This chapter examines the question of prior restraints and other limitations to artistic freedom, pointing to the lack of a precise definition of ‘censorship’. Which grounds of prior restraint are legitimate or necessary under international law? is there an obligation for States to ban exhibitions such as Mirroring Evil: Nazi Imagery or the exhibition Ode to the Sea displaying artworks made by prisoners from Guantànamo Bay? When can States legitimately restrict artistic freedom? And how do international bodies draw the fine line between illegitimate censorship, legitimate restrictions and regulation? The chapter discusses the problem of artistic expressions inciting to hatred and other types of incitement (negationism, revisionism and Holocaust denial), in light of international standards. It further offers a more detailed approach to the methodology of human rights bodies in defining limitations to artistic freedom (and more broadly balancing conflicting interests), including the problem of artists’ ‘duties and responsibilities’. Finally, it examines the responsibility of non-State actors for human rights violations, if any, in the case of private exhibitions and events that incite to racism, hatred or misogyny, as well as similar issues arising in digital arts, on the web and social media platforms.

Radical political dissent on the right and left presented the Court with numerous problems. Overall, the Court developed a law of free expression that offered substantial protection to political dissidents. It invalidated a Minnesota statute authorizing courts to issue injunctions agains publication of liberlous material and a California statute banning display of the Communist red flag. It invalidated convictions of Communist organizers in Oregon and Georgia. And, protecting dissident news writers against political retaliation, it upheld the application of the National Labor Relations Act to the Associated Press and other news organizations.

This chapter explores the historical roots and purposes of the Free Speech and Freedom of the Press Clauses of the First Amendment. It shows that the most of the early conflicts in this area concerned press freedoms. Disagreements over these issues came to a head over the Sedition Act of 1798, which was used by the Federalist Party to jail its Republican opponents. Ultimately, out of this conflict the Republicans articulated a new model of citizenship, rooted in principles of popular sovereignty, which remains central to our system of government today. Freedom of speech, on the other hand, played a very limited role in early history. Regardless of its humble origins, however, the Framing generation agreed that Free Speech, like Freedom of the Press, was an essential element of democratic government. Unfortunately, these rights have often been ignored by our government and the judiciary during times of stress such as the Red Scare and the McCarthy era. Today, however, thanks to the influence of pioneering arguments by Justices Oliver Wendell Holmes, Jr. and Louis Brandeis, there is broad agreement that these rights are essential to democracy and so must be protected.