Hillsdale
College
January
Imprimis
The
Liberal Assault on Freedom of Speech
Thomas
G. West
Thomas G. West
is a professor of politics at the University of Dallas, and a member of the
board of directors and a senior fellow of the Claremont Institute. He received a
B.A. at Cornell in 1967, a Ph.D. in Government at the Claremont Graduate School
in 1974, and served in Vietnam as a Lieutenant in the U.S. Army in 1969-70.
Among his several books are Plato’s Apology of Socrates: An Interpretation
with a New Translation, Four Texts on Socrates (with Grace Starry West), and
Vindicating the Founders: Race, Sex, Class, and Justice in the Origins of
America, which won the Bagehot Council’s 2000 Paolucci Book Award for the best
book in American history and politics.
The
following is adapted from a speech delivered at a Hillsdale College national
leadership seminar in Palm Springs, California, on February 18, 2003. It has
been updated to address last month’s Supreme Court decision in McConnell v.
Federal Election Commission, which upheld the Bipartisan Campaign Reform Act
of 2002.
The
Liberal Assault on Freedom of Speech
America has less
freedom of speech today than it has ever had in its history. Yet it is widely
believed that it has more. Liberal law professor Archibald Cox has written:
“The body of law presently defining First Amendment liberties” grew out of a
“continual expansion of individual freedom of expression.” Conservative
constitutional scholar Walter Berns agrees: “Legally we enjoy a greater
liberty [of speech] than ever before in our history.” Both are wrong.
Liberals and
libertarians applaud what Cox, Berns, and others perceive as an expansion of
free speech. Conservatives sometimes deplore it, rightly assuming that the
expansion in question leads to greater scope for nude dancers, pornographers and
flag burners. But from the point of view of the original meaning of free speech,
our speech today is much less free than it was in the early republic.
Campaign
Finance Regulation
In 1974, for the
first time in American history, amendments to the Federal Elections Campaign Act
(FECA) made it illegal in some circumstances for Americans to publish their
opinions about candidates for election. Citizens and organizations who
“coordinate” with a candidate for public office were prohibited from
spending more than a set amount of money to publish arguments for or against a
candidate. Those who “coordinate” with a candidate are his friends and
supporters. In other words, publication was forbidden to those with the greatest
interest in campaigns and those most likely to want to spend money publishing on
behalf of candidates.
The Bipartisan
Campaign Reform Act of 2002 goes well beyond the 1974 law, imposing substantial
limits on the right of political parties and nonprofit organizations to
publicize their views on candidates during election campaigns. Imagine the shock
of the Founders if they were here to see that government was heavily into the
business of banning private citizens from pooling their fortunes to publicize
their opinions about candidates for elections.
These laws do
contain a notable exception. Newspaper owners may spend as much money as they
wish publishing arguments in support of candidates with whom they
“coordinate.” This solitary exemption from restrictions on free speech is,
of course, no mistake: The dominant newspapers in America are liberal, and the
1974 law was passed by a Democratic Congress on the day before Richard Nixon
resigned in disgrace from the presidency.
Campaign finance
regulation stands in direct opposition to the Founders’ understanding of the
First Amendment. For a large class of people, it effectively prohibits and
punishes the most important thing that the right to free speech is supposed to
guarantee: open discussion of candidates and issues at election time.
Those who favor
campaign finance regulation sometimes claim that their primary concern is with
“corruption and the appearance of corruption” – that is, what used to be
called bribery or the appearance of bribery. But that is not the real agenda of
the reformers. There is a good reason why the 2002 Act, like the 1974 law, was
voted for by almost every House and Senate Democrat, and opposed by a large
majority of Republicans: These laws are primarily about limiting the speech of
conservatives.
Here are some
quotations from the 2002 congressional debate:
Sen.
Maria Cantwell (Dem.-Wash.): “This bill is about slowing the ad
war. . . . It is about slowing political advertising and making sure the flow
of negative ads by outside interest groups does not continue to permeate the
airwaves.”
Sen.
