actually constructs, the ‘offensive’ nature of the photographs.”
• Kevin Rudd, PM
  • “absolutely revolting”

Part IV. Non-state censorship

“Corporate” information control

• Information production and resources
  • USA Citizens United v. FEC (2010)
• Suppression:
  • Direct control
  • Control over the distribution of speech
    • Value chain control
  • Effective censorship
    • Incidental control

Corporations as censors (1)

• Filtering products
  • Websense, etc.
• Controlling discovery
  • Google:
    • DMCA compliance to search
  • Youtube
    • Copyright regulation
  • Facebook and Twitter
    • Hate speech
    • Revenge porn
  • Surveillance of civilians:
    • Cisco, Sun, Microsoft:
      • China contracts and the “Great Firewall”
    • “Backdoor”
      • Microsoft and Skype China

Corporations as censors (2)

• Strategic Lawsuits Against Public Participation:
  • “…a lawsuit involving communications made to influence [government] which resulted in a civil complaint or counterclaim filed against nongovernment individuals or organizations on a substantive issue of some public interest or social significance” (Pring and Canan, 1996)
• Elements
  • Need not be effective per se
  • Waste time / backdown
  • Chilling effect
• Examples:
  • NSW – Tobacco
  • Aus – Guns 20
  • UK – McLibel

Corporations as distributors

• Apple App Store as:
  • A legal way to access content
  • Industry “solution” to technological problem
  • A shop front and payment gateway
  • An editorial chokepoint
• App store as a “brand”
• Censorship examples:
  1. Aug. 2008: I Am Rich app
  2. Feb. 2010: “overtly sexual content”
  3. June 2010: James Joyce (sexual content) Oscar Wilde, political cartoons (“ridiculing public figures”)

Is it censorship (1)?

• No
  • Market choice
  • Open web still available
  • “Walled gardens”
    • Censorship by “choice”
  • Yes
    • Steve Jobs:
      • 1970s: free market entrepreneur
      • 2000s:
        • “You might care more about porn when you have kids.”
      • Apple:
        • Economic versus “moral” imperative
          • Risk of litigation (e.g. People of Walmart)
          • Delivery of a “complete experience”
            • Control over the complete “stack”

It is censorship (2)?

• “Effective censorship” – The “absence of representation”
  • Economic bias of news production
    • Macro-explanation:
      • Commercialism ( middle class sensibility)
      • Centrism as a bias
        • Manne (2005) – the Iraq War and WMD
        • McIver (2009) – Today Tonight and the “Aussie battler”
      • Micro-explanation:
        • Nature of news professionals, location and background
        • North (2009): gendered nature of news
      • Pluralism and the new media
        • Economic bias of news aggregation online
          • “Destruction” of news value through online syndication
            • Problems of media finding new business models
            • Reduction in “low end” media
              • News as an elite service
            • Hindman (2009) and the Googlearchy
              • Capacity for counter-publics to “find voice”
                • “Power law” effect – magnification of visibility and cross-referencing online
              • Therefore: “false abundance”

In summation…

 

• Censorship as a concept
  • Narrow vs wide definitions
  • State, societal and corporate
  • Reasons for
    • Morals
    • Harm
    • Good
    • Order
  • Reasons against
    • Liberty
    • Self-regulation
    • Rationality

 

Censorship as an experience

• Historical applications
  • US free speech purism
  • Constrained liberalism
  • Authoritarianism
  • Anti-democratic states
• Social context
  • Spiral of silence
• Emerging practices
  • Censorship as a difficult state practice
  • Censorship and the corporate sector
  • Technology and control