Which of These Are Censorship? The Divide Between Prior Restraint and Soft Censorship

Theatrical censorship in a global sense is depressingly familiar. American censorship, however, is an interesting case. It has definitely occurred in the purest sense: from 1922 to 1927, the “Play Jury” in the United States policed what performances were allowed to be produced and who was allowed to act within productions. Theatre makers in this era had to follow these rules or be banned, as was the case with Eugene O’Neill’s Desire Under the Elms.(1) The First Amendment has, at times, offered protection against some forms of governmental bans, protecting American theatre more so than some other countries. However, that does not mean that governmental control of American theatre is a relic of the past. Today, many states are creating laws and policies to cut “indecent” performances off at the knees. Censorship is a broad term that encompasses a variety of distinct legal measures, and the legality of censorship varies between eras and locations. However, since we are discussing “contemporary American censorship,” I will highlight two prevalent forms: prior restraint and soft censorship.(2)

Prior restraint is a form of censorship that allows the government to review the content of printed materials and prevent their publication.(3) If any material touches on a topic that the government has deemed off-limits, then that material may be censored. It has been “restrained” before it has had any chance to be reviewed by a governing body, amended by the playwright, or produced for an audience. Under a prior restraint system, if “gender ideology” is a banned topic, then anything that discusses that topic will be prohibited. Currently, this is most evident in educational settings and in situations involving state and federal funding. For example, The Laramie Project, a play which has been frequently banned or protested, was lately banned by a school in Texas in February 2024 and by Kansas schools a year earlier.

It is one thing for an institution or government to forbid you from putting on a production, and another to stop yourself from staging one because you suspect that it will not draw a crowd or earn a profit, or that there could be public backlash. This second instance is known as “soft censorship.” With theatres still trying to claw their way back from the downturn caused by the pandemic, many are worried about doing anything that would kick the proverbial hornet’s nest. This can manifest as: locations that should or should not be toured through, venues that may or may not accept a production, and seasons that will or will not generate controversy. (For instance, Arena Stage’s 1992-93 season is an example of an attempt at casting diversity that created backlash from theatre donors.) All these factors and worries have to be carefully managed, on top of the issues around federal and state funding that are becoming increasingly proliferate.

In today’s American theatre, there are cases of prior restraint censorship, such as theatres being denied grants unless they adhere to or avoid specific topics, and there are cases of private venues choosing to forgo certain topics. These two instances may, on the surface, appear to produce the same result—a production is not allowed to be staged—but in actuality, they are vastly different. One flies in the face of the First Amendment, and the other is a private entity’s choice not to engage with certain topics. In a confusing, reactionary, and fast-paced public sphere, it is vital to note when something is facing unconstitutional censorship and when something is just not being staged. As worrying as it is when the latter happens, it is in the private entity’s right. This provocation will explore the divide between prior restraint and soft censorship. Some theatres have been forced to toe the line in order to secure grants, while others have spoken out, employing everything from boycotts to lawsuits. Although brief, this overview of the field aims to highlight contemporary American censorship. 

Private and Public Institutions Refusing to Produce Certain Theatrical Productions

Let us begin with “soft censorship.” In America, there are private institutions that sometimes refuse to lease venues or allow theatrical tours to perform in their areas. Many people may see a venue or a certain township’s refusal to allow a production to occur within their walls and decry it as censorship, but, in a legal sense, it is not. While the First Amendment prevents governments from limiting the speech of private individuals, there are no laws against private institutions or individuals from limiting each other. Yet, these actions may seem similar to censorship, and so this phenomenon should still be looked at as an indicator of anxieties in theatrical production. The reasons why a certain show is not staged, even when there is no First Amendment issue at play, can show what topics are being seen as too risky or inappropriate for a venue, location, or group.

For example, in October 2024, New York’s Connelly Theater was unable to continue its season when the Archdiocese of New York (which owns the theatre) refused to sign booking agreements, which are needed for the bookings to be legally valid. The planned productions were Kallan Dana’s Racecar Racecar Racecar, Emil Weinstein’s Becoming Eve (based on the memoir by Abby Chava Stein), and Zach Zucker’s Jack Tucker: Comedy’s Standup Hour.(4) The SheNYC festival, which had used the Connelly for eight years, is now looking for a new venue for its 2025 festival, fearing they too will not be granted booking agreements. Due to this issue with the Archdiocese, the Connelly Theater’s artistic director resigned, and the theatre suspended all operations. The Archdiocese did not give an explicit reason to find fault in the planned plays, a spokesman said that “it is ‘standard practice’ that nothing should take place on the property that is ‘contrary to the teaching of the church.’”(5)

The Archdiocese may have refused to renew the booking because of this “contrary” content, specifically Becoming Eve, an adaptation of Stein’s memoir about her coming out as trans and her Hasidic rabbinical family. The Archdiocese could have been motivated by a fear that the planned season would not generate revenue, or that it would cause outrage, or any number of other reasons. As distressing as this is, in essence, a private institution refused to house certain content, which, by law, they are within their rights to do. This differs from prior restraint, as the entity banning work is not a governmental group, but a private one. The Archdiocese is not a state or federal governmental body. They have the power to choose who and what uses their commercial space. 

A Note on Restricted Theatre in Schools and Higher Learning Institutions

The Educational Theatre Association (EdTA) reported that approximately 67% of educators were concerned about potential controversies in the plays for their upcoming seasons. In current reporting, many high school and college productions face the heaviest restrictions, as parents can influence school boards and funding.

Here are a few instances of recent academic theatrical bans: in 2023, a public arts high school in Florida canceled a production of Indecent; an Illinois public high school canceled a production of The Prom; an Indiana public high school canceled a production of Marian, or the True Tale of Robin Hood; an Ohio public high school requested twenty-three revisions of The 25th Annual Putnam County Spelling Bee before it could hit the stage; and a Texas public school board canceled several primary school field trips to see James and the Giant Peach due to a social media post that equated actors playing both male and female roles as “drag.”(6) 

These “theatres” are overseen by governing boards which control the funding and curriculum of the school, and so they must contend with the oversight of the students’ families (who make up the cast, crew, and audience). There is a discussion to be had regarding the differences between public and private schools, and whether the former should have First Amendment protections if they are tied to or funded by state institutions. The government cannot limit the speech of a non-governmental entity. Are public schools funded by the state or federal government governmental entities? What about private institutions that receive government grants? And how does this question change when the school in question is a primary school, and not a high school or a college? When minors are involved, worries over “indecent” content rise, and when the funding for a public school is provided by the community (taxpayers, local grants, etc.), then a situation similar to the Connelly Theater arises. If a group of private citizens or donors chooses to not fund (to allow funds to go to) a particular production due to its themes, is that within their rights?

As state laws vary significantly, more work needs to be done to compile a comprehensive list of institutions that do and do not have First Amendment protections, and to examine how public funding affects private institutions, as well as the reverse, as private funds may support both private and public institutions. 

Contemporary American Governmental Censorship

According to Artists at Risk Connection (ARC), an independent organization dedicated to advancing and defending artistic freedom globally, artists are increasingly being censored in the United States for creating work that intersects with their politics or identities—particularly those from marginalized communities, including artists of color and LGBTQIA+ individuals.(7)

In many prior restraint incidents, the content that is being targeted deals with identity issues, such as LGBTQA+ representation. There are other cases of ideological depictions—namely, plays about non-Christian religions and plays engaging questions or themes of race. (Regional theatres produce more plays written by white playwrights than by playwrights of color.) One of the main components of today’s artistic attitude is the 1990 Congressional decision that stated that any grants to the National Endowment for the Arts (NEA) should be subject to “general standards of decency and respect for the diverse beliefs and values of the American public.” This has become known as the “decency clause” and is an example of prior restraint; a topic is deemed unsuitable for public display from the get-go.(8) Thankfully, this clause has been challenged numerous times. In 1994, the Dallas Theater Center produced Six Degrees of Separation by John Guare, and the theatre was cited for running a sexually oriented business due to the play’s nude scene due to the decency clause, but the charges were later dropped.(9) In a 1998 ruling, a federal judge for the 9th Circuit Court of Appeals maintained that the clause’s vague language would fetter artistic freedom.(10)

A more current example of prior restraint is Florida’s 2023 House Bill 1069, an education law which is stated to “restrict media with sexual content.”(11) This legislation has had the chilling effect of curtailing a wide breadth of theatre, including Shakespeare, as many of his characters cross-dress, which is enough for Florida to classify it as sexual in nature. In Orlando, the decision was made to no longer permit Shakespeare’s plays to be read in their entirety in schools due to sexual innuendos and allusions to sex, such as in Romeo and Juliet.(12) The bill is primarily directed at K-12 schools, as it was proposed by the Senate’s “Education Pre-K-12 Committee”; however, it has also had an impact outside the classroom. During the 2023 holiday season in Orlando, a theatre hosted a “drag Christmas,” and they were instructed to sell tickets only to people 18 or older due to the performance content. And yet, Florida Governor Ron DeSantis took their beverage license anyway, claiming that minors were admitted, but also stating that “the fact that there were people performing opposite to their gender was sufficient to pull their license.”(13)

