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Saturday, December 4, 2021

Hollywood blacklist

From Wikipedia, the free encyclopedia

Members of the Hollywood Ten and their families in 1950, protesting the impending incarceration of the ten

The Hollywood blacklist was the colloquial term for what was in actuality a broader entertainment industry blacklist put in effect in the mid-20th century in the United States during the early years of the Cold War. The blacklist involved the practice of denying employment to entertainment industry professionals believed to be or to have been Communists or sympathizers. Not just actors, but screenwriters, directors, musicians, and other American entertainment professionals were barred from work by the studios. This was usually done on the basis of their membership in, alleged membership in, or sympathy with the Communist Party USA, or on the basis of their refusal to assist Congressional investigations into the party's activities. Even during the period of its strictest enforcement, from the late 1940s through to the late 1950s, the blacklist was rarely made explicit or easily verifiable, as it was the result of numerous individual decisions by the studios and was not the result of official legal action. Nevertheless, it quickly and directly damaged or ended the careers and income of scores of individuals working in the film industry.

Hollywood Ten

The first systematic Hollywood blacklist was instituted on November 25, 1947, the day after ten writers and directors were cited for contempt of Congress for refusing to testify before the House Un-American Activities Committee (HUAC). These personalities were subpoenaed to appear before HUAC in October. The contempt citation included a criminal charge, which led to a highly publicized trial and an eventual conviction with a maximum of one year in jail in addition to a $1,000 fine. The Congressional action prompted a group of studio executives, acting under the aegis of the Association of Motion Picture Producers, to fire the artists – the so-called Hollywood Ten – and made what has become known as the Waldorf Statement. It was announced via a news release after the major producers met at the Waldorf-Astoria Hotel and it included a condemnation of the personalities involved, effectively ostracizing those named from the industry. These producers instituted compulsory oaths of loyalty from their employees with the threat of a blacklist.

Blacklist

On June 22, 1950, a pamphlet entitled Red Channels was published. Focused on the field of broadcasting, it identified 151 entertainment industry professionals in the context of "Red Fascists and their sympathizers". Soon, most of those named, along with a host of other artists, were barred from employment in most of the entertainment field.

The blacklist lasted until 1960, when Dalton Trumbo, a Communist Party member from 1943 to 1948 and member of the Hollywood Ten, was credited as the screenwriter of the film Exodus (1960), and publicly acknowledged by actor Kirk Douglas for writing the screenplay for Spartacus (also 1960). Many of those blacklisted, however, were still barred from work in their professions for years afterward.

History

Background

The Hollywood blacklist was rooted in events of the 1930s and the early 1940s, encompassing the height of the Great Depression and World War II. Two major film industry strikes during the 1930s increased tensions between the Hollywood producers and the unions, particularly the Screen Writers Guild.

The Communist Party USA (CPUSA) lost substantial support after the Moscow show trials of 1936–1938 and the Molotov–Ribbentrop Pact of 1939. The U.S. government began turning its attention to the possible links between Hollywood and the party during this period. Under then-chairman Martin Dies, Jr., the House Un-American Activities Committee (HUAC) released a report in 1938 claiming that communism was pervasive in Hollywood. Two years later, Dies privately took testimony from a former Communist Party member, John L. Leech, who named forty-two movie industry professionals as Communists. After Leech repeated his charges in supposed confidence to a Los Angeles grand jury, many of the names were reported in the press, including those of stars Humphrey Bogart, James Cagney, Katharine Hepburn, Melvyn Douglas and Fredric March, among other Hollywood figures. Dies said he would "clear" all those who co-operated by meeting with him in what he called "executive session". Within two weeks of the grand jury leak, all those on the list except for actress Jean Muir had met with the HUAC chairman. Dies "cleared" everyone except actor Lionel Stander, who was fired by the movie studio, Republic Pictures, where he was under contract.

In 1941, producer Walt Disney took out an ad in Variety, the industry trade magazine, declaring his conviction that "Communist agitation" was behind a cartoonists and animators' strike. According to historians Larry Ceplair and Steven Englund, "In actuality, the strike had resulted from Disney's overbearing paternalism, high-handedness, and insensitivity." Inspired by Disney, California State Senator Jack Tenney, chairman of the state legislature's Joint Fact-Finding Committee on Un-American Activities, launched an investigation of "Reds in movies". The probe fell flat, and was mocked in several Variety headlines.

The subsequent wartime alliance between the United States and the Soviet Union brought the CPUSA newfound credibility. During the war, membership in the party reached a peak of 50,000. As World War II drew to a close, perceptions changed again, with communism increasingly becoming a focus of American fears and hatred. In 1945, Gerald L. K. Smith, founder of the neofascist America First Party, began giving speeches in Los Angeles assailing the "alien minded Russian Jews in Hollywood". Mississippi congressman John E. Rankin, a member of HUAC, held a press conference to declare that "one of the most dangerous plots ever instigated for the overthrow of this Government has its headquarters in Hollywood ... the greatest hotbed of subversive activities in the United States". Rankin promised, "We're on the trail of the tarantula now". Reports of Soviet repression in Eastern and Central Europe in the war's aftermath added more fuel to what became known as the "Second Red Scare". The growth of conservative political influence and the Republican triumph in the 1946 Congressional elections, which saw the party take control of both the House and Senate, led to a major revival of institutional anticommunist activity, publicly spearheaded by HUAC. The following year, the Motion Picture Alliance for the Preservation of American Ideals (MPA), a political action group cofounded by Walt Disney, issued a pamphlet advising producers on the avoidance of "subtle communistic touches" in their films. Its counsel revolved around a list of ideological prohibitions, such as "Don't smear the free-enterprise system ... Don't smear industrialists ... Don't smear wealth ... Don't smear the profit motive ... Don't deify the 'common man' ... Don't glorify the collective".

Beginning (1946–1947)

On July 29, 1946, William R. Wilkerson, publisher and founder of The Hollywood Reporter, published a "TradeView" column entitled "A Vote For Joe Stalin". It named as Communist sympathizers Dalton Trumbo, Maurice Rapf, Lester Cole, Howard Koch, Harold Buchman, John Wexley, Ring Lardner Jr., Harold Salemson, Henry Meyers, Theodore Strauss, and John Howard Lawson. In August and September 1946, Wilkerson published other columns containing names of numerous purported Communists and sympathizers. They became known as "Billy's List" and "Billy's Blacklist". In 1962, when Wilkerson died, his THR obituary stated he had "named names, pseudonyms and card numbers and was widely credited with being chiefly responsible for preventing communists from becoming entrenched in Hollywood production – something that foreign film unions have been unable to do." In a 65th-anniversary article in 2012, Wilkerson's son apologized for the paper's role in the blacklist, stating that his father was motivated by revenge for his own thwarted ambition to own a studio.

In October 1947, drawing upon the list named in The Hollywood Reporter, the House Un-American Activities Committee subpoenaed a number of persons working in the Hollywood film industry to testify at hearings. The committee had declared its intention to investigate whether Communist agents and sympathizers had been planting propaganda in American films.

The hearings began with appearances by Walt Disney and Ronald Reagan, then president of the Screen Actors Guild. Disney testified that the threat of Communists in the film industry was a serious one, and named specific people who had worked for him as probable Communists. Reagan testified that a small clique within his union was using "communist-like tactics" in attempting to steer union policy, but that he did not know if those (unnamed) members were communists or not, and that in any case he thought the union had them under control. (Later his first wife, actress Jane Wyman, stated in her biography written with Joe Morella [1985] that Reagan's allegations against friends and colleagues led to tension in their marriage, eventually resulting in their divorce.) Actor Adolphe Menjou declared: "I am a witch hunter if the witches are Communists. I am a Red-baiter. I would like to see them all back in Russia."

In contrast, other leading Hollywood figures, including director John Huston and actors Humphrey Bogart, Lauren Bacall, Judy Garland and Danny Kaye, organized the Committee for the First Amendment to protest the government's targeting of the film industry. Members of the committee, such as Sterling Hayden, assured Bogart that they were not Communists. During the hearings, a local Washington paper reported that Hayden was a Communist. After returning to Hollywood, Bogart shouted at Danny Kaye, "You fuckers sold me out." The group came under attack as being naive or foolish. Under pressure from his studio, Warner Bros., to distance himself from the Hollywood Ten, Bogart negotiated a statement that did not denounce the committee, but said that his trip was "ill-advised, even foolish". Billy Wilder told the group that "we oughta fold".

