Confidential magazine “was the founder of tabloid, celebrity journalism in the United States, ” according to Professor Samantha Barbas. 

Confidential was ‘founder of tabloid journalism’

Directed by Robert Harrison, who was based in New York, the 1950s-era magazine focused on tearing down the carefully crafted images of Hollywood celebrities with salacious stories of infidelity, interracial affairs, and other matters. Stories were gathered from prostitutes, private detectives, and other informants. 

Although the magazine was frequently reviled, it was one of the most popular publications of its time.  Harrison mixed in public service articles with his more salacious stories to combat charges that he was simply dishing out smut.  Harrison hired attorneys Daniel Ross and Albert DeStefano to guard against crossing the line into pornography or libel.

California investigates reporting methods, leading to charges of conspiracy to publish libel

The film industry initially found that it could do little to protect itself. But the public became increasingly concerned about the possible tie between such magazines and the rise of juvenile delinquency and other social ills. 

Existing cases like Near v. Minnesota (1931) had established a strong presumption against prior restraint of such publications.  This did not stop the post office from trying to ban the distribution of some issues from the mail, nor did it stop state and local authorities from attempting to close down retailers who distributed the magazine.  Although some celebrities sued, most found that it was easier to ignore the magazine than to do so, especially in cases where the stories had a factual foundation.

In 1957, California established the Senate Interim Committee on Collections Agencies (the Kraft Committee), which focused on the magazine’s methods for gathering information.  This provided the impetus for grand jury charges that the magazine was engaged in a conspiracy to publish obscenity and libel. 

Confidential folds under weight of legal bills

Barbas, who wrote “The Most Loved, Most Hated Magazine in America: The Rise and Demise of Confidential Magazine,” says that the resulting trial was one of the most sensational of the decade.  Although the jury eventually deadlocked, beset by rising legal bills, Harrison eventually decided to settle for a plea bargain and a fine with the understanding that he would change the magazine’s format.  Soon thereafter, Harrison closed the magazine.

Barbas presents this case as a kind of cautionary tale about the manner in which publishers can be closed “not through official bans, postal restrictions, anti-scandal legislation, or criminal sanctions, but rather through the exhaustion and financial depletion” of the publisher (p. 189). 

She further notes that “[w]ithin a few years of the Confidential trial, the entire apparatus of official censorship was crumbling” (p. 190). 

The Supreme Court further liberalized libel law in New York Times v. Sullivan (1964). 

John Vile is professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2017.

Send Feedback on this article

As the title suggests, the book Hit Man: A Technical Manual for Independent Contractors is a how-to guide for those seeking to pursue a career as murderers for hire. It was written by Rex Feral, a pseudonym some believe belongs to a Florida woman, who originally wrote the book as a crime novel. The book was published by Paladin Press in 1983 and sold approximately 13,000 copies while it was on the market. It became the subject of two suits in federal court, both with First Amendment implications.

Perry used Hit Man manual to carry out murder

In 1993 James Perry murdered Mildred Horn; her eight-year-old son, Trevor, who was a quadriplegic; and Janice Saunders, Trevor’s nurse. Lawrence Horn, Mildred Horn’s ex-husband and Trevor’s father, had hired Perry to commit the murders with the expectation of inheriting the $2 million that Trevor received as a settlement for injuries. Perry, who had purchased a copy of Hit Man, executed the crime “by the book,” following its instructions to arrange his contract with Horn, select a weapon, construct a homemade silencer, and dispose of the bodies.

Publisher of manual viewed as aid in murder

The victims’ survivors filed a wrongful death action against Paladin Press in a Maryland federal court, alleging that the publisher had aided and abetted the murderer. The plaintiffs in the Maryland case were represented by Rodney A. Smolla, a First Amendment scholar.