Barbara Boxer (Dem.-Calif.): “These so-called issues ads are not
regulated at all and mention candidates by name. They directly attack
candidates without any accountability. It is brutal. . . . We have an
opportunity in the McCain-Feingold bill to stop that.”
Sen.
Paul Wellstone (Dem.- Minn.): “I think these issue advocacy ads are
a nightmare. I think all of us should hate them… . [By passing the
legislation], [w]e could get some of this poison politics off television.”
In other words,
the law makes it harder for citizens to criticize liberal politicians when they
disagree with their policy views.
Some congressmen
were willing to be even more open about the fact that the new law would cut down
on conservative criticism of candidates. Rep. Jan Schakowsky (Dem.-Ill.) said:
“If my colleagues care about gun control, then campaign finance is their issue
so that the NRA does not call the shots.” Democratic Reps. Marty Meehan
(Mass.) and Rosa DeLauro (Conn.), and Democratic Sens. Harry Reid (Nev.) and
Dick Durbin (Ill.) also cited the National Rifle Association’s political
communications as a problem that the Act would solve. Several liberal
Republicans chimed in.
What this means
is that government is now in the business of silencing citizens who believe in
the Second Amendment right to keep and bear arms.
Sen. Jim
Jeffords (Ind.-Vt.) said that issue ads “are obviously pointed at positions
that are taken by you, saying how horrible they are.” “Negative advertising
is the crack cocaine of politics,” added Sen. Tom Daschle (Dem.-S.D.). What
these quotations show – and there are many more like them – is that the
purpose of campaign finance regulation is to make it harder for conservatives to
present their views to the public about candidates and issues in elections.
In its shocking
December 2003 decision in McConnell v. Federal Election Commission, the five
most liberal members of the Supreme Court upheld this law and saw no conflict
with the First Amendment guarantee of freedom of speech and of the press. Yet it
is impossible to imagine a more obvious violation of the First Amendment, unless
the government were explicitly to authorize the Federal Election Commission to
close down conservative newspapers and magazines. In his powerful dissent in the
McConnell case, Justice Clarence Thomas wrote:
The chilling
endpoint of the Court’s reasoning is not difficult to foresee: outright
regulation of the press. None . . . of the reasoning employed by the Court
exempts the press. . . . What is to stop a future Congress from determining
that the press is ‘too influential,’ and that the ‘appearance of
corruption’ is significant when media organizations endorse candidates or
run ‘slanted’ or ‘biased’ news stories in favor of candidates or
parties? Or, even easier, what is to stop a future Congress from concluding
that the availability of unregulated media corporations creates a loophole
that allows for easy ‘circumvention’ of the limitations of the current
campaign finance laws?
With the
National Rifle Association announcement that it intends to acquire a media
outlet in order to get around Congress’s unconstitutional restrictions on
issue ads during elections, Justice Thomas’s nightmare might come true even
sooner than he anticipated. We are already hearing statements suggesting that
any media owned by the NRA will not count as “real” media. At some point,
perhaps in the very near future, the Federal Election Commission may find itself
deciding which newspapers and broadcast stations are “real” news media (and
can therefore be permitted their First Amendment rights) and which ones are
“slanted” or “biased” (thus whose First Amendment rights must be
denied).
Censorship
Through Broadcast Licensing
Reading
today’s scholarship on freedom of speech, one would hardly guess that
government control over the content of speech through licensing requirements –
supposedly outlawed long ago – is alive and well. The amazing ignorance with
which this matter is usually discussed today may be seen in the following quote
from legal scholar Benno Schmidt, the former president of Yale:
The First
Amendment tolerates virtually no prior restraints [on speech or the press].
This doctrine is one of the central principles of our law of freedom of the
press. . . . [T]he doctrine is presumably an absolute bar to any wholesale
system of administrative licensing or censorship of the press, which is the
most repellent form of government suppression of expression. . . .”
Schmidt fails to
notice that every radio, television, and cable broadcaster in America is subject
to a “wholesale system of administrative licensing,” i.e., the “most
repellent form of government suppression of expression.”
