The censorship wars have only just begun

June 27, 2011, was a red-letter day for a generation of video game fans. After years of argument, the U.S. Supreme Court struck down a California law banning the sale of “mature”-rated games to minors — declaring that one of the youngest art forms of the new millennium deserved the First Amendment’s full protection. The decision, made just over a decade ago, felt like one step in a steady march toward unprecedented opportunities for artists.

In the 1990s and early 2000s, the Supreme Court reversed speech crackdowns on the nascent web, including key pieces of the Communications Decency Act that restricted online sexual content. Politicians and courts had a waning appetite for dubbing music, films, and games out of bounds. Online publishing eroded the power of soft gatekeepers like Walmart and theater chains, which could scuttle the sales of explicit songs and unrated movies, and crowdfunding offered a path to put niche media into the world.

But the path forward these days looks increasingly perilous. The web platforms that transformed art have created their own rules and incentives, shaping what people see online. A broad activist push is trying to pull books from schools, libraries, and sometimes commercial bookshelves. A series of new laws could make that even easier. And America’s highest courts have proven willing to put even long-settled principles up for grabs.

In 2021, the American Library Association reported 729 complaints about attempts to banish books from libraries, the highest number in its 20 years of record-keeping. The efforts were concentrated around books dealing with gender identity, sexuality, and race or racism, and while many of them played out against a backdrop of local politics, they were fueled by a nationwide political campaign. They’re also not slowing down: Deborah Caldwell-Stone, director of the ALA’s Office of Intellectual Freedom, says that 2022 surpassed the previous year’s count by November.

Local fights have been paired with state-level laws designed to lock down libraries and classroom curricula. Florida passed the Stop WOKE Act, one of numerous recent attempts to keep supposedly repellent material away from schools, with language some university professors feared would ban readings about segregation and genocide. Missouri’s Senate Bill 775 criminalizes showing many visual depictions of sex in private or public school materials.

“This campaign to censor books dealing with gender identity, sexual orientation, race, racism — we’ve not seen such a coordinated effort ever,” says Caldwell-Stone. ”I guess we could go harking back to the McCarthy-era attack on materials believed to be communicating a message about socialism or communism. But it’s almost the same.”

The ramifications are much greater than a few books missing from school shelves. Public libraries aren’t just visited by children, and in addition to lending books and films, they’re portals to the web for many people. “The whole idea of public libraries is to equip individuals to learn for themselves what they believe,” Caldwell-Stone says. And when librarians have pushed back on restrictions, they’ve faced harassment or specious criminal complaints. In some cases, that’s led to communities at least temporarily losing their libraries altogether. State laws like Missouri’s threaten to dramatically up the ante.

Some courts have struck down legal attacks on speech. A judge blocked the Stop WOKE Act in a blistering opinion rife with comparisons to George Orwell’s 1984. A Virginia court threw out an attempt to ban Barnes & Noble from selling two books via an obscure state obscenity law, albeit after initially letting the case move forward. Texas courts were unimpressed when a local official prosecuted Netflix for letting viewers stream Cuties, a French coming-of-age film.

But there’s also cause for concern. A Texas appeals court upheld an internet moderation law with startling implications for speech, and the Supreme Court blocked it with a slim five-to-four majority. At least two justices have called to reevaluate the standard for libel, making it dramatically easier for public figures to sue over negative press coverage. Earlier this year, the Supreme Court threw out decades of legal precedent in overturning Roe v. Wade, something that could bode ill for all kinds of supposedly settled legal doctrines.

These book-banning efforts are concentrated among Republican activists and lawmakers. But Democrats have floated misinformation bans and anonymity-threatening child safety bills that could also chill speech for years to come. Both parties have backed the Kids Online Safety Act, which is meant to protect children from seeing harmful material — but could also lock them out of sex education or LGBTQ resources. Governments worldwide are placing bans on “fake news” that threaten the liberty of the press, and some are pushing for rules that would let them pressure websites into taking down even legal content.

“I think it’s inevitable we’ll see more legislative attacks on the legal foundations of online free speech from both Democrats and Republicans in the U.S. and political parties in other countries,” says Evan Greer, director of digital human rights organization Fight for the Future. “It’s been steadily increasing, and I would argue maybe even exponentially increasing, over the last couple of years.”

Many of these efforts have been fueled by the rise of social media, which has offered ordinary people a megaphone that puts speech law under intense strain. Even as that’s happened, though, the web itself has undergone a transformation. Users have concentrated inside a handful of private social networks that play a huge role in what people can say — and how they say it.

Social networks can (and to avoid being overrun by spam and harassment, effectively have to) ban speech that doesn’t violate the law. But even if this isn’t legal censorship, it shapes culture in meaningful and sometimes bizarre ways. TikTok, which has recently exploded as the social giants of the ’10s have stagnated, is defining how a new generation of creators talks — giving rise to a bowdlerized slang dubbed algospeak to avoid its supposed bans on words ranging from “kill” to “lesbian.”

Some algospeak is tongue-in-cheek, but that doesn’t make it trivial. “The rules that these very large platforms set have an impact on what gets seen and heard, but also an impact on what people perceive as OK,” says Greer. And increasingly, that means rules against depicting or discussing sexuality and human bodies, a taboo that artists once fought to end. Most major social networks have bans on pornography, and they often define that category loosely, sometimes including nearly any nudity outside some narrow exceptions. “People have grown up in an internet where if you see a pair of breasts, you’re like, Whoa, I’ve ended up in the wrong place.”

Even when platforms want a more liberal policy, they face ostracism by payment processors and mobile app stores, which increasingly play the kind of gatekeeping role retailers once occupied. Tumblr head Matt Mullenweg laid out the situation starkly earlier this year, explaining why Tumblr wasn’t lifting its “porn ban” — a set of rules that purged queer and body-positive blogs, among other material, from the site in 2018. “No modern internet service in 2022 can have the rules that Tumblr did in 2007,” lamented Mullenweg. “You’d need to be web-only on iOS and sideload on Android, take payment in crypto, have a way to convert crypto to fiat for business operations without being blocked, do a ton of work in age and identity verification and compliance so you don’t go to jail, protect all of that identity information so you don’t dox your users, and make a ton of money.”

But if there’s hope for a more open future, it’s that the state of speech has rarely changed faster. TikTok’s worldwide launch was less than five years ago. The recent surge of library book bans is even newer. Twitter, which has played a huge role in shaping political discourse over the past decade, is undergoing an overhaul that’s driven many users to smaller independent platforms like Mastodon. These platforms are facing their own moderation challenges, but they offer the next decade an alternative to the past decade’s centralized control. “I don’t know that anyone can predict what happens next,” says Greer.

And Caldwell-Stone believes that when people understand the stakes of speech battles, they get involved — and usually not on the side of censors. “I think that’s where the change has to come. It’s to encourage everyone to realize that what happens in the community is important. That even the library board election is important. That voting for a county commissioner who appoints your library board and school board is in part knowing what their agenda is and what they support. And what they should be supporting is the ability of everyone to make their own choices,” she says. “It’s not the role of the government to tell people what to think.”