District court said First Amendment barred plaintiff’s claims

Paladin stipulated that it intended the book to be used by criminals and would-be criminals and that it intended and had knowledge that the book would be used to execute the crime of murder for hire. Thus, the only issue was whether the First Amendment acted as a complete bar to the plaintiffs’ claims. The district court, using its interpretation of the Supreme Court’s opinion in Brandenburg v. Ohio (1969), held that the First Amendment barred the claims and entitled the publisher to immunity because Hit Man “merely advocates or teaches murder” and does not “incite or encourage” it.

Circuit court said book prepared people for ‘imminent lawless action’

The Fourth Circuit Court of Appeals reversed the lower court’s decision in Rice v. Paladin Enterprises, Inc. (4th Cir. 1997), stating that the district court had misinterpreted Brandenburg, a seminal decision in which the Supreme Court held that “the mere abstract teaching … of the moral propriety or even moral necessity for a resort to force and violence” is protected under the First Amendment, while actually “preparing” people for “imminent lawless action” is not protected speech.

Circuit court said First Amendment did not protect book from civil liability

The Fourth Circuit held that Hit Man fell within the latter category of speech, and consequently the First Amendment did not provide a bar to civil liability for aiding and abetting. The court cited a number of criminal aiding and abetting cases to support its reasoning. Many First Amendment advocacy groups, several of which wrote amicus curiae briefs on behalf of Paladin, criticized the decision as being inimical to freedom of speech.

Book’s information still remains at issue

Paladin was also sued in an Oregon federal court, in 2001, by the victims of an attempted contract murder for aiding and abetting and for conspiracy to commit murder. Like the Fourth Circuit, the Oregon court allowed the claims to go forward. The court held that although Paladin did not make the same stipulations that it did in Rice, it was clear from the book’s content and marketing that the publisher intended the book to be used in the commission of such crimes.

Both the Maryland and Oregon plaintiffs settled out of court with Paladin’s insurance company. Paladin agreed to stop selling the book as part of the Rice settlement, although used copies are still widely available on the Internet.

This article was originally published in 2009. Emilie S. Kraft is an administrative law judge in Birmingham, Alabama.

Send Feedback on this article

The Last Temptation of Christ, a movie directed by Martin Scorsese and based on the book by Nikos Kazantzakis, provoked public outcry and denunciation from some conservative Christian groups due to its controversial portrayal of the life of Jesus. Universal Studios publicly defended its showing as a matter of First Amendment rights.

Christian groups denounced the film for controversial portrayal of Jesus

In 1955, when Kazantzakis’s book was published, the Greek Orthodox Church excommunicated him, and the Catholic Church banned the book.

The 1988 film adaption depicts Jesus being tempted by Satan to disavow his messianic nature, take Mary Magdalene for his wife, and live like a normal man. One controversial scene shows the newly married Jesus and Mary Magdalene having sex. Further controversy centered on the depiction of Judas as ethically strong and devout.

Some cities enforced bans on the movie

Chief among organizations protesting the movie were the American Family Association and Campus Crusade for Christ (CCC). A boycott was called, and some theater chains refused to show the film. Bill Bright, founder of CCC, offered to buy all prints of the movie in order to destroy them. Universal Studios responded with an open letter in newspapers across the country stating it would not succumb to these protests and thereby infringe upon the First Amendment rights of Americans to see the film. The cities of Savannah, Georgia; New Orleans, Louisiana; Oklahoma City, Oklahoma; and Santa Ana, California, however, were able to enforce bans on the movie, and the movie rental chain Blockbuster refused to carry it.

This article was originally published in 2009. Thurman Hart is an Adjunct Instructor of Political Science at New Jersey City University.

Send Feedback on this article

Like its predecessor Deep Throat (1972), Gerard Damiano’s follow-up film The Devil in Miss Jones (1973) led to obscenity charges throughout the United States. Damiano’s films were key in the adult film industry’s quest to be treated as art protected by the First Amendment rather than as pornography, which can be deemed obscene and therefore prosecuted.

Convictions of filmmakers were overturned and obscenity statutes were struck down

Although many of the people involved in making and exhibiting The Devil in Miss Jones were arrested, tried, and sometimes convicted of violating federal, state, and local obscenity laws, their convictions were overturned on appeal and the obscenity statutes they were tried under were declared invalid on free speech grounds. For example, a Massachusetts obscenity law was struck down after litigation involving a theater owner’s showing of the film.

Like many adult films, this one was derived from an earlier movie: the 1941 RKO comedy The Devil and Miss Jones starring Jean Arthur and Charles Coburn. A number of respected film critics applauded Damiano’s version, despite its numerous explicit sex scenes. Still, Damiano’s success was largely driven by publicity generated from obscenity litigation. After The Devil in Miss Jones played in Memphis, Tenn., for example, Assistant U.S. Attorney Larry Parrish indicted everyone he could in connection with the film. Similarly, after a New York City court declared Deep Throat to be obscene and it was subsequently banned in twenty-three states, one of the film’s stars, Harry Reems, was indicted by Parrish and convicted of obscenity in federal court. But Reems, like the others who were prosecuted by Parrish, had their convictions overturned on appeal.

The Devil in Miss Jones spawned numerous sequels, none of which was as popular or critically acclaimed as the original—and none of which appears to have provoked obscenity suits.

This article was originally published in 2009. Artemus Ward is professor of political science faculty associate at the college of law at Northern Illinois University. Ward received his Ph.D. from the Maxwell School of Citizenship & Public Affairs at Syracuse University and served as a staffer on the House Judiciary Committee. He is an award-winning author of several books of the U.S. Supreme Court and his research and commentary have been featured in such outlets as the New York Times, Los Angeles Times, Associated Press, NBC Nightly News, Fox News, and C-SPAN.

Send Feedback on this article

The CIA and the Cult of Intelligence, the 1974 book by former Central Intelligence Agency employee Victor Marchetti and former State Department employee John D. Marks, was the first publication to be censored by the U.S. government prior to publication. Legal issues pitted the government’s interest in protecting national security against the right of former government employees and publishers to communicate classified or otherwise sensitive information.

Government stopped Marchetti from publishing secret CIA information

After Marchetti resigned from the CIA in 1969, he began publishing information acquired as a consequence of his work. Marchetti’s actions violated contractual secrecy agreements that he had signed as a condition of employment. In 1972 the U.S. government sought and secured an injunction against his publishing “secret information touching upon the national defense and the conduct of foreign affairs.”

For nearly a year, legal proceedings and injunctions delayed publication of The CIA and the Cult of Intelligence, a critique of the agency’s activities, alleging a preoccupation with covert operations at the expense of intelligence gathering. The government originally ordered 339 deletions of what it termed classified information. After negotiation with Marchetti’s lawyers, the CIA reduced its request to 168 deletions.

Marchetti challenged the government

In United States v. Marchetti (4th Cir. 1972) and Alfred A. Knopf v. Colby (4th Cir. 1975), the government argued that the primary issue centered on a contractual obligation, asserting that Marchetti had agreed to submit his work for prepublication review as a condition of employment. Marchetti claimed a First Amendment right to publish and a “need to know” for the public regarding CIA activities. He contended that enforcement of the secrecy agreement he had signed violated his First Amendment rights and constituted a prior restraint on expression. He also challenged the government’s classification system on the ground that government censors possessed virtually unlimited powers to classify documents and, therefore, to withhold from the public information vital to self-governance. The courts sided with the government.

Courts ruled that national security concerns trump freedom of communication

The issues raised in these proceedings resurfaced in subsequent disputes concerning prepublication agreements in connection with classified information in particular and government secrecy in general in Snepp v. United States (1980), Haig v. Agee (1981), and United States v. Morison (4th Cir. 1988). In all of these cases, the courts ruled that national security concerns trumped the rights of freedom of communication.