Many of the film industry professionals in whom HUAC had expressed interest were alleged to have been members of the Communist Party USA. Of the 43 people put on the witness list, 19 declared that they would not give evidence. Eleven of these 19 were called before the committee. Members of the Committee for the First Amendment flew to Washington ahead of this climactic phase of the hearing, which commenced on Monday, October 27. Of the eleven "unfriendly witnesses", one, émigré playwright Bertolt Brecht, ultimately chose to answer the committee's questions (following which he left the country). The other ten refused, citing their First Amendment rights to freedom of speech and assembly. Included among the questions they refused to answer was one now generally rendered as "Are you now, or have you ever been, a member of the Communist Party?". The Committee formally accused these ten of contempt of Congress, and began criminal proceedings against them in the full House of Representatives.

In light of the "Hollywood Ten"'s defiance of HUAC – in addition to refusing to testify, many had tried to read statements decrying the committee's investigation as unconstitutional – political pressure mounted on the film industry to demonstrate its "anti-subversive" bona fides. Late in the hearings, Eric Johnston, president of the Association of Motion Picture Producers (AMPP) (and Motion Picture Association of America (MPAA)), declared to the committee that he would never "employ any proven or admitted Communist because they are just a disruptive force, and I don't want them around".

On November 17, the Screen Actors Guild voted to make its officers swear a pledge asserting each was not a Communist. The following week, on November 24, the House of Representatives voted 346 to 17 to approve citations against the Hollywood Ten for contempt of Congress. The next day, following a meeting of film industry executives at New York's Waldorf-Astoria hotel, AMPP President Johnston issued a press release that is today referred to as the Waldorf Statement. Their statement said that the ten would be fired or suspended without pay and not re-employed until they were cleared of contempt charges and had sworn that they were not Communists. The first Hollywood blacklist was in effect.

Growth (1948–1950)

The HUAC hearings failed to turn up any evidence that Hollywood was secretly disseminating Communist propaganda, but the industry was nonetheless transformed. The fallout from the inquiry was a factor in the decision by Floyd Odlum, the primary owner of RKO Pictures, to leave the industry. As a result, the studio passed into the hands of Howard Hughes. Within weeks of taking over in May 1948, Hughes fired most of RKO's employees and virtually shut the studio down for six months as he had the political sympathies of the rest investigated. Then, just as RKO swung back into production, Hughes made the decision to settle a long-standing federal antitrust suit against the industry's Big Five studios. This was one of the crucial steps in the collapse of the studio system that had governed Hollywood for a quarter-century.

In early 1948, all of the Hollywood Ten were convicted of contempt. Following a series of unsuccessful appeals, the cases arrived before the Supreme Court; among the submissions filed in defense of the ten was an amicus curiae brief signed by 204 Hollywood professionals. After the court denied review, the Hollywood Ten began serving one-year prison sentences in 1950. One of the Ten, screenwriter Dalton Trumbo, stated in the documentary film Hollywood On Trial (1976):

As far as I was concerned, it was a completely just verdict. I had contempt for that Congress and have had contempt for several since. And on the basis of guilt or innocence, I could never really complain very much. That this was a crime or misdemeanor was the complaint, my complaint.

In September 1950, one of the Ten, director Edward Dmytryk, publicly announced that he had once been a Communist and was prepared to give evidence against others who had been as well. He was released early from jail; following his 1951 HUAC appearance, in which he described his brief membership in the party and named names, his career recovered.

The others remained silent and most were unable to obtain work in the American film and television industry for many years. Adrian Scott, who had produced four of Dmytryk's films – Murder, My Sweet; Cornered; So Well Remembered; and Crossfire – was one of those named by his former friend. Scott's next screen credit did not come until 1972 and he never produced another feature film. Some of those blacklisted continued to write for Hollywood or the broadcasting industry surreptitiously, using pseudonyms or the names of friends who posed as the actual writers (those who allowed their names to be used in this fashion were called "fronts"). Of the 204 who signed the amicus brief, 84 were themselves blacklisted. There was a more general chilling effect: Humphrey Bogart, who had been one of the most prominent members of the Committee for the First Amendment, felt compelled to write an article for Photoplay magazine denying he was a Communist sympathizer. The Tenney Committee, which had continued its state-level investigations, summoned songwriter Ira Gershwin to testify about his participation in the committee.

The May 7, 1948, issue of the Counterattack newsletter warned readers about a radio talk show that had recently expanded its audience by moving from the Mutual network to ABC: "Communist Party members and fellow-travelers have often been guests on [Arthur] Gaeth's program."

A number of non-governmental organizations participated in enforcing and expanding the blacklist; in particular, the American Legion, the conservative war veterans' group, was instrumental in pressuring the entertainment industry to exclude communists and their sympathizers. In 1949, the Americanism Division of the Legion issued its own blacklist – a roster of 128 people whom it claimed were participants in the "Communist Conspiracy". Among the names on the Legion's list was that of the playwright Lillian Hellman. Hellman had written or contributed to the screenplays of approximately ten motion pictures up to that point; she was not employed again by a Hollywood studio until 1966.

Another influential group was American Business Consultants Inc., founded in 1947. In the subscription information for its weekly publication Counterattack, "The Newsletter of Facts to Combat Communism", it declared that it was run by "a group of former FBI men. It has no affiliation whatsoever with any government agency." Notwithstanding that claim, it seems the editors of Counterattack had direct access to the files of both the Federal Bureau of Investigation and HUAC; the results of that access became widely apparent with the June 1950 publication of Red Channels. This Counterattack spinoff listed 151 people in entertainment and broadcast journalism, along with records of their involvement in what the pamphlet meant to be taken as Communist or pro-Communist activities. A few of those named, such as Hellman, were already being denied employment in the motion picture, TV, and radio fields; the publication of Red Channels meant that scores more were placed on the blacklist. That year, CBS instituted a loyalty oath which it required of all its employees.

Jean Muir was the first performer to lose employment because of a listing in Red Channels. In 1950, Muir was named as a Communist sympathizer in the pamphlet, and was immediately removed from the cast of the television sitcom The Aldrich Family, in which she had been cast as Mrs. Aldrich. NBC had received between 20 and 30 phone calls protesting her being in the show. General Foods, the sponsor, said that it would not sponsor programs in which "controversial persons" were featured. Though the company later received thousands of calls protesting the decision, it was not reversed.

HUAC return (1951–1952)

In 1951, with the U.S. Congress now under Democratic control, HUAC launched a second investigation of Hollywood and Communism. As actor Larry Parks said when called before the panel,

Don't present me with the choice of either being in contempt of this committee and going to jail or forcing me to really crawl through the mud to be an informer. For what purpose? I don't think it is a choice at all. I don't think this is really sportsmanlike. I don't think this is American. I don't think this is American justice.

Parks ultimately testified, becoming, however reluctantly, a "friendly witness", and found himself blacklisted, nonetheless.

In fact, the legal tactics of those refusing to testify had changed by this time; instead of relying on the First Amendment, they invoked the Fifth Amendment's shield against self-incrimination (although, as before, Communist Party membership was not illegal). While this usually allowed a witness to avoid "naming names" without being indicted for contempt of Congress, "taking the Fifth" before HUAC guaranteed one's membership on the industry blacklist. Historians at times distinguish between the relatively official blacklist – the names of those who (a) were called by HUAC and, in whatever manner, refused to co-operate and/or (b) were identified as Communists in the hearings – and the so-called graylist – those others who were denied work because of their political or personal affiliations, real or imagined; the consequences, however, were largely the same. The graylist also refers more specifically to those who were denied work by the major studios, but could still find jobs on Poverty Row: Composer Elmer Bernstein, for instance, was called by HUAC when it was discovered that he had written some music reviews for a Communist newspaper. After he refused to name names, pointing out that he had never attended a Communist Party meeting, he found himself composing music for movies such as Cat Women of the Moon.