Broadcasters
have to obtain a license from the Federal Communications Commission. Stations
receive licenses only when the FCC judges it to be “in the public interest,
convenience, or necessity.” Licenses are granted for a limited period, and the
FCC may choose not to renew. The FCC has never defined what the “public
interest” means. In the past, it preferred a case-by-case approach, which has
been called “regulation by raised eyebrow.”
During most of
its history, the FCC consistently favored broadcasters who shared the views of
government officials, and disfavored broadcasters who did not.
The first
instance of serious and pervasive political censorship was initiated by Franklin
Roosevelt’s FCC in the 1930s. The Yankee Radio network in New England
frequently editorialized against Roosevelt. The FCC asked Yankee to provide
details about its programming. Sensing the drift, Yankee immediately stopped
broadcasting editorials in 1938. In order to drive its point home, the FCC found
Yankee deficient at license renewal time. They announced,
Radio can
serve as an instrument of democracy only when devoted to the communication of
information and exchange of ideas fairly and objectively presented. . . . It
cannot be devoted to the support of principles he [the broadcaster] happens to
regard most favorably. . . .
In other words,
if you want your broadcasting license renewed, stop criticizing Roosevelt.
The FCC soon
afterwards made exclusion of “partisan” content a requirement for all
broadcasters. It was understood, of course, that radio stations would continue
to carry such supposedly “nonpartisan” fare as presidential speeches and
“fireside chats” attacking Republicans and calling for expansions of the New
Deal. In the name of “democracy,” “fairness” and “objectivity,” the
FCC would no longer permit stations to engage in sustained criticism of
Roosevelt’s speeches and programs.
In 1949, the FCC
announced its Fairness Doctrine. Broadcasters were required “to provide
coverage of vitally important controversial issues . . . and . . . a reasonable
opportunity for the presentation of contrasting viewpoints on such issues.” In
practice, the Fairness Doctrine only worked in one direction: against
conservatives.
During the
Republican Eisenhower years, the FCC paid little attention to broadcasting
content, and a number of conservative radio stations emerged. After John Kennedy
was elected in 1960, his administration went on the offensive against them.
Kennedy’s Assistant Secretary of Commerce, Bill Ruder, later admitted, “Our
massive strategy was to use the Fairness Doctrine to challenge and harass
right-wing broadcasters and hope that the challenges would be so costly to them
that they would be inhibited and decide it was too expensive to continue.”
This strategy
was highly successful. Hundreds of radio stations cancelled conservative shows
that they had been broadcasting. The FCC revoked the license of one radio
station, WXUR of Media, Pennsylvania, a tiny conservative Christian broadcaster.
When WXUR appealed to the courts, one dissenting judge noted “that the public
has lost access to information and ideas . . . as a result of this doctrinal
sledge-hammer [i.e., the Fairness Doctrine].” The Supreme Court refused to
hear the appeal. It saw no free speech violation in the government shutdown of a
radio station for broadcasting conservative ideas.
The government
also revoked the license of a television station in Jackson, Mississippi. WLTB
was unapologetically and openly opposed to federal civil rights policies at the
time, and would introduce NBC’s news reports with this warning: “What you
are about to see is an example of biased, managed, Northern news. Be sure to
stay tuned at 7:25 to hear your local newscast.” The D.C. Circuit Court
ordered the FCC to revoke WLTB’s license. In an outrageous opinion authored by
Warren Burger, who was shortly afterward appointed by President Nixon as Chief
Justice of the Supreme Court, the Circuit Court demanded in indignant tones that
WLTB’s owner be silenced: “After nearly five decades of operation, the
broadcast industry does not seem to have grasped the simple fact that a
broadcast license is a public trust subject to termination for breach of
duty.” Again, the Supreme Court refused to hear the station’s appeal.
Conservatives
tried to use the Fairness Doctrine as well, but failed in every case. Liberal
author Fred Friendly writes, “After virtually every controversial program [on
the major TV networks] – ‘Harvest of Shame,’ . . . ‘Hunger in America’
[1960s programs advocating liberal anti-poverty policies] – fairness
complaints were filed, and the FCC rejected them all. As FCC general counsel
Henry Geller explained, ‘We just weren’t going to get trapped into
determining journalistic judgments. . . .’” In other words, when liberals
were on the air, the FCC called it journalism. When conservatives were on the
air, the FCC called it partisan and political, and insisted that the liberal
point of view be given equal time.