This article was originally published in 2009. Richard A. “Tony” Parker is an Emeritus Professor of Speech Communication at Northern Arizona University. He is the editor of Speech on Trial: Communication Perspectives On Landmark Supreme Court Decisions which received the Franklyn S. Haiman Award for Distinguished Scholarship in Freedom of Expression from the National Communication Association in 1994.

Send Feedback on this article

The Chocolate War, first published by Robert Cormier in 1974, remains a perennial favorite of censors and book banners. The book tells the story of a secret society, the Vigils, whose members manipulate and intimidate most students into following the gang’s dictates. A student who tries to stand up to the gang finds that the struggle against conformity has unfortunate consequences. Recognition and awards for The Chocolate War include being named an ALA Best Book for Young Adults, a New York Times Outstanding Book for Young Adults, and a School Library Journal Best of the Best.

Censors have tried to remove The Chocolate War from libraries

Although masterfully structured and rich in theme, The Chocolate War was the most challenged book of fiction in 1998. Specific challenges were raised concerning sexual content, offensive language, and violence. Censors have repeatedly tried to remove The Chocolate War from library shelves and the curriculum, but have been stymied by First Amendment–based rights of intellectual freedom and the right to read.

This article was originally published in 2009. Sharon L. Morrison was the Library Director at Southeastern Oklahoma State University.

Send Feedback on this article

Published in 1951, The Catcher in the Rye, J. D. Salinger’s Bildungsroman about sixteen-year-old Holden Caulfield, is one of the most controversial novels in recent U.S. history. Since the early 1960s, disputes over Catcher in the Rye have arisen in more than seventy communities across the United States.

School boards have restricted the novel for its profanity and content

In some instances, school boards banned the novel, while others removed it from school reading lists or “restricted” it, requiring students to obtain parental permission to read it. In Harris v. Mechanicville Central School District (N.Y. 1978), a high school English teacher was dismissed for insubordination when he refused to drop the book from his curriculum.

School boards and parent-teacher associations have been hostile toward the novel because of Holden’s profanity-laden speech and his sexual adventures following his expulsion from prep school. These include an episode with a pimp and a prostitute (with whom Holden does not have sex) and a visit to an old teacher, Mr. Antolini, who gets drunk and makes what Holden interprets as a sexual advance. In recent years, the novel has also been blamed for promoting alienation among students responsible for high-school shootings. Nevertheless, Catcher in the Rye is widely regarded as one of the most important contributions to American literature since the end of World War II.

This article was originally published in 2009. Simon Stern is Professor of Law and English at the University of Toronto.  He has published articles and book chapters on obscenity, copyright, criminal procedure, legal fictions, and the history of the common law.

Send Feedback on this article

The Birth of a Nation, perhaps one of the most controversial movies in U.S. history, premiered as The Clansman: An Historical Romance of the Ku Klux Klan in 1915 to be met with both rousing approval and indignant condemnation. Attempts to block the film were common, but resistance to such efforts during the early part of the twentieth century were not brought under the First Amendment. In fact, one of the first significant free speech cases did not appear until four years after the premiere—Schenck v. United States (1919). And it was not until the 1931 case of Near v. Minnesota that the Supreme Court considered the prior restraint concept in its First Amendment jurisprudence.

Film sparked the birth of the Second Klan

The film by producer and director D. W. Griffith was based on one volume of a racist trilogy written by former North Carolina Baptist minister Thomas Dixon Jr. ten years earlier. Depicting the Klan as a group of heroes “saving” the South from blacks and the “horrors” of Reconstruction,” the book, together with the film, sparked the birth of the so-called Second Klan. After the book’s and the movie-playbill’s portrayal of a hooded Klansman riding a hooded horse, with his left hand holding the reins of the horse and his right hand holding a burning cross above his head, the Klan, the movie, and cross burning became synonymous.