Anticommunist tract from the 1950s, decrying the "REDS of Hollywood and Broadway"

Like Parks and Dmytryk, others also co-operated with the committee. Some friendly witnesses gave broadly damaging testimony with less apparent reluctance, most prominently director Elia Kazan and screenwriter Budd Schulberg. Their co-operation in describing the political leanings of their friends and professional associates effectively brought a halt to dozens of careers and compelled a number of artists to depart for Mexico or Europe. Others were also forced abroad in order to work. Director Jules Dassin was among the best known of these. Briefly a Communist, Dassin had left the party in 1939. He was immediately blacklisted after Edward Dmytryk and fellow filmmaker Frank Tuttle named him to HUAC in 1952. Dassin left for France, and spent much of his remaining career in Greece. Scholar Thomas Doherty describes how the HUAC hearings swept onto the blacklist those who had never even been particularly active politically, let alone suspected of being Communists:

[O]n March 21, 1951, the name of the actor Lionel Stander was uttered by the actor Larry Parks during testimony before HUAC. "Do you know Lionel Stander?" committee counsel Frank S. Tavenner inquired. Parks replied he knew the man, but had no knowledge of his political affiliations. No more was said about Stander either by Parks or the committee – no accusation, no insinuation. Yet Stander's phone stopped ringing. Prior to Parks's testimony, Stander had worked on ten television shows in the previous 100 days. Afterwards, nothing.

When Stander was himself called before HUAC, he began by pledging his full support in the fight against "subversive" activities:

I know of a group of fanatics who are desperately trying to undermine the Constitution of the United States by depriving artists and others of Life, Liberty, and the Pursuit of Happiness without due process of law ... I can tell names and cite instances and I am one of the first victims of it ... [This is] a group of ex-Fascists and America-Firsters and anti-Semites, people who hate everybody, including Negroes, minority groups, and most likely themselves ... [T]hese people are engaged in a conspiracy outside all the legal processes to undermine the very fundamental American concepts upon which our entire system of democracy exists.

Stander was clearly speaking of the committee itself.

The hunt for subversives extended into every branch of the entertainment industry. In the field of animation, two studios in particular were affected: United Productions of America (UPA) was purged of a large portion of its staff, while New York-based Tempo was entirely crushed. HUAC investigations effectively destroyed families. Screenwriter Richard Collins, after a brief period on the blacklist, became a friendly witness and dumped his wife, actress Dorothy Comingore, who refused to name names. Divorcing Comingore, Collins took the couple's young son, as well. The family's story was later dramatized in the film Guilty by Suspicion (1991), in which the character based on Comingore "commits suicide rather than endure a long mental collapse". In real life, Comingore succumbed to alcoholism and died of a pulmonary disease at the age of fifty-eight. In the description of historians Paul Buhle and David Wagner, "premature strokes and heart attacks were fairly common [among blacklistees], along with heavy drinking as a form of suicide on the installment plan".

For all that, evidence that Communists were actually using Hollywood films as vehicles for subversion remained hard to come by. Schulberg reported that the manuscript of his novel What Makes Sammy Run? (later a screenplay, as well) had been subject to an ideological critique by Hollywood Ten writer John Howard Lawson, whose comments he had solicited. The significance of such interactions was questionable. As historian Gerald Horne describes, many Hollywood screenwriters had joined or associated with the local Communist Party chapter because it "offered a collective to a profession that was enmeshed in tremendous isolation at the typewriter. Their 'Writers' Clinic' had 'an informal "board" of respected screenwriters' – including Lawson and Ring Lardner Jr. – 'who read and commented upon any screenplay submitted to them. Although their criticism could be plentiful, stinging, and (sometimes) politically dogmatic, the author was entirely free to accept it or reject it as he or she pleased without incurring the slightest "consequence" or sanction.'" Much of the onscreen evidence of Communist influence uncovered by HUAC was feeble at best. One witness remembered Stander, while performing in a film, whistling the left-wing "Internationale" as his character waited for an elevator. "Another noted that screenwriter Lester Cole had inserted lines from a famous pro-Loyalist speech by La Pasionaria about it being 'better to die on your feet than to live on your knees' into a pep talk delivered by a football coach."

Others disagree about how Communists affected the film industry. The author Kenneth Billingsley, writing in Reason magazine, said that Trumbo wrote in The Daily Worker about films which he said communist influence in Hollywood had prevented from being made: among them were proposed adaptations of Arthur Koestler's anti-totalitarian works Darkness at Noon and The Yogi and the Commissar, which described the rise of communism in Russia. Authors Ronald and Allis Radosh, writing in Red Star over Hollywood: The Film Colony's Long Romance with the Left, said that Trumbo bragged about how he and other party members stopped anti-communist films from being produced.

Height (1952–1956)

In 1952, the Screen Writers Guild – which had been founded two decades before by three future members of the Hollywood Ten – authorized the movie studios to "omit from the screen" the names of any individuals who had failed to clear themselves before Congress. Writer Dalton Trumbo, for instance, one of the Hollywood Ten and still on the blacklist, had received screen credit in 1950 for writing, years earlier, the story on which the screenplay of Columbia Pictures' Emergency Wedding was based. There was no more of that until the 1960s. The name of Albert Maltz, who had written the original screenplay for The Robe in the mid-1940s, was nowhere to be seen when the movie was released in 1953.

As William O'Neill describes, pressure was maintained even on those who had ostensibly "cleared" themselves:

On December 27, 1952, the American Legion announced that it disapproved of a new film, Moulin Rouge, starring José Ferrer, who used to be no more progressive than hundreds of other actors and had already been grilled by HUAC. The picture itself was based on the life of Toulouse-Lautrec and was totally apolitical. Nine members of the Legion had picketed it anyway, giving rise to the controversy. By this time, people were not taking any chances. Ferrer immediately wired the Legion's national commander that he would be glad to join the veterans in their "fight against communism".

The group's efforts dragged many others onto the blacklist: In 1954, "[s]creenwriter Louis Pollock, a man without any known political views or associations, suddenly had his career yanked out from under him because the American Legion confused him with Louis Pollack, a California clothier, who had refused to co-operate with HUAC." Orson Bean recalled that he had briefly been placed on the blacklist after dating a member of the party, despite his own politics being conservative.

During this same period, a number of influential newspaper columnists covering the entertainment industry, including Walter Winchell, Hedda Hopper, Victor Riesel, Jack O'Brian, and George Sokolsky, regularly offered up names with the suggestion that they should be added to the blacklist. Actor John Ireland received an out-of-court settlement to end a 1954 lawsuit against the Young & Rubicam advertising agency, which had ordered him dropped from the lead role in a television series it sponsored. Variety described it as "the first industry admission of what has for some time been an open secret – that the threat of being labeled a political non-conformist, or worse, has been used against show business personalities, and that a screening system is at work determining these [actors'] availabilities for roles".

The first Hollywood movie to overtly take on McCarthyism, Storm Center was released in 1956. Bette Davis "plays a small-town librarian who refuses, on principle, to remove a book called The Communist Dream from the shelves when the local council deems it subversive".

The Hollywood blacklist had long gone hand in hand with the Red-baiting activities of J. Edgar Hoover's FBI. Adversaries of HUAC such as lawyer Bartley Crum, who defended some of the Hollywood Ten in front of the committee in 1947, were labeled as Communist sympathizers or subversives and targeted for investigation themselves. Throughout the 1950s, the FBI tapped Crum's phones, opened his mail, and placed him under continuous surveillance. As a result, he lost most of his clients and, unable to cope with the stress of ceaseless harassment, committed suicide in 1959. Intimidating and dividing the left is now seen as a central purpose of the HUAC hearings. Fund-raising for once-popular humanitarian efforts became difficult, and despite the sympathies of many in the industry there was little open support in Hollywood for causes such as the Civil Rights Movement and opposition to nuclear weapons testing.

The struggles attending the blacklist were played out metaphorically on the big screen in various ways. As described by film historian James Chapman, "Carl Foreman, who had refused to testify before the committee, wrote the western High Noon (1952), in which a town marshal (played, ironically, by friendly witness Gary Cooper) finds himself deserted by the good citizens of Hadleyville (read: Hollywood) when a gang of outlaws who had terrorized the town several years earlier (read: HUAC) returns." Cooper's lawman cleaned up Hadleyville, but Foreman was forced to leave for Europe to find work. Meanwhile, Kazan and Schulberg collaborated on a movie widely seen as justifying their decision to name names. On the Waterfront (1954) became one of the most honored films in Hollywood history, winning eight Academy Awards, including Oscars for Best Film, Kazan's direction, and Schulberg's screenplay. The film featured Lee J. Cobb, one of the best known actors to name names. Time Out Film Guide argues that the film is "undermined" by its "embarrassing special pleading on behalf of informers".

After his release from prison, Herbert Biberman of the Hollywood Ten directed Salt of the Earth (also 1954), working independently in New Mexico with fellow blacklisted Hollywood professionals – producer Paul Jarrico, writer Michael Wilson, and actors Rosaura Revueltas and Will Geer. The film, concerning a strike by Mexican-American mine workers, was denounced as Communist propaganda when it was completed in 1953. Distributors boycotted it, newspapers and radio stations rejected advertisements for it, and the projectionists' union refused to run it. Nationwide in 1954, only around a dozen theaters exhibited it.

Break (1957–present)

Jules Dassin was one of the first to break the blacklist. Although he was named by Edward Dmytryk and Frank Tuttle in spring 1951, he directed in December 1952 the Broadway Play Two's Company with Bette Davis. In June 1956, his French film production Rififi opened at the Fine Arts Theater and stayed for 20 weeks.

A key figure in bringing an end to blacklisting was John Henry Faulk. Host of an afternoon comedy radio show, Faulk was a leftist active in his union, the American Federation of Television and Radio Artists. He was scrutinized by AWARE, Inc., one of the private firms that examined individuals for signs of Communist sympathies and "disloyalty". Marked by the group as unfit, he was fired by CBS Radio. Almost alone among the many victims of blacklisting, Faulk decided to sue AWARE in 1957. Though the case dragged through the courts for years, the suit itself was an important symbol of the building resistance to the blacklist.

The initial cracks in the entertainment industry blacklist were evident on television, specifically at CBS. In 1957, blacklisted actor Norman Lloyd was hired by Alfred Hitchcock as an associate producer for his anthology series Alfred Hitchcock Presents, then entering its third season on the network. On November 30, 1958, a live CBS production of Wonderful Town, based on short stories written by then-Communist Ruth McKenney, appeared with the proper writing credit of blacklisted Edward Chodorov, along with his literary partner, Joseph Fields. The following year, actress Betty Hutton insisted that blacklisted composer Jerry Fielding be hired as musical director for her new series, also on CBS. The first main break in the Hollywood blacklist followed soon after. On January 20, 1960, director Otto Preminger publicly announced that Dalton Trumbo, one of the best known members of the Hollywood Ten, was the screenwriter of his forthcoming film Exodus. Six and a half months later, with Exodus still to debut, The New York Times announced that Universal Pictures would give Trumbo screen credit for his role as writer on Spartacus, a decision now recognized as being largely made by star/producer Kirk Douglas. On October 6, Spartacus premiered – the first movie to bear Trumbo's name since he had received story credit on Emergency Wedding in 1950. Since 1947, he had written or co-written approximately seventeen motion pictures without credit. Exodus followed in December, also bearing Trumbo's name. The blacklist was now clearly coming to an end, but its effects continue to reverberate even until the present.

John Henry Faulk won his lawsuit in 1962. With this court decision, the private blacklisters and those who used them were put on notice that they were legally liable for the professional and financial damage they caused. This helped to bring an end to publications such as Counterattack. Like Adrian Scott and Lillian Hellman, however, a number of those on the blacklist remained there for an extended period – Lionel Stander, for instance, could not find work in Hollywood until 1965. Some of those who named names, like Kazan and Schulberg, argued for years after that they had made an ethically proper decision. Others, like actor Lee J. Cobb and director Michael Gordon, who gave friendly testimony to HUAC after suffering on the blacklist for a time, "concede[d] with remorse that their plan was to name their way back to work". Others were haunted by the choice they had made. In 1963, actor Sterling Hayden declared,

I was a rat, a stoolie, and the names I named of those close friends were blacklisted and deprived of their livelihood.

Scholars Paul Buhle and Dave Wagner state that Hayden "was widely believed to have drunk himself into a near-suicidal depression decades before his 1986 death".

Into the 21st century, the Writers Guild pursued the correction of screen credits from movies of the 1950s and early 1960s to properly reflect the work of blacklisted writers such as Carl Foreman and Hugo Butler. On December 19, 2011, the guild, acting on a request for an investigation made by his dying son Christopher Trumbo, announced that Dalton Trumbo would get full credit for his work on the screenplay for the romantic comedy Roman Holiday (1953), almost sixty years after the fact.

Blacklisted

The Hollywood Ten

The following ten individuals were cited for contempt of Congress and blacklisted after refusing to answer questions about their alleged involvement with the Communist Party:

In late September 1947, HUAC subpoenaed 79 individuals on a claim that they were subversive and the supposition that they injected Communist propaganda into their films. Although never substantiating this claim, the investigators charged them with contempt of Congress when they refused to answer the questions about their membership in the Screen Writers Guild and Communist Party. The Committee demanded they admit their political beliefs and name names of other Communists. Nineteen of those refused to co-operate, and due to illnesses, scheduling conflicts, and exhaustion from the chaotic hearings, only 10 appeared before the Committee. These men became known as the Hollywood Ten.

Belonging to the Communist Party did not constitute a crime, and the Committee's right to investigate these men was questionable in the first place. These men relied on the First Amendment's right to privacy, freedom of speech, and freedom of thought, but the Committee charged them with contempt of Congress for refusing to answer questions. Later defendants – except Pete Seeger – tried different strategies.

Acknowledging the potential for punishment, the Ten still took bold stands, resisting the authority of HUAC. They yelled at the Chairman and treated the Committee with open indignation, emanating negativity and discouraging outside public favor and help. Upon receiving their contempt citations, they believed the Supreme Court would overturn the rulings, which did not turn out to be the case, and as a result, they were convicted of contempt and fined $1,000 each (or, over $10,700 USD in 2016 dollars, when adjusted for inflation), and sentenced to six-months to one-year prison terms.

HUAC did not treat the Ten with respect either, refusing to allow most of them to speak for more than just a few words at a time. Meanwhile, witnesses who had arranged to co-operate with the Committee (such as the anti-Communist screenwriter Ayn Rand) were allowed to speak at length.

Martin Redish suggests that, at this time, the First Amendment's right of free expression in these cases was used to protect the powers of the government accusers instead of the rights of the citizen-victims. After witnessing the well-publicized ineffectiveness of the Ten's defense strategy, later defendants chose to plead the Fifth Amendment (against self-incrimination), instead.

Public support for the Hollywood Ten wavered, as everyday citizen-observers were never really sure what to make of them. Some of these men later wrote about their experiences as part of the Ten. John Howard Lawson, the Ten's unofficial leader, wrote a book attacking Hollywood for appeasing HUAC. While mostly criticizing the studios for their weakness, Lawson also defends himself/the Ten and criticizes Edward Dmytryk for being the only one to recant and eventually co-operate with HUAC.

In his 1981 autobiography, Hollywood Red, screenwriter Lester Cole stated that all of the Hollywood Ten had been Communist Party USA members at some point. Other members of the Hollywood Ten, such as Dalton Trumbo and Edward Dmytryk, publicly admitted to being Communists while testifying before the Committee.

When Dmytryk wrote his memoir about this period, he denounced the Ten, and defended his decision to work with HUAC. He claimed to have left the Communist Party before having been subpoenaed, defining himself as the "odd man out". He condemns the Ten's legal tactic of defiance, and regrets staying with the group for as long as he did.

Freedom of speech in the United States

The Newseum's five freedoms guaranteed by the First Amendment to the U.S. Constitution

In the United States, freedom of speech and expression is strongly protected from government restrictions by the First Amendment to the United States Constitution, many state constitutions, and state and federal laws. Freedom of speech, also called free speech, means the free and public expression of opinions without censorship, interference and restraint by the government. The term "freedom of speech" embedded in the First Amendment encompasses the decision what to say as well as what not to say. The Supreme Court of the United States has recognized several categories of speech that are given lesser or no protection by the First Amendment and has recognized that governments may enact reasonable time, place, or manner restrictions on speech. The First Amendment's constitutional right of free speech, which is applicable to state and local governments under the incorporation doctrine, prevents only government restrictions on speech, not restrictions imposed by private individuals or businesses unless they are acting on behalf of the government. However, laws may restrict the ability of private businesses and individuals from restricting the speech of others, such as employment laws that restrict employers' ability to prevent employees from disclosing their salary to coworkers or attempting to organize a labor union.