In the 1980s,
President Reagan appointed a majority to the Federal Communications Commission,
and it abolished the Fairness Doctrine in 1987. The effect was dramatic.
Immediately, conservative talk radio blossomed. Rush Limbaugh was the biggest
winner. He came along at just the moment when, for the first time since the
1950s, stations could be confident that conservative broadcasting would no
longer lead to license renewal problems or Fairness Doctrine complaints and
litigation.
The end of the
Fairness Doctrine was a tremendous victory for the First Amendment. But it does
not mean that broadcast media are now free. The authority of the FCC over
broadcasters remains in place. It can be brought back with the full partisan
force of the Roosevelt and Kennedy administrations as soon as one party gets
control over all three branches of the federal government and chooses to do so.
Harassment
Law
For about 25
years, government has required businesses and educational institutions to punish
speech that can be characterized as “hostile environment” harassment. This
standard is so vague that the question of what constitutes a “hostile working
environment” is endlessly litigated. One court ordered employees to “refrain
from any racial, religious, ethnic, or other remarks or slurs contrary to their
fellow employees’ religious beliefs.” Another court banned “all offensive
conduct and speech implicating considerations of race.” Of course, there are
some who find any criticism of affirmative action offensive, even racist. Others
are offended when someone alludes to his own religious convictions. So this
policy, in effect, makes it potentially illegal for employees to say anything
about their own religious beliefs or to defend the “wrong” kind of political
opinions. UCLA law professor Eugene Volokh has cited a headline in a major
business magazine that sums up this denial of free speech in the workplace:
“Watch What You Say, or Be Ready to Pay.”
The
Founders’ Approach
Let us turn to
the original meaning of free speech in the Constitution to see how far we have
abandoned the original meaning of that document.
The Declaration
of Independence calls liberty an inalienable right with which we are “endowed
by our Creator.” As human beings are born free in all respects, they are also
born free to speak, write and publish.
Nevertheless,
although all human beings possess the same natural right to liberty, the
Founders believed there is a law of nature that teaches us that no one has the
right to injure another. The most obvious kind of injurious speech is personal
libel. Here is a quotation from an early libel case:
[T]he heart of
the libeller . . . is more dark and base than . . . his who commits a midnight
arson. . . . [T]he injuries which are done to character and reputation seldom
can be cured, and the most innocent man may, in a moment, be deprived of his
good name, upon which, perhaps, he depends for all the prosperity, and all the
happiness of his life.
But the Founders
knew very well that allowing government to punish abuses of speech is
potentially dangerous to legitimate free speech. So they relied on three pillars
to secure this right of free speech while setting limits on injurious speech.
First, no speech
could be prohibited by government except that which is clearly injurious. Today,
as we have seen, noninjurious political and religious speech is routinely
prohibited and punished through campaign finance and other laws.
Second, there
could be no prior restraint of speech. Government was not permitted to withhold
permission to publish if it disapproved of a publisher or his views. Today, the
media from which most Americans get their news is subject to a government
licensing scheme that is strikingly similar to the system by which England’s
kings kept the press in line in the sixteenth and seventeenth centuries.
Third, injurious
speech had to be defined in law, and punishment of it could only be accomplished
by due process of law. Guilt or liability could be established only by juries
– that is, by people who are not government officials. Today, clear legal
standards, formal prosecutions and juries are mostly avoided in the convoluted
censorship schemes employed by government in broadcasting law, campaign finance
law, harassment law and the like.
As an aside, I
mention one other area where the dominant view today is opposed to the older
view. The Founders viewed prohibition of obscene or pornographic materials in
the same light as the regulation of, e.g., sexual behavior and public nudity.
Sex is by its nature connected to children. The political community cannot be
indifferent to whether and how children, its future citizens, are generated and
raised. That is why the laws prohibited or discouraged nonmarital sex such as
premarital sex, homosexuality and adultery. Obscene words or pictures were
banned because they tended to promote the idea of sex apart from marriage and
children, dehumanizing sex by making men and women into “sex objects.”