Censorship efforts blocked

Efforts to censor Birth of a Nation were in large part blocked using technicalities or some other existing substantive law. For example, in Wallace v. MacDonough Theater Co. (Cal. App. 1917), the plaintiffs failed to show any possibility of specific harm or that they had standing to complain of a public nuisance. In Epoch Producing Corp. v. Schuettler (Ill. 1917), the attempt to censor was declared void by the trial court on the ground—not raised on appeal—that the obscenity ordinance was void for vagueness. Somewhat of an exception was Bainbridge v. Minneapolis (Minn. 1915), which involved a theater that violated the city’s censorship order. The theater was, however, denied relief for the post-showing revocation of its license because a revocation was deemed to be within the mayor’s discretion.

Not only were attempts to censor the film generally unsuccessful, but it actually won some acclaim within the film industry. The film was included in the National Film Registry in 1993 and voted one of the “Top 100 American Films” in 1998 by the American Film Institute.

This article was published in 2009. Clyde E. Willis (1942-2017) worked an attorney for 25 years before starting a second career as a professor. He taught political science for 18 years at Middle Tennessee State University. He wrote the Student’s Guide to Landmark Congressional Laws on the First Amendment.

Send Feedback on this article

Derided by critics, excoriated by censors, but enjoyed by audiences, Oh! Calcutta! opened on Broadway on June 17, 1969,and closed on August 12, 1972. After its revival in 1976, it ran until 1989, logging a breathtaking 5,959 Broadway performances. The play inflamed some public officials, leading to censorship and First Amendment arguments.

The show was the brainchild of critic and social observer Kenneth Tynan. It featured the work of Samuel Beckett, Jules Feiffer, John Lennon, Sam Shepard, and Peter Schickele, among others.

Oh! Calcutta! used full frontal nudity

Whereas the play Hair was a work of political and social theater that included nudity, Oh! Calcutta! was intended as a light review centering on sex and eroticism. It was the first Broadway show to display full frontal nudity, but its goal was more to entertain than to stimulate thought or discussion. In his review of the original production of the show, Clive Barnes wrote for the New York Times: “There is no more innocent show in town—and certainly none more witless— than this little diversion.”

The play was banned in many cities, but enjoyed immense popularity

Barnes’s depiction of the inherent innocence of Oh! Calcutta! was not shared by all. The New York Daily News called the show “hard-core pornography.” Many cities, including Chattanooga and Cincinnati, even banned the show, and it was shut down by the Los Angeles vice squad after a single performance. Overseas, productions were banned in Australia but permitted in Israel in 1986 with the nudity intact (the producers did, however, tone down some of the play’s sexual content). Oh! Calcutta! also enjoyed long and successful runs in England and France. Despite its problems with censors, by 1987 Oh! Calcutta! had played in more than 250 cities worldwide and grossed $260 million. At home, Oh! Calcutta! was briefly the longest running show on Broadway.

Films of the performance were also censored

The play’s difficulties with censorship were not limited to the theatrical stage. In 1970 a performance of the show was videotaped at the off-Broadway Eden Theatre. The producer intended to show the video on a pay-per-view basis at movie theaters around the country. Although he made arrangements with about 250 theaters for such a showing, the producer was able to exhibit the video in only fifty theaters because of censorship issues. This filmed performance was released on video and later on DVD.

Ultimately, time and the mores of the day overtook Oh! Calcutta! In its later years, the show’s audience was made up primarily of foreign tourists seeking to participate in a piece of Broadway history. On opening night, creator Tynan told reporters that he was not “trying to make a revolution,” but Oh! Calcutta! did open farther the door cracked by Hair, and broke the path for the use of full nudity in future shows.

This article was originally published in 2009. Howard Leib is an intellectual property and entertainment attorney, an educator and a consultant with his own practice in both New York City and Ithaca, NY. He offers a full range of legal services, with specialties in entertainment, corporate, trademark and copyright law, including litigation. Leib also teaches both Entertainment Law and Music Law at Cornell’s College of Law.

Send Feedback on this article