The First Amendment's freedom of speech right not only proscribes most government restrictions on the content of speech and ability to speak, but also protects the right to receive information, prohibits most government restrictions or burdens that discriminate between speakers, restricts the tort liability of individuals for certain speech, and prevents the government from requiring individuals and corporations to speak or finance certain types of speech with which they do not agree.

Categories of speech that are given lesser or no protection by the First Amendment include obscenity (as determined by the Miller test), fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, and regulation of commercial speech such as advertising. Within these limited areas, other limitations on free speech balance rights to free speech and other rights, such as rights for authors over their works (copyright), protection from imminent or potential violence against particular persons, restrictions on the use of untruths to harm others (slander and libel), and communications while a person is in prison. When a speech restriction is challenged in court, it is presumed invalid and the government bears the burden of convincing the court that the restriction is constitutional.

History

England

During colonial times, English speech regulations were rather restrictive. The English criminal common law of seditious libel made criticizing the government a crime. Lord Chief Justice John Holt, writing in 1704–1705, explained the rationale for the prohibition: "For it is very necessary for all governments that the people should have a good opinion of it." The objective truth of a statement in violation of the libel law was not a defense.

Until 1694 England had an elaborate system of licensing; no publication was allowed without the accompaniment of the government-granted license.

Colonies

The colonies originally had very different views on the protection of free speech. During English colonialism in America, there were fewer prosecutions for seditious libel than England, but other controls over dissident speech existed.

The most stringent controls on speech in the colonial period were controls that outlawed or otherwise censored speech that was considered blasphemous in a religious sense. A 1646 Massachusetts law, for example, punished persons who denied the immortality of the soul. In 1612, a Virginia governor declared the death penalty for a person that denied the Trinity under Virginia's Laws Divine, Moral and Martial, which also outlawed blasphemy, speaking badly of ministers and royalty, and "disgraceful words".

More recent scholarship, focusing on seditious speech in the 17th-century colonies (when there was no press), has shown that from 1607 to 1700 the colonists' freedom of speech expanded dramatically, laying a foundation for the political dissent that flowered among the Revolutionary generation.

The trial of John Peter Zenger in 1735 was a seditious libel prosecution for Zenger's publication of criticisms of the Governor of New York, William Cosby. Andrew Hamilton represented Zenger and argued that truth should be a defense to the crime of seditious libel, but the court rejected this argument. Hamilton persuaded the jury, however, to disregard the law and to acquit Zenger. The case is considered a victory for freedom of speech as well as a prime example of jury nullification. The case marked the beginning of a trend of greater acceptance and tolerance of free speech.

First Amendment ratification

In the 1780s after the American Revolutionary War, debate over the adoption of a new Constitution resulted in a division between Federalists, such as Alexander Hamilton who favored a strong federal government, and Anti-Federalists, such as Thomas Jefferson and Patrick Henry who favored a weaker federal government.

During and after the Constitution ratification process, Anti-Federalists and state legislatures expressed concern that the new Constitution placed too much emphasis on the power of the federal government. The drafting and eventual adoption of the Bill of Rights, including the First Amendment, was, in large part, a result of these concerns, as the Bill of Rights limited the power of the federal government.

Alien and Sedition Acts

In 1798, Congress, which contained several of the ratifiers of the First Amendment at the time, adopted the Alien and Sedition Acts. The laws prohibited the publication of "false, scandalous, and malicious writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame ... or to bring them ... into contempt or disrepute; or to excite against them ... hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States".

The law did allow truth as a defense and required proof of malicious intent. The 1798 Act nevertheless made ascertainment of the intent of the framers regarding the First Amendment somewhat difficult, as some of the members of Congress that supported the adoption of the First Amendment also voted to adopt the 1798 Act. The Federalists under President John Adams aggressively used the law against their rivals, the Democratic-Republicans. The Alien and Sedition Acts were a major political issue in the 1800 election, and after he was elected President, Thomas Jefferson pardoned those who had been convicted under the Act. The Act expired and the Supreme Court never ruled on its constitutionality.

In New York Times v. Sullivan, the Court declared "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history." 376 U.S. 254, 276 (1964).

Censorship era

From the late 1800s to the mid-1900s, various laws restricted speech in ways that are today not allowed, mainly due to societal norms. Possibly inspired by foul language and the widely available pornography he encountered during the American Civil War, Anthony Comstock advocated for government suppression of speech that offended Victorian morality. He convinced the government of New York State to create the New York Society for the Suppression of Vice, in 1873, and inspired the creation of the Watch and Ward Society in Boston in 1878. City and state governments monitored newspapers, books, theater, comedy acts, and films for offensive content, and enforced laws with arrests, impoundment of materials, and fines. The Comstock laws passed by Congress (and related state laws) prohibited sending materials through the U.S. mail that included pornography; information about contraception, abortion, and sex toys; and personal letters mentioning sexual activities. Regulation of American film by state and local governments was supplemented by the Motion Picture Production Code from to 1930 to 1968, in an industry effort to preempt federal regulation. The similar industry-backed Comics Code Authority lasted from 1954 to 2011.

Some laws were motivated not by morality, but concerns over national security. The Office of Censorship suppressed communication of information of military importance during World War II, including by journalists and all correspondence going into or out of the United States. McCarthyism from the 1940s to the 1950s resulted in the suppression of advocacy of Communism, and the Hollywood blacklist. This included some prosecutions under the Smith Act of 1940.

Modern view

As a result of the jurisprudence of the Warren Court in the mid-to-late 20th century, the Court has moved towards a baseline default rule under which freedom of speech is generally presumed to be protected, unless a specific exception applies. Therefore, apart from certain narrow exceptions, the government normally cannot regulate the content of speech. In 1971, in Cohen v. California, Justice John Marshall Harlan II, citing Whitney v. California, emphasized that the First Amendment operates to protect the inviolability of "a marketplace of ideas", while Associate Justice Thurgood Marshall cogently explained in 1972 that:

[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. [Citations.] To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' [Citation.]

Types of speech

Core political speech

This is the most highly guarded form of speech because of its purely expressive nature and importance to a functional republic. Restrictions placed upon core political speech must weather strict scrutiny analysis or they will be struck down. The primary exception to this would be within the context of the electoral process, whereby the Supreme Court has ruled that suffrage or standing for political office as a candidate are not political speech and thus can be subjected to significant regulations; such restrictions have been upheld in Buckley v. Valeo.

Commercial speech

Not wholly outside the protection of the First Amendment is commercial speech, which is speech that "propose[s] a commercial transaction", as defined by Ohralik v. Ohio State Bar Assn. in 1978. Such speech still has expressive value although it is being uttered in a marketplace ordinarily regulated by the state. In 1980, Central Hudson Gas & Electric Corp. v. Public Service Commission held that restrictions of commercial speech are subject to a four-element intermediate scrutiny. Sorrell v. IMS Health Inc. (2011) casts doubt upon whether commercial speech still exists as a distinct type of speech.

Expressive conduct

Expressive conduct, also called "symbolic speech" or "speech acts," is nonverbal conduct that intends to communicate a message. Examples include creating or destroying an object when performed as a statement (such as flag burning in a political protest), silent marches and parades intended to convey a message, clothing bearing meaningful symbols (such as anti-war armbands), body language, messages written in code, ideas and structures embodied as computer code ("software"), mathematical and scientific formulae, and illocutionary acts that convey by implication an attitude, request, or opinion.

Expressive conduct is recognized by federal court decisions as being protected under the First Amendment as a form of speech, although this is not expressly written as such in the document.

For example, seen in light of the First Amendment, computer code is a way to speak about how a problem is solved, using the precise terms a computer might be given as directions, and flag burning is a way to speak or express forcefully of one's views opposing the acts or political position of the relevant country. Significantly, the possibility exists for a single speech act to be protected or not depending upon context and intention. For example, there may be a First Amendment distinction between burning a flag in protest and the same act performed as mere wanton vandalism.

Vague and meaningless speech

Some expressions have an ambiguous, difficult to articulate, unintended, or indiscernible meaning. These include instrumental music, abstract art, and nonsense. These are generally included in protected "speech", but some of the justifications for doing so do not apply. In the 1995 decision Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, the U.S. Supreme Court affirmed that the art of Jackson Pollock, the expressionist music of Arnold Schoenberg, and the semi-nonsense poem Jabberwocky are protected. This stands in contrast to, for example, Nazi Germany, which banned what it called "degenerate art" and "degenerate music".

In the 2010 decision Kleinman v. City of San Marcos, the U.S. Fifth Circuit noted a number of cases where artistic expressive elements were mixed with non-speech elements (such as an artistically painted junked car or clothing decorated with graffiti art). In each case, the courts chose to apply full First Amendment protection, but used intermediate scrutiny and upheld the content-neutral government regulations at issue (e.g. no junked cars displayed on public roads, time and place restrictions on sidewalk vendors).

In the case Morse v. Frederick, the defendant claimed the slogan "BONG HiTS 4 JESUS" intended to provoke amusement or disgust but not advocate anything, but the Supreme Court ruled it could be punished under the school speech doctrine because a reasonable person could interpret it as advocating illegal drug use (which was against school policy).

Types of speech restrictions

The Supreme Court has recognized several different types of laws that restrict speech, and subjects each type of law to a different level of scrutiny.

Content-based restrictions

Content-based restrictions "are presumptively unconstitutional regardless of the government’s benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech." Restrictions that require examining the content of speech to be applied must pass strict scrutiny.

Content-based restrictions can either discriminate based on viewpoint or subject matter. An example of a law regulating the subject matter of speech would be a city ordinance that forbids all picketing in front of a school except for labor picketing. This law would amount to subject matter discrimination because it favors one subject over another in deciding who it will allow to speak. An example of a law that regulates a speaker's viewpoint would be a policy of a government official who permitted ‘‘pro-life’’ proponents to speak on government property but banned ‘‘pro-choice’’ proponents because of their views would be engaged in ‘‘viewpoint discrimination.’’ Restrictions that apply to certain viewpoints but not others face the highest level of scrutiny, and are usually overturned, unless they fall into one of the court's special exceptions. An example of this is found in the United States Supreme Court's decision in Legal Services Corp. v. Velazquez in 2001. In this case, the Court held that government subsidies cannot be used to discriminate against a specific instance of viewpoint advocacy.

The Court pointed out in Snyder v. Phelps (2011) that one way to ascertain whether a restriction is content-based versus content-neutral is to consider if the speaker had delivered a different message under exactly the same circumstances: "A group of parishioners standing at the very spot where Westboro stood, holding signs that said 'God Bless America' and 'God Loves You,' would not have been subjected to liability. It was what Westboro said that exposed it to tort damages."

Time, place, and manner restrictions

The free speech zone at the 2004 Democratic National Convention

Grayned v. City of Rockford (1972) summarized the time, place, manner concept: "The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Time, place, and manner restrictions must withstand intermediate scrutiny. Note that any regulations that would force speakers to change how or what they say do not fall into this category (so the government cannot restrict one medium even if it leaves open another). Ward v. Rock Against Racism (1989) held that time, place, or manner restrictions must:

  • Be content neutral
  • Be narrowly tailored
  • Serve a significant governmental interest
  • Leave open ample alternative channels for communication

Freedom of speech is also sometimes limited to so-called free speech zones, which can take the form of a wire fence enclosure, barricades, or an alternative venue designed to segregate speakers according to the content of their message. There is much controversy surrounding the creation of these areas – the mere existence of such zones is offensive to some people, who maintain that the First Amendment makes the entire country an unrestricted free speech zone. Civil libertarians often claim that Free Speech Zones are used as a form of censorship and public relations management to conceal the existence of popular opposition from the mass public and elected officials.

Definition and early history

Time, place, and manner restrictions refer to a legal doctrine enforced under the United States Constitution and Supreme Court. The Merriam-Webster Dictionary defines time, place, and manner restrictions as "[A] restriction on the time, place, or manner of expression that is justified when it is neutral as to content and serves a significant government interest and leaves open ample alternative channels of communication. The goal of time, place and manner restrictions is to regulate speech in a way that still protects freedom of speech.

While freedom of speech is a fundamental right, it is not absolute, and therefore subject to restrictions. Time, place, and manner restrictions are relatively self-explanatory. Time restrictions regulate when expression can take place; place restrictions regulate where expression can take place; and manner restrictions regulate how expression can take place. A restriction may occur if someone is protesting loudly in front of someone's house in a neighborhood in the middle of the night, or if someone was sitting in the middle of a busy intersection during rush hour, for example. These actions would cause problems for other people, so restricting speech in terms of time, place, and manner addresses a legitimate societal concern. Restricting this speech would be constitutional because the restrictions are content neutral, meaning they would restrict anyone from saying anything in these situations, no matter what their message is; they are narrowly drawn, meaning the restriction was examined specifically for the case in question to determine how to serve the governmental interest at stake; the restrictions serve a significant governmental interest, meaning other fundamental rights are important to citizens, such as sleeping peacefully at night or people getting to work or home from work; and there are plenty of alternative methods of communicating their message, such as writing an editorial in the paper or moving to the sidewalk at a different time in the day.

One of the earliest mentions of the principle of time, place, and manner restrictions comes in the Cox v. Louisiana (1965) case. Justice Goldberg delivered the opinion and stated, "From these decisions, certain clear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time." From this, the United States Supreme Court doctrine of time, place, and manner restrictions emerged.

Time, place, and manner restrictions and the First Amendment

The First Amendment of the United States Constitution declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." It is easy to mistakenly interpret the First Amendment as granting people the right to say whatever they want, whenever, and wherever they want. However, the United States Supreme Court has interpreted that the First Amendment was never intended to provide such power, because it does not protect speech at all times and in all places. The Court has consistently ruled that the government has the power to impose limits on free speech in regard to its time, place, and manner of delivery. As noted in Clark v. Community for Creative Non-Violence (1984), "... [time, place, and manner] restrictions ... are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." These restrictions are proved constitutional time and time again, in many Supreme Court cases. It is important to understand the limits to the protection of freedom of speech by learning about time, place, and manner restrictions.

Public forum doctrine

Time, place, and manner restrictions are often linked with the public forum doctrine. The Supreme Court has established three types of forums: traditional public forums, designated forums, and nonpublic forums.

Traditional public forums include public areas, such as parks and sidewalks. These areas have the strongest protections under the First Amendment. Although, traditional public forums are still subject to traditional time, place, and manner restrictions, meaning restrictions must be content-neutral, serve a significant governmental interest, and allow for ample alternatives. As noted in United States Postal Service v. Council of Greenburgh Civic Associations (1981), "The First Amendment does not guarantee access to property simply because it is owned or controlled by the government." Justice Marshall in Grayned v. City of Rockford (1972), also noted something similar, saying "The crucial question is whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time." The power of restriction has been seen in many cases, such as in The City of Chicago v. Alexander (2014) case when the Occupy movement was restricted because the park was closed and they were not allowed to protest there during that time. Nevertheless, speech cannot be discriminated against because of the views of the speaker, or the content of their speech. These are generally called View-Point and Content-Based Limitations. Some people argue that time, place, and manner restrictions are relied on too heavily by free speech doctrine, resulting in less free speech allowed in public forums. This view is highly contested. Other people, such as Justice Pierce, who delivered the opinion in The City of Chicago v. Alexander (2014), argue restrictions are only meant to defer speech, in order to limit problems that are put on society.

A designated forum is usually public property the government opens for public expression, such as theatres and state schools. The difference between traditional public forums and designated public forums is in a designated public forum the government may limit access to the area to only certain groups, speakers, or subjects, so long as their rules are consistent. Designated public forums are subject to the same restrictions as traditional public forums, meaning the time, place, and manner restrictions must be content-neutral, serve a governmental interest, and allow ample alternatives. Restrictions in a designated forum can be seen in cases such as Widmar v. Vincent (1981) and City of Madison Joint School District v. Wisconsin PERC (1976).

Nonpublic forums include airport terminals and internal mail systems. In these areas the government has significant control over the speech they allow in these forums because the government acts like a private owner here. This means the government may restrict any speech, as long as the restrictions are reasonable, and do not come in to play because a public official wants the speech restricted. Therefore, content may be restricted because of the subject or the speaker. However, the restrictions must align with the purpose of the area and be viewpoint neutral. This doctrine has been applied to cases such as Perry Education Association v. Perry Local Educators' Association (1983) and Hazelwood School District v. Kuhlmeier (1988).

Time, place, and manner restrictions in Supreme Court decisions

Time, place, and manner restrictions are intended to allow convenience and order to prevail. Some examples of time, place, and manner cases include: Grayned v. Rockford (1972), Heffron v. International Society for Krishna Consciousness, Inc. (1981), Madsen v. Women's Health Center (1994), and recently Hill v. Colorado (2000). As you can see, most time, place, and manner cases involve the government as one of the parties in the case.

Because time, place, and manner restrictions put value on convenience and order, there is certain behavior that is not permitted. For example, you cannot yell "fire" in a crowded place when there is no fire. This action would cause an uproar of chaos, and has the potential to cause immediate harm to others. For those reasons, this action would not qualify as a protected right under the First Amendment. As Justice Holmes put it in Schenck v. United States (1918), "Even the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic." While free speech is important in our society, there are other values in our society that are equally important, such as public order and public peace. The role of time, place, and manner restrictions must be balanced with conflicting values in our society.

It is important to understand how judges and other governmental entities decide what speech to limit in regard to time, place, and manner. As previously stated, in order for the Supreme Court and other governmental entities to impose time, place, and manner restrictions, they must decide that the restrictions are content neutral, narrowly tailored, serve a significant governmental interest, and allow other alternative methods of communication. If the restrictions can pass these four requirements, they will align with the First Amendment restriction provisions. Of course, these restrictions will vary from case to case. Ideally, suppressing speech is considered wrong, but in some cases, it is necessary to restrict speech for the greater good of society. It must be decided that the speech is a nuisance in regard to its time, place, or manner of delivery, such as creating a clear and present danger. If there is a problem with the time, place, or manner of delivery of the speech, Congress has the right to limit such speech.

Recent time, place, and manner case: Chicago v. Alexander

As noted in The City of Chicago v. Alexander (2014), "The [F]irst [A]mendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired. A state may therefore impose reasonable restrictions on the time, place or manner of constitutionally protected speech occurring in a public forum." It is permitted to restrict speech in terms of time, place, and manner, so long as there are ample alternatives available. The ample alternative provision can cause confusion for those trying to understand time, place, and manner restrictions. What qualifies as an acceptable alternative? An alternative does not need to be the first choice of a way to communicate, nor does it need to be the same method of communication. That is, if the original method of communication was vocal, an acceptable alternative could be written. In fact, an ample alternative does not even have to reach the same audience as the original speech. In the case of The City of Chicago v. Alexander (2014), an ample alternative to protesting in Grant Park after hours could have been to protest on the sidewalk across the street, or to protest in the morning in the park when it reopened. It is important to remember that time, place, and manner restrictions are not intended to restrict the content of what is being said, instead they restrict when, where, or how the message is being communicated.

As The City of Chicago v. Alexander (2014) case pointed out, in United States v. O'Brien (1968) the court created a test for the content neutral provision. The O'Brien (1968) court declared, "... a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest.[33]" Content neutrality is an essential provision to meet because if a law lacks content neutrality due to targeting a particular viewpoint or means of expression, it will often violate other constitutional principles, such as the equal protection clause.[34] Expressing content neutrality is essential in successfully limiting speech through time, place, and manner restrictions in a public forum.

Incidental burdens on speech

See United States v. O'Brien.

Prior restraint

If the government tries to restrain speech before it is spoken, as opposed to punishing it afterwards, it must be able to show that punishment after the fact is not a sufficient remedy, and show that allowing the speech would "surely result in direct, immediate, and irreparable damage to our Nation and its people" (New York Times Co. v. United States). U.S. courts have not permitted most prior restraints since the case of Near v. Minnesota in 1931. However, the 1988 case of Hazelwood v. Kuhlmeier was argued to be a means of prior restraint due to a school principal eliminating content and topics from the school newspaper that was written by students at Hazelwood East High School in St. Louis, Missouri. The U.S. Supreme Court deemed the school was not in violation of students' first amendment rights because the paper was sponsored by the school that upheld rules and regulations about inappropriate articles.

Despite this strong position against prior restraint, numerous laws have been enacted at the state level that restrict a doctor's speech on politically charged issues such as abortion, gun safety and industrial chemicals.

Exclusions

Falsehoods

Laws against commercial fraud, counterfeit currency, and perjury have been upheld within certain limits, but some false statements of fact have been protected.

Inciting imminent lawless action

Speech that incites imminent lawless action was originally banned under the weaker clear and present danger test established by Schenck v. United States, but this test has since been overturned by the imminent lawless action test established in Brandenburg v. Ohio.

Fighting words

Inflammatory words that are either injurious by themselves or might cause the hearer to immediately retaliate or breach the peace. Use of such words is not necessarily protected "free speech" under the First Amendment.

True threats

See Watts v. United States, Virginia v. Black.

Obscenity

Obscenity, defined by the Miller test by applying contemporary community standards, is a type of speech which is not legally protected. It is speech to which all the following apply: appeals to the prurient interest, depicts or describes sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value. (This is usually applied to more hard-core forms of pornography.)

The 1998 Anti-Obscenity Enforcement Act in Alabama applies to sex toys. The similar 1973 Texas obscenity statute (updated in 2003) was declared unconstitutional in 2008.

Child pornography

See New York v. Ferber.

Torts

Defamation

Limits placed on libel and slander attach civil liability and have been upheld by the Supreme Court. The Court narrowed the definition of libel with the case of Hustler Magazine v. Falwell made famous in the movie The People vs. Larry Flynt. New York Times Co. v. Sullivan established the actual malice standard, a high bar for public figure plaintiffs. Making false statements in "matters within the jurisdiction" of the federal government is also a crime.

Invasion of privacy

See Time, Inc. v. Hill.

Intentional infliction of emotional distress

See Hustler Magazine v. Falwell, Texas v. Johnson.

Political spending

Campaign contributions

See Buckley v. Valeo and McCutcheon v. Federal Election Commission.

Independent political expenditures

See Citizens United v. Federal Election Commission

Government speech

The government speech doctrine establishes that the government may censor speech when the speech is its own, leading to a number of contentious decisions on its breadth.

Public employee speech

Statements made by public employees pursuant to their official duties are not protected by the First Amendment from employer discipline as per the case of Garcetti v. Ceballos. This applies also to private contractors that have the government as a client. The First Amendment only protects employees from government employers albeit only when speaking publicly outside their official duties in the public interest Pickering v. Board of Ed. of Township High School Dist., updated and clarified by Lane v. Franks. Speech is not protected from private sector disciplinary action.

A number of cases consider speech related to or required by an employer, or speech retaliated against by a third party such as an employer. The case Lane vs. Burrows (previously Lane vs. Franks) considers a number of these matters and summarizes the outcome. A person who testifies in a court, and where that testimony is not part of their employment duties, testifies as a citizen and has First Amendment protection, whereas a person whose speech is an actual part of their duties and is not merely related to their duties may have no such protection.

The issues raised in such cases include the overriding need for persons in court to feel safe to speak the truth, and to in fact speak the truth; the requirement of employers to be able to act if an employee speaks in a manner damaging to the employer; the rights of whistleblowers; the benefit to society if people who know the reality of a matter and are well informed of it, are able to speak of it.

Student speech

Original "BONG HITS FOR JESUS" banner now hanging in the Newseum in Washington, D.C.