Today’s
Liberal View
Why have
liberals rejected the Founders’ idea of free speech?
The Founders
looked toward a society in which each person’s right to life, liberty,
property, free exercise of religion, and pursuit of happiness would be protected
by government. Except for sex, marriage, and other matters connected with the
generation of children, and injuries to persons or property, government would be
mostly indifferent to the manner in which citizens lived their private lives.
Laws would protect everyone’s rights equally, but it was understood that equal
rights lead to unequal results, because of differences in talent, character and
luck. About a century ago, liberals began to argue that the Founders’ view,
which is embodied in the Constitution, is unjust in two ways.
First, they
argued that by protecting everyone’s property equally, government in effect
sides with the rich against the poor. It protects the rich and leaves the poor
open to oppression. It is not enough, in the liberal view, for government to be
neutral between business and labor, between men and women, between whites and
racial minorities, and so on. In each case, liberals say, justice requires that
government must put burdens on the rich and powerful and give special advantages
to the weak and vulnerable.
Applied to free
speech, the liberal view leads to the conclusion that government must limit
spending by those who can afford to publish or broadcast their views. As
University of Chicago law professor Cass Sunstein writes, the traditional
autonomy of newspapers “may itself be an abridgment of the free speech
right.” Government interference with broadcasting content through FCC
licensing is from this standpoint a positive good for free speech. Without it,
rich white males will dominate, and the poor, women and minorities will be
marginalized and silenced. Therefore, in the liberal view, speech rights must be
redistributed from the rich and privileged to the poor and excluded.
University of
Maryland professor Mark Graber endorses this view: “Affluent Americans,” he
writes, “have no First Amendment right that permits them to achieve political
success through constant repetition of relatively unwanted ideas.” In other
words, if you publish or broadcast “too much,” government has the right, and
the duty, to silence you. Yale law professor Stephen Carter agrees: “Left
unregulated, the modern media could present serious threats to democracy.”
Sunstein calls for a “New Deal for Speech,” in which government will treat
speech in exactly the same way as it already treats property, namely, as
something that is really owned by government, and which citizens are only
permitted to use or engage in when they meet conditions established by
government to promote fairness and justice.
Arguments like
these are the deepest reason that liberals no longer follow the Constitution,
and why Americans today no longer know what the free speech clause really means.
One might raise
the objection that these are only law professors. But their view turns out to be
squarely in the mainstream. Several candidates for the presidency in 2000 from
both political parties (but not George W. Bush) called for much more stringent
limitations on free speech in the name of campaign finance reform. One of those
candidates, Bill Bradley, proposed a constitutional amendment in 1996 that would
have repealed the free speech clause of the First Amendment. Dick Gephardt, the
former minority leader of the House of Representatives, has made the same
proposal. In the end, even President Bush signed the Bipartisan Campaign Reform
Act of 2002.
I am reminded by
this of Abraham Lincoln’s remark in the 1850s about those who would read
blacks out of the Constitution and the Declaration of Independence: If that view
is to prevail, why not move to Russia, he asked, where we can take our despotism
unalloyed? Liberals today are on the verge of throwing off all pretense and
admitting openly that what they mean by equality is the abolition of liberty.
There is a
second reason that today’s liberals see the Founders’ view of free speech as
oppressive. The Founders’ regulation of sexually explicit and obscene pictures
and words, they believe – like any interference in the sex lives of citizens
– stands in the way of the most important meaning of liberty. People must be
permitted, in this view, to establish their own way of life and engage in
whatever kind of sex they please. A famous passage from a Supreme Court
pro-abortion decision sums up this liberal view. It reads, “At the heart of
liberty is the right to define one’s own concept of existence, of meaning, of
the universe, and of the mystery of human life.”
The Founders
would have replied that we are precisely not free to define our own concept of
existence and meaning. God and nature have established the “laws of nature and
of nature’s God,” which have already defined it for us. Human beings,
Jefferson wrote, are “inherently independent of all but moral law.” If men
defