censure (right)

                  censure (right)

1

PRESENTATION

censure (right), together enacted rules and measures taken by the State or a religious capacity tending to control, limit, even remove the freedom of expression.

2

HISTORY OF THE CENSURE

The history of the censure is very closely related to that of the political régimes of the States. Nevertheless, from time immemorial, the modes of expression of the thought, first of all in oral and theatrical form, then written and, finally, cinematographic, were more or less limited and always regulated, even in the liberal democracies.

Today, in France and in the majority of the Western companies, dedication of the principle of the freedom of expression prohibited to the legal systems to envisage modes of general censure or the application of penal sorrows for "offences of expression", even if specific authorization arrangements remain in certain cases.

2. 1

Censure in Antiquity

In Antiquity, Socrate, declared impious and culprit of corrompre youth, was condemned to drink the conium. Whereas the philosopher was regarded as an exemplary citizen, its death was decided because it was opposed to the generally accepted idea according to which the stars were divine or mysterious, demonstration of an independence of mind considered to be intolerable and dangerous in the Athenian company of  the IV ^E century. Before him, Anaxagore and Protagoras had already been condemned to the exile for offence of opinion.

The Roman company was on the other hand rather liberal concerning the freedom of expression and belief. The extent of the Roman Empire was such as this tolerance appeared necessary to preserve the Empire of the risks of rebellion or bursting. However, if the theatrical censure were removed at the end of the Republic, it was restored a little later and sometimes the Emperor was authorized to condemn certain authors, of which poets (like Ovide) or even of the politicians.

2. 2

Religious censure

In Europe, it is the emperor Constantin I ^er  the Large one which founded a mode of religious censure, reinforced by the emperor Théodose I ^er. Many works and manuscripts considered heretic by the Church were burned, and their worried or punished authors. However, it is especially starting from the introduction of the Enquiry to  the XIII ^E century that the religious censure took a turn systematic and savagely repressive. Special courts, called inquisitorial courts, were instituted, in particular in Spain, France and Italy; charged with repressing the crimes of heresy and sorcery, they did not hesitate to pronounce the hardest sorrows against the defendants.

With the discovery of printing works to  the XV ^E century, the censure was exerted in a preliminary way, subjecting the printers to an obligation of transmission of the manuscripts before impression. In Spain, for example, pragmatic royal of 1502 instituted a control of printing works, while the Enquiry was expressly charged to supervise the religious orthodoxy of the works. On the level of papacy, the council of Thirty founded the Index (1557), catalogues prohibited books, periodically updated, and which disappeared definitively only in 1966. The religious censure did not save the field of science, as the judgments testify some to Copernic (1616) and Galileo, constrained by the court of the Enquiry to abjure its theories in 1633.

To the XVII ^E century, the censure, primarily of religious origin, was not the subject of a systematic organization on behalf of the State. Admittedly, a monarch as Philippe III the Bold one had placed as of 1275 the booksellers under the control of the University, itself placed under the authority of the clerks, but in general the censure emanating of the royal capacity was circumstantial and very often appeared, in a company largely subjected to the religion, like a consequence of the interdicts emanating of the Church. One can see an application of this matter by considering France of  the XVII ^E century, where the theatre was subjected to an authorization arrangement; for this purpose, the prosecutor of the king supervised the repertory and could prohibit the representations likely to shock the religious feelings, which explains the censure which struck on several occasions the work of Molière. Thus  the Sanctimonious hypocrite  was it prohibits by the first president of the Parliament, Guillaume de Lamoignon, acting truly like the hand of the Church, while at the same time the king had allowed the first representations of this part. In addition, the clergy, in the person of the archbishop of Paris, Hardouin de Péréfixe, threatened of excommunication the witnesses who would present themselves at the entry of the spectacle.

2. 3

Censure of State

With the assertion of the absolutism, which endeavoured to organize and control the world of the letters, a true ideological censure came to be added, without always replacing, with the religious censure. Extremely significantly, it is into 1629 that Richelieu instituted the "privilege of the king", delivered under the authority of the Minister of Justice, which obtaining conditioned the publication of a book. All the books all and the gazettes were to be the subject of a preliminary authorization, which could be refused by the administration arbitrarily. There was a character directly in charge of these authorizations, the director of the Bookshop, with which returned the task to ensure the respect of the censure and whose capacities on the matter were immense.

After the reign of Louis XIV, who marked the top of the absolute monarchy, the reign of Louis XV does not live, as one could have expected it, a relaxation of the censure. Quite to the contrary, the slow diffusion of the spirit of the Lights and the effervescence of the intellectual movement during the fifty years preceding the French revolution were perceived like an immediate threat by the royal capacity and the Church. Thus, since 1742, the services of the director of the Bookshop were reorganized in a preoccupation with an effectiveness and accepted the permanent assistance of a body of soixante-dix-neuf civils servant, specialized by matter. If a work was published without the authorization of the director of the Bookshop, and was regarded as outrageant, of the continuations could be committed (Diderot was victim, which spent three months to Vincennes after the publication in 1749 of  the Letter on the blind men)  and the authors condemned to the banishment out of the kingdom of France (sanction which struck in particular the philosopher Mettrie in 1746), under the terms of a royal declaration of May 10, 1728, stating which would be punished "all the attacks with the royal authority, the religion or public peace". As for the printer of these prohibited works, it incurred the sorrows of the yoke or the galères. Certain works were thus continued and burned, like  the philosophical Letters  of Voltaire in 1735, the Emile  of Jean-Jacques Rousseau in 1762 and the History of the Indies  of the Raynal abbot in 1770. For this reason, many were the texts, such  Of the spirit of the laws  (1748) of Montesquieu, which appeared abroad without name of author, in the Hague, Geneva or London. Symmetrically, certain works were the subject of a tolerance, with the image of the Encyclopaedia,  whose various volumes could be printed and diffused only thanks to the protection of Malesherbes, director of the Bookshop since 1750.

The theatre was not remains about it, and it is since 1701 that a body of "royal critics", placed under the authority of the general lieutenant of police force, exerted a censure prélable. If a part were refused, the dramatic author could however make it represent, with the proviso of agreeing to operate the cuts or the corrections which were proposed to him. Under the combined pressure of the Church, Parliament and army, many parts were censured, of  Mahomet  of Voltaire, prohibited after his first representation in 1743, with  the Deserter  (1769) of Sedaine. In spite of the liberalization which accompanied the advent by Louis XVI in 1774, one needed the obstinate support of Marie-Antoinette so that Beaumarchais manages to make play  the Barber of Seville  and  the Marriage of Barber,  true loads against the established order.

In the other countries of Europe, only the United Provinces and England could seem grounds of relative freedom, even if, in this last country, it were necessary to await  the XIX ^E century to see the benefit of the act of Tolerance (1689) extended to the catholics, the israélites and the atheists. In Russia, the censure took an increasingly restrictive turn starting from the reign of Catherine II, but it is under Nicolas I ^er  that was created, immediately after the discovery of the plot of the decabrists (1825), the 3 ^E section of the political police force, whose head, famous Bekendorff, was a vigilant critic, not only for the works of Pouchkine, but also for the whole of the Russian letters during a good part of  XIX ^E century.

2. 4

Liberalization

Starting from the XVIII ^E century, the philosophical thought proceeded to a questioning of the absolutism and exclusiveness in the religious dogmas, consequently tackling the principle of the censure in the name of the freedom of expression. Concretely, it is the Declaration of American independence of July 4 1776 which marked a turning by affirming that freedom is one of the inalienable rights of the man. In France, the Declaration of the rights of man and of the citizen of August 26, 1789 solemnly establishes the freedom of expression and religious opinion, its article 11 laying out that "the free communication of the thoughts and the opinions is one of the most invaluable rights of the man"

Consequently, the censure as regards theatre was abolished, less than two years later, by the law of January the 13, and 19 1791.

With regard to the press, it is article 17 of the Constitution of September 3 1791 which devoted the principle according to which "no man cannot required nor be continued at a rate of the writings that it will have made print or publish". In spite of this solemn assertion, the censure did not disappear, in a revolutionary context where the demonstration of any dissenting opinion could lead to the imprisonment or death. Thus Convention restores it the censure of the press in particularly vehement terms: "the empoisonneurs of the public opinion such as the authors of newspapers counter-revolutionaries will be put in prison and their presses, characters and instruments, distributed between the patriotic printers"

After the Revolution, various systems of authorization and control were set up by the successive modes. The Directory, but especially the Consulate then the Empire methodically got busy to eliminate what remained of the freedom of the press, by the prohibition of the political newspapers and the institution of severe modes of police force against the theatre, which, under the Empire, came under the responsibility besides from the ministry for the Interior. Great writers like Mrs. de Staël, in hillock with the hostility of Napoleon I ^er, were exiled or prevented from publishing.

After the fall of the Empire, many were the modes which, while formally registering the principle of the freedom of expression in their fundamental texts, did not resist temptation to harden their legislation to decrease the range by it. Thus, although the charter of 1814 had proclaimed in its article 8 that "the French have the right to publish and make print their opinions while conforming to the laws", the mode of the Restoration broke down because of the promulgation by Charles X of the ordinances of 1830, of which one sought to restrict the freedom of the press. Thereafter, the governments, educated by this experiment, ceased making play the preliminary censure, without avoiding for all that submitting authors, directors of publication and editors in front of the courts. In 1857, under the second Empire, Flaubert lives himself to show immorality at the time of the publication of  Mrs Bovary,  but was discharged. The same year, Baudelaire was condemned for insult to the moralities for its collection  the Flowers of the evil.

If, in France, the law of July 29, 1881 definitively devoted the freedom of the press in substantive law and if the theatrical matter censure ceased existing in 1906, other countries continued to subject their creators to a systematic censure, following the example Spain under the dictatorship of Miguel Primo of Will rivet then Free, while passing by the Nazi Germany, the dictatorships of Latin America and the countries socialist, to start with the Soviet Union which was not satisfied to determine the aesthetic criteria of "socialist realism", but exiled, condemned or prohibit many artists, like Pasternak or Soljenitsyne.

3

LEGAL STATUS OF THE CENSURE

The censure disappeared in France, even if it were restored during the two world wars. Nevertheless, the applicable modes today as regards press, of theatre and cinema envisage, as in all the States, of the restrictions on the total freedom of expression, always moved by considerations of law and order. Admittedly, these are the considerations which, from time immemorial, were advanced to justify the censure; but a truly democratic State is recognized so that it proposes a clear and restrictive definition attacks with the law and order.

3. 1

Freedom of the press

The freedom of the press is characterized by a repressive, liberal mode since no preliminary censure comes to limit the production nor the diffusion of the newspapers and the books, repression being implemented if these works constitute an attack or a violation of the law. Thus, for the books, the law requires only that the formality be filled of "registration of copyright" near the prefect and of the mayor.

The periodicals, as for them, are subjected to a declaration written with the Parquet floor during the creation of the title. Lastly, the opening of a printing works from now on is subjected to no governmental censure.

The repression envisaged by the law of 1881 on the press takes the form of seizures, which can be legal, on order of an examining magistrate (on account of the form, the non-observance of the obligation of registration of copyright, or for basic reasons, being of works obscenes being likely to be exposed to the sight of the minors, incentive publications to the murder or violence against the people, or comprising offences with regard to the heads of State or governments foreign).

The authorities can moreover intervene beforehand to prevent the exit of a publication in certain cases enumerated by the law (foreign publication, protection of youth, remarks racist, risk of disorders).

3. 2

Regulation of the spectacles

Concerning the theatre, the censure was formally abolished in 1945, but the mayors, equipped with the authority of police force, always have the right to be opposed in a preventive way to certain representations of spectacle which could cause disorders of the law and order. Thus, no preliminary administrative authorisation is necessary, but when the representation proceeds on the public highway, an authorization of the mayor (or the prefect of police force in Paris) is necessary. The ordinance of 1945 subjects the directors of spectacle to the respect of "lawful regulations concerning the good order and the behaviour of the spectacles, safety and the public health", which does not block the freedom of expression and any more one censure does not constitute, but a simple regulation.

3. 3

Censure with the cinema

It is only concerning the cinema, mean of communication of mass, that the freedom of expression continued to be the object, in the majority of the countries, of more or less significant restrictions, that it is at the stage of the realization, the exploitation and the diffusion of film.

The authoritative or totalitarian modes never ceased exerting narrow ideological controls on the cinema, by the means of the financing of cinematographic industry, but also by prohibition pure and simple to turn. At the time of the advent of the Nazism, for example, many realizers took the way of the exile thus, following the example Fritz Lang, Lubitsch or Sternberg.

3.3. 1

In the United States

The United States instituted in 1909 the National Board of Censorship, and the United Kingdom created in 1912 British Board of Film, organizations which established a classification distinguishing films reserved to the adults and those which were intended for any public. In 1922, American cinematographic industry set up its own organization, Motion Picture Producers and Distributors of America (MPPDA, organization of the producers and distributors American), directed by Will Hays, whose principal task was to censure films before and after the production. The MPPDA created in 1930 a series of particularly puritan, known payments under the name of "Hays Code", which were abolished only in 1966.

Another form of censure appeared in the United States starting from the end of 1940, with the development of "hunting for the witch" carried out by the senator McCarthy within the framework of its crusade anticommunist. The studios of cinema then drew up a "black list" of almost two hundred people, whose presence with the poster was likely to compromise the career of a film. The scenario writer Dalton Trumbo, the realizers Joseph Losey or Jules Dassin were the subject thus of this ostracism and had to make the choice work clandestinely or exile themselves. However, this systematic persecution, which was to end in 1954, met a serious resistance in the cinematographic mediums, and many were the films carried out at that time which denounced racism, conformism or cowardice.

Today, the only censure, exerted on a local scale, simply consists in checking that the film is intended for any public. In Great Britain, British Board of Film Classification (BBFC), as it is called from now on, modified its classification and approached the American model. However, in fact always the local authorities decide lastly if the film can be projected.

3.3. 2

In France

In France, it is a circular of the Minister of Interior Department going back to 1909 which subjected to the approval prior of the mayor the representation of cinematographic films to the public.

In June 1916, a decree establishing the cinematographic censure, emanating from the Minister of Interior Department, established a commission in charge of the examination and control of films, and authorized to deliver the charts allowing their diffusion in France. In 1919, another decree required that the film obtained two visas, one for the representation, the other for export, delivered abroad by the board of examiners of the ministry for the State education and the Art schools. The procedure before the commission was contradictory, i.e. the film authors and editors had the right to present their arguments before was not made the decision by the commission. The commission was then a direct emanation of the Minister of Interior Department, the ten members who made it up being named on presentation of the minister.

The commission, whose capacities were widened in 1936, granted the visa of representation according to a certain number of criteria like the national interest, the interest of the defense of the moralities and the respect of the national traditions. These extremely vast and vague criteria caused many controversies, the more so as this system of censure of State was particularly harmful for the presentation of the foreign cinematographic films, which were to also receive the visa of representation to be diffused.

The ordinance of 1945 transformed the composition of the Audit Board by providing that this one would be from now on made up of an equal number of professionals of the cinema and representatives of the ministry. This equal system having caused many blockings, a reform intervened with the decree of January 18, 1961. Since, to these two groups of members representatives of the ministries for Justice were added, national Education, Public health, and representatives of users.

The decree of 1961 increased the censure by requiring that the projects of long films obtain a preliminary opinion on behalf of the commission, follow-up of an authorization of turning delivered exclusively by the national Center of cinematography. Moreover, the emanating visa of the commission of censure did not prevent the mayor, in the exercise of its executive power or policing powers, to prohibit the projection of a film for reasons for law and order.

Thus, the film of Jacques Rivette entitled  Suzanne Simonin, the chocolate éclair of Diderot  was the subject of a prohibition by the Secretary of State to Information in 1966, whereas the commission had given an opinion favourable to its exploitation. It is only because the administrative court of Paris considered the decree of prohibition illegal (as being sullied with legal flaw) that the film could be authorized by a new Secretary of State in 1967.

It a law of December 30 1975 which created a particular category of films, called category X, gathering films pornographic or incentive with the violence, subjected on a diet of specific distribution. Thus, the rooms in which these films can be projected are specific and distinct rooms which cannot belong to the distribution network of traditional films. Moreover, the national Center of cinematography is not authorized to grant financial subsidies for the production, the exploitation and the distribution of this type of films. Lastly, these films are more strongly taxed in the tax plan.

The mode of censure out of cinematographic matter which still exists, certainly in a reduced form, was largely softened since the beginning of the century, but the system of delivery of the visas testifies to the will of the executive power to control this form of artistic expression. In this respect, the Supreme court of appeal justified the decision of the court to oblige the distributors of film of Martin Scorsese, entitled  the Last Temptation of Christ,  to insert a text of warning in all publicities on this film. Indeed, for the Court, the images of this film being likely to wound the religious beliefs of certain witnesses, this insertion was justified. In the same way, the European Court of the humans right estimated that the confiscation of Austrian film of Werner Schroeter entitled  the Council of love  was justified for reasons practically identical to those which were emitted in the business  of the Last Temptation of Christ. This tendency is analyzed like a return if not of a censure, at least of a particularly severe regulation of the cinematographic expression when this one touches with the religion.