In Tinker v. Des Moines Independent Community School District (1969), the Supreme Court extended broad First Amendment protection to children attending public schools, prohibiting censorship unless there is "substantial interference with school discipline or the rights of others". Several subsequent rulings have affirmed or narrowed this protection. Bethel School District v. Fraser (1986) supported disciplinary action against a student whose campaign speech was filled with sexual innuendo, and determined to be "indecent" but not "obscene". Hazelwood v. Kuhlmeier (1988) allowed censorship in school newspapers which had not been established as forums for free student expression. Guiles v. Marineau (2006) affirmed the right of a student to wear a T-shirt mocking President George W. Bush, including allegations of alcohol and drug use. Morse v. Frederick (2007) supported the suspension of a student holding a banner reading "BONG HiTS 4 JESUS" at a school-supervised event which was not on school grounds. In Lowry v. Watson Chapel School District, an appeals court struck down a school dress code and literature distribution policy for being vague and unnecessarily prohibitive of criticism against the school district.

Such protections also apply to public colleges and universities; for example, student newspapers which have been established as forums for free expression have been granted broad protection by appeals courts.

National security

Military secrets

Publishing, gathering, or collecting national security information is not protected speech in the United States. Information related to "the national defense" is protected even though no harm to the national security is intended or is likely to be caused through its disclosure. Non-military information with the potential to cause serious damage to the national security is only protected from willful disclosure with the requisite intent or knowledge regarding the potential harm. The unauthorized creation, publication, sale, or transfer of photographs or sketches of vital defense installations or equipment as designated by the President is prohibited. The knowing and willful disclosure of certain classified information is prohibited. The unauthorized communication by anyone of "Restricted Data", or an attempt or conspiracy to communicate such data, is prohibited. It is prohibited for a person who learns of the identity of a covert agent through a "pattern of activities intended to identify and expose covert agents" to disclose the identity to any individual not authorized access to classified information, with reason to believe that such activities would impair U.S. foreign intelligence efforts.

In addition to the criminal penalties, the use of employment contracts, loss of government employment, monetary penalties, non-disclosure agreements, forfeiture of property, injunctions, revocation of passports, and prior restraint are used to deter such speech.

Inventions

The Voluntary Tender Act of 1917 gave the Commissioner of Patents the authority to withhold certification from inventions that might harm U.S. national security, and to turn the invention over to the United States government for its own use. It was replaced in 1951 with the Invention Secrecy Act which prevented inventors from publishing inventions or sharing the information. Both attached criminal penalties to subjected inventors. The United States was under a declared state of emergency from 1950–1974, after which peacetime secrecy orders were available.

The government issued between approximately 4,100 to 5,000 orders per year from 1959 to 1974, a peak of 6,193 orders in 1991, and approximately 5,200 per year between from 1991 to 2003. Certain areas of research such as atomic energy and cryptography consistently fall within their gamut. The government has placed secrecy orders on cold fusion, space technology, radar missile systems, and Citizens Band radio voice scramblers, and attempts have been made to extend them to optical-engineering research and vacuum technology.

Nuclear information

The Atomic Energy Act of 1954 automatically classifies "all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy". The government has attempted and failed to prohibit publication of nuclear information, including bomb design, in Scientific American in 1950 and The Progressive in 1979.

Weapons

Pub.L. 106–54 (text) (pdf) of 1999, a bill focused on phosphate prospecting and compensation owed to the Menominee tribe, added 18 U.S.C. § 842(p) making it an offence "to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction" either intending or knowing that the learner/viewer intends "that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence". This is in addition to other federal laws preventing the use and dissemination of bombmaking information for criminal purposes. The law was first successfully used against an 18-year-old anarchist in 2003, for distribution of information which has since been republished freely.

Private actors, private property, private companies

Despite the common misconception that the First Amendment prohibits anyone from limiting free speech, the text of the amendment only prohibits the US Congress (and, by extension, those that derive their powers from Congress) from doing so. A major issue in freedom of speech jurisprudence has been whether the First Amendment should be interpreted to merely run against state actors, or whether it can run against private actors as well. Specifically, the issue is whether private landowners should be permitted to use the machinery of government to exclude others from engaging in free speech on their property (which means balancing the speakers' First Amendment rights against the Takings Clause). The right of freedom of speech within private shopping centers owned by others has been vigorously litigated under both the federal and state Constitutions, most notably in the cases Lloyd Corp. v. Tanner (1972) and Pruneyard Shopping Center v. Robins (1980).

Some observers have decried an erosion of free speech due to widespread use of the Internet and social media, which has allowed large groups of people who disapprove of particular speech have been able to swarm upon certain speakers and harass them with death and rape threats, send SWAT teams by making false reports to police, trigger boycotts of businesses, and in at least one case motivate a shooting. Targets have included a Massachusetts businessman who was seen in a photo apparently supporting Donald Trump, female video game designers and commentators, a diner where an anti-Trump employee made a negative comment to a pro-Trump customer, a public relations executive who tweeted an offensive joke before boarding a plane, and even victims of the 2017 Las Vegas shooting accused by anti-gun-control activists of faking the event.

Censorship

While personal freedom of speech is usually respected, freedom of press, and mass publishing meet with some restrictions. Some of the recent issues include:

See also Roth v. United States

In 2002, the United States was ranked 17th of 167 countries in the annual worldwide Press Freedom Index of Reporters Without Borders. "The poor ranking of the United States (17th) is mainly because of the number of journalists arrested or imprisoned there. Arrests are often because they refuse to reveal their sources in court. Also, since the September 11 attacks, several journalists have been arrested for crossing security lines at some official buildings." In the 2006 index the United States fell further to 53rd of 168 countries; indeed, "relations between the media and the Bush administration sharply deteriorated" as it became suspicious of journalists who questioned the "War on Terrorism". The zeal of federal courts which, unlike those in 33 U.S. states, refuse to recognize the media's right not to reveal its sources, even threatened journalists whose investigations did not pertain to terrorism. The United States improved, moving up to 48th place in 2007, however, and to 20th in 2010. In the following years, the rank again declined, placing the United States 45th in 2020.

Internet speech, online forums

Internet access has changed how people communicate across the world and has opened new opportunities for Americans to express their First Amendment rights. Internet speech takes place in a digital environment where both speakers and listeners can participate via computers, smart phones, and other electronic devices and are able to network and communicate with anyone at any time.

"Think Before You Type"

Governments have offered many proposals to privately controlled online platforms for regulatory rules that can be enacted to ensure users' First Amendment rights are upheld on the Internet. If these regulations are infringed upon, the platform has the right to remove content that is copyright material or is offensive. Laws that regulate online harassment, defamation, etc. face a delicate balancing act. Most online content, as such, limits risk by suppressing adult speech as well. They must be written narrowly to avoid encroaching on speech protected by the First Amendment while still restricting the undesirable conduct in practice.

The International Covenant on Civil and Political Rights (ICCPR) provides international protection for free speech and other human rights, but includes the strict clause that ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’. Discrimination and hate speech of any kind is not tolerated according to this clause and also applies to online forums. Laws that apply this clause to the monitoring of online harassment, defamation, etc. require a delicate balancing act. They must be written narrowly enough to avoid encroaching on speech protected by the First Amendment while still restricting the undesirable conduct in practice.

In a 9–0 decision, the Supreme Court extended the full protection of the First Amendment to the Internet in Reno v. ACLU, a decision that struck down portions of the 1996 Communications Decency Act, a law that prohibited "indecent" online communication. The court's decision extended the constitutional protections given to books, magazines, films, and spoken expression to materials published on the Internet. Congress tried a second time to regulate the content of the Internet with the Child Online Protection Act (COPA). In 2002, the Supreme Court again ruled in American Civil Liberties Union v. Ashcroft that any limitations on the Internet are unconstitutional.

In United States v. American Library Association (2003), the Supreme Court ruled that Congress has the authority to require public schools and libraries receiving e-rate discounts to install content-control software as a condition of receiving federal funding. The justices said that any First Amendment concerns were addressed by the provisions in the Children's Internet Protection Act that permit adults to ask librarians to disable the filters or unblock individual sites.

In Facebook v. Sullivan, a supporter of a neo-Nazi rally in Charlottesville, V.A., ran over and killed a peaceful protester against the rally and later wrote on Facebook about his attack with pride. The social media platform took down his profile and any posts related to this attack that portrayed it in any other way besides tragic. Even though Facebook is not bound by the First Amendment, the platform has regulations of its own based on preserving free expression but also omitting harmful speech.

Introduction to entropy

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