Is censoring media, eg. music, unconstitutional? Tell me if my reasoning is correct:

A band, let's say Cannibal Corpse, records a disturbing, obscene song called "Edible Autopsy." The FCC, which is a government organization, says that this song cannot be played on the radio anywhere, at any time, for any reason whatsoever. Doesn't our constitution tell us that our ideas/art/whatever CANNOT be censored or banned by the government?

For the quick answer. "obsenity" is not Constitutionaly protected speech.
So yes it can be censored.

Miller v California
--obscenity-pornography case
--tries to narrow the definition of what is obscene.
--State needs to look at 3 factors a) reasonable person would view material as prurient. b) whether lacks any political, scientific, artistic, or literary purpose . c) patently offensive under the law prohibiting obscenity

Its called the "Miller" test.

Ok, thanks, so I guess that song could probably be considered "obscene." But here's another example:

"Ticket To Ride" by The Beatles was banned on the radio after 9/11. This song contains nothing whatsoever that could be obscene, violent, or offensive. Is it constitutional to ban this song?

I'm sorry but I have never heard that it was ever banned.
I'm going to need more and specific details. You do understand that a radio station can say "hey, I don't like this song and I am never going to play it." A owner of a station can say, "I'm not playing any long haired hippy or hippity hoppy pinko liberal songs"
It only becomes a constitutional question when there is State action to regulate speech.
So, if this song was "banned" because the station decided to, well then there ya go, no constitutional problem.

Ahh, ATS is screwing up. I typed a nice long reply to that, but basically, have any songs not deemed obscene been banned from the radio?

The FCC was established by act of Congress, so the first amendment is clearly within scope when determining the legality of its actions.

Originally posted by Res Ipsa
It only becomes a constitutional question when there is State action to regulate speech.

Small quibble: the 1st amendment says "Congress shall make no law... abridging the freedom of speech", thus only refers to one specific branch of the Federal government. It's ambiguous whether you meant 'State' action to refer to any action of the Federal government, or State (as in, non-Federal) government. The prohibited abridgments may be direct or indirect; both are unlawful.

And, although I haven't researched it, the "Miller" test seems like a bad joke. "Constitutionaly protected speech", indeed! Sounds like deceptive hair-splitting to avoid the implications of the quite-clear 1st amendment. Thanks for the information you provided!

Edit to add: Wow, I just realized I'm being really pedantic. I need to relax and have I beer! I'm glad the weekend is coming up soon!


[edit on 5-6-2008 by Ian McLean]

State action means "any" government action, at any level.
I wasn't giving a lesson on the first amendment.
If the FCC bans something then you have your issue.
If it is a private actor, a business, a "radio station" then you don't have the issue.
Why did you want to go down the direct or indirect road on this topic?
Obsenity is not protected speech and I didn't make up the "Miller test"
Unless you know something more, it is still what the Courts use. No joke.

Originally posted by Res Ipsa
No joke.

Oh, I wasn't trying to contradict you -- as I noticed myself, I was just being picky and pedantic. As to the miller test being a 'bad joke', I meant that as my opinion of what the founders might have though about it (as a federal acid-test on 'free' speech), rather than questioning the legal existence of such doctrine.

no problem,
but to be clear, the Miller test is only used for obsenity and not for any other free speech issue. Commercial speech uses the Hudson test for example.

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.

If you want a constitutonally pure answer, then no forms of censorship are acceptable.

If you want a legal standpoint, then the Miller test has to be applied.

Originally posted by Res Ipsa
Why did you want to go down the direct or indirect road on this topic?

My point about "Congress shall make no law..." and direct or indirect infringement on free speech was the result of thinking: "Well, if the FCC is the one that censors, that's not Congress doing it, is it?", and then realizing that since the FCC was established and is enabled by Congress, the 'direct or indirect' clarification might need to be made. Since the Constitution doesn't limit the 1st to either specifically, both apply. So, acts of Congress that indirectly limit free speech are unconstitutional, too. After all, Congress quite often relies on other entities to enforce and apply its laws; they are its agents in that respect.

Not sure if there's a specific legal doctrine for this, but it only makes sense (to me, anyway!).

I think that's what I was trying to get at, but I'm not quite sure, lol. Basically, Congress is basically the government, and the FCC was put in place by them, so when they ban/censor music through the FCC, it's technically Congress doing it, so it's unconstitutional, right?

But Constitutional Freedom also meant the freedom to the Challenge and the Duel, which pretty much took care of blatantly offensive behaviour without the need for govt intervention.

En Garde'.

Originally posted by mr. wildflowers
I think that's what I was trying to get at, but I'm not quite sure, lol. Basically, Congress is basically the government, and the FCC was put in place by them, so when they ban/censor music through the FCC, it's technically Congress doing it, so it's unconstitutional, right?

Yeah I agree, it is confusing if we were talking pure unadluterated constitutionality but where it gets greasy is anytime you want to do something guaranteed under the US Constitutions Bill of Rights but have to apply for a License from the Government.

The Constitution clearly states that we have certain inalienable rights. Now to give these rights the distinction of something the Government could not take from us, they issue the supposition of a higher authority where the Document makes mention of this and yeilds to it in the verse "that are self evident endowed by our creator" among these rights are Life, Liberty, and the pursuit of happiness. Now where it gets more specific is in the list of amendments and one of them is the right to keep and bear arms. Or to paraphrase the current vernacular, the right to own and handle weapons (Guns)

Now this presents a problem for the Government in as much as it was truly an amazing document, it is up for much interpretation ie: what kind of weapons? GUNS? like Bazooka's? This can get very out of control so what the Government does is makes laws that effectively circumvent your constitutional rights by making you wave them inlieu of getting a required license for what ever they deem they need to control.

In the case of Guns, you get a license and now your right to own a gun becomes a privilege. You see a "right" is something they can't take from you but a privilege they can take away for you.

Getting a broadcast license is the same.

- Con