Should the State Ever Have the Power to Censor Art, Literature or Media?

The instinct to ban a book, a film, or a painting is usually the instinct of someone who has lost an argument and reached for a different tool. My view is that the state should not have a general power to censor art, literature or media. Where speech crosses into concrete, demonstrable harm, the ordinary criminal and civil law already reaches it; beyond that line, censorship is illegitimate, ineffective, and dangerous. The hard cases lie at the edges, and I will take them seriously rather than pretend they do not exist.

The legitimacy objection comes first. Article 10 of the European Convention on Human Rights protects the freedom "to receive and impart information and ideas without interference by public authority." Crucially, in Handyside v United Kingdom (1976) the Strasbourg Court held that this protects ideas that "offend, shock or disturb." Free expression is not one liberty among many; it is the precondition for holding power to account, and a state that decides which voices may speak has quietly made itself the judge of its own legitimacy. The Lady Chatterley trial, R v Penguin Books Ltd (1960), makes the point domestically: a jury acquitted, and the paternalistic claim that adults must be protected from a novel collapsed.

A sceptic will answer that Article 10 is not absolute. That is correct, and it is the strongest case against my view. Article 10(2) expressly permits restrictions "necessary in a democratic society" for national security, public safety, or the rights of others, and Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 supplies the discipline: a measure must pursue a sufficiently important aim, be rationally connected to it, be the least intrusive option, and strike a fair balance. Canada goes further still. In R v Keegstra [1990] the Supreme Court of Canada upheld the criminal prohibition on wilfully promoting hatred, holding that although it breached the section 2(b) Charter guarantee, it was justified under section 1. So a serious comparative answer must concede that mature democracies do restrain some expression and do so lawfully.

Yet the concession is narrower than it first appears, and this is where my distinction holds. Keegstra targets a defined harm, the wilful promotion of hatred against identifiable groups, not artistic merit or political dissent. The Contempt of Court Act 1981 restrains publication only where there is a "substantial risk" that active proceedings will be "seriously" prejudiced, and the UK's DSMA-Notice system, tellingly, is voluntary and carries no legal force. None of these is a power to censor art because it is offensive. They are narrow, harm-tethered rules with a triggering condition the state must prove, which is the opposite of the open-ended editorial veto the question asks about.

The second objection is practical: censorship usually fails. When the state suppresses material, it advertises it. The Streisand effect is the textbook case, an attempt to remove a single aerial photograph in 2003 drove its views from six to over four hundred thousand. United States v One Book Called Ulysses (1933) turned a banned novel into a landmark, and China's Great Firewall, for all its sophistication, sustains a permanent VPN economy rather than silence. Banned ideas do not die; they go underground, where they are harder to answer and easier to romanticise.

The deepest objection is epistemic. To grant the state censorship power is to assume it can reliably tell truth from error, and history is a graveyard of confident official judgments later reversed. A power justified today by one government's restraint is inherited tomorrow by a successor who feels none, because "harm" and "security" are elastic enough to swallow dissent. The safeguards a defender of censorship invokes, proportionality, judicial review, sunset clauses, depend on a political culture that censorship itself erodes.

So the honest position is not absolutism but precision. The state may, through tightly drawn and independently policed law, address proven harms such as incitement, hatred, or the prejudicing of a fair trial. What it must not have is a standing power to censor art, literature or media because officials find them dangerous, false, or distasteful. A democracy that fears expression has stopped trusting its citizens, and a state that learns to silence art soon forgets how to listen.