The ACLU’s Lawsuit Against the NEA

At this time, the most significant case of prior restraint we are seeing is the new grant application policy of the National Endowment for the Arts (NEA) for federal grants, and the ensuing lawsuit by the American Civil Liberties Union (ACLU), which began on 6 March 2025. President Trump had outlined new guidelines for NEA funding, which required applicants to state that they will not “promote gender ideology” in the project for which they are requesting the grant. This move came on the heels of President Trump’s 2025 executive order 14168 that identified “male and female as the only two sexes and said that federal funds should be used to promote [this] gender ideology.”(14) Additionally, applicants for NEA grants were required to state that they were not operating DEI programs. 

The ACLU is filing this lawsuit on behalf of Rhode Island Latino Arts, the National Queer Theater, The Theater Offensive, and Theatre Communications Group. They argue that these requirements violate the First Amendment and fall under prior restraint. They requested a temporary restraining order (TRO) or preliminary injunction on these requirements before the March 24th deadline for the NEA funding application for the 2025 fiscal year.(15)

According to the ACLU website, on March 7th, the NEA agreed to remove the requirement from the application that had grant applicants state that their projects would not “promote gender ideology.” However, while the statement is no longer required for the application process, the NEA has not agreed to remove the criterion.(16) On March 27th, the U.S. District Court in Rhode Island began to hear arguments for the case. During this time, the application deadline was pushed from March 24th to April 7th, and the NEA agreed not to begin disbursing funds until April 30th, when “the agency determines how to implement the executive order.”(17) However, on April 3rd, the Court denied the motion for a TRO. The court held that:

…the NEA’s decision on Feb. 6 to make any project that “promotes” what the government deems to be “gender ideology” ineligible for funds likely violated the First Amendment and exceeded its statutory authority, it… concluded that, because the NEA is currently in the process of determining whether to reimpose that ban, the court could not get in the way of the agency’s decisionmaking [sic] process.(18)

The case is still ongoing, with the latest update being from May 12th. After the NEA’s self-imposed April 30th deadline passed, artists and theatre makers called for the clarification promised. The NEA grant guidelines still leave it unclear whether applicants must explicitly state that they are not promoting gender ideology to be eligible for funding. Therefore, the case remains in limbo, as courts will not comment on a NEA policy that is subject to change, and since the NEA has yet to clarify that policy, the ACLU has no grounds to present to the court.(19)

What Does This Mean for the Field?

This is by no means an exhaustive look at current threats against theatrical productions, and many of the cases discussed above may or may not be resolved by the time this paper is read. In the current political climate of 2025, theatres must worry about whether their productions will meet grant requirements that could change to align with a current political agenda. They must worry about whether they will be allowed to tour certain locations and use specific venues, or if a script can even be produced in certain institutions. It would be so nice to say that we can rest easy in the arms of the First Amendment to keep theatre safe from governmental censorship, but as it stands, that is not the case. Whether through state legislation or executive order, the rules that would have allowed all viewpoints and opinions to ring out are being sidestepped and ignored. So what are we to do?

Some theatres have decided to conform to current trends and refrain from producing anything that may be divisive. Others have decided to boycott the space, as many performers did when President Trump took over the Kennedy Center: Lin-Manuel Miranda announced that a production of Hamilton, which would have played at the Kennedy Center in 2026, for the 250th anniversary of America, would be canceled, and will remain canceled as long as Trump is the chair of the center.(20) As of May 2025, this is still the case. 

There are lawsuits, news articles, public outcries, and eyes being drawn to the issues. These instances of true censorship, prior restraint censorship, cannot be allowed to be swept up into the never-ending tide of current events. However, at the risk of sounding like a fence straddler, we also must remain apprised enough to recognize what is actual and actionable censorship, and what are examples of private venues and entities exercising their rights. It is all too easy to jump to “Censorship!” when any production hits a roadblock. But the First Amendment allows private citizens to speak their minds, and this includes venues not wishing to associate with certain topics. It may hurt, but it is their right, and all rights need to be respected. A nuanced perspective is necessary to ensure that the field can move forward in a manner that is both legal, holistic, and respectful. 

The danger is present. The use of governmental power to curtail voices is on the rise. Pushing back and being too loud and too numerous to ignore is the best weapon we have against this. But we cannot let ourselves be desensitized to the volleys or be quick to jump at perceived slights. In a world that is slowly losing touch with critical thinking and nuanced analysis, we cannot fold.