OFFICE OF CENSORSHIP

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 03074920
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 4
• Document Creation Date: March 9, 2023
• Document Release Date: August 5, 2021
• Case Number: F-2019-00045
• Publication Date: January 30, 1951

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30 January 1951
MEMORANDUM FOR MR. HOUSTON
SUBJECT: Office of Censorship
1. You have requested an opinion concerning authority to create
or revive an Office of Censorship, and the steps necessary for such a
move.
2. The Office of Censorship was created by Executive Order 8985
(3 CFR, 1941 Supp., p. 323) on 19 December 1941. This Executive Order
listed three items as its legal foundation:
(a) Constitutional powers of the President (nothing
specific mentioned).
(b) Authority vested in President by "the statutes of the
United States" (nothing specific mentioned).
(c) Particularly the authority vested in the President by
Section 303 of the "First War Powers Act" of 18 December 1941
(55 Stat. 838; 50 USC App. 618). This Act specifically authorized
an Office of Censorship.
3. The Office of Censorship was terminated by Executive Order
9631 (3 CER, 1945 SUPP., p. 121) on 28 September 1945�
4. On 25 July 1947, Congress repealed Section 303 of the "First
War Powers Act," thus removing the specific legal justification for
an Office of Censorship.
5. However, the President's Constitutional powers remain as a
possible foundation for reviving the Office of Censorship.
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'me
-2-
President Roosevelt evidently construed his Constitutional powers as
sufficient to impose censorship or he would not have listed such powers
as a basis for his Executive Order. Presumably he was speaking of the
President's power as Commander-in-Chief of the armed forces, since his
authority is supreme insofar as actual military operations are concerned.
During World War II, President Roosevelt made the following statement:
"This total mar. . .makes the use of executive power far
more essential than in any previous mar. . . � I cannot tell
what powers may have to be exercised in order to min this mar. . .
When the war is over the powers under which It will auto-
matically revert to the people to whom they belong". Radio
Address, 7 September 1942.
This speech may sound a bit dictatorial but it shows how far a powerful
executive may go.
6. In addition to the Constitution, Executive Order 8985 listed
"the statutes of the United States" as a basis for imposing censorship.
The implication is that the President believed there were provisions of
law, other than the "First War Powers Act," upon which censorship could
be based. Possibly he referred to Section 606 of the Communications Act
of 1934 (47 USCA 606, as amended), which provides that the President has
certain mar powers over any and all mire facilities within the jurisdic-
tion of the United States. The general import of this statute is to
provide priorities for messages sent by the Government, but according to
one authority its meaning is far greater. Professor Weaver, in "Constitu-
tional Law and its Administration," made the following statement:
�
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The extent of the pomere here defined is not clear, but
under them the President enforced a strict censorship in World
War II and provided for a system of priorities which he deemed
necessary for national defense and for the successful prosecution
of the marl' (1946 Edition, p. 189).
While I am not convinced that World War II censorship Was based on this
statute) Professor Weaver's statement does indicate the broad power
given the President by this law.
7. The power of the President in time of war (in addition to his
powers as Commander-in-Chief of the armed forces) is explained in this
quotation from Willoughby:
uThe Constitution makes no specific provision for the exercise
by the President of exceptional powers in time of mar, but the fact
is none the less true that, in time of mar, he is enabled to
exercise his specifically given powers more vigorously than in time
of peace, and Congress is, as a matter of expediency, compelled to
grant to him wide discretionary statutory powers" (Section 669, Con-
stitutional Law of the United States, Second Students Edition, 1938).
8. In summary, there are three possible methods for creation of
an Office of Censorship:
(a) Creation by Executive Order, based upon the President's
Constitutional powers as Commander-in-Chief of the armed forces.
This would be possible from a legal standpoint, but very likely
mould not be attempted for political and practical reasons.
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(0) Creation by Proclamation of the President that there
exists a state or threat of war involving the United States,
basing his action upon the Communications Act of 1934. While
Professor Weaver considers this Act sufficiently broad for
censorship, I do not believe Congress intended to confer such
extensive powers.
(c) Creation by Executive Order based on legislation
similar to the "First War Powers Act". This, of course, would
be the ideal situation. It would insure Congressional support
for censorship and also provide punishment for violation of
censorship laws and regulations.
Regulations of the Office of
censorship are set forth in
16 CFR 1945 SuPP., P. 3536.
CC:
(b)(3)
(b)(6)
(b)(3)
(b)(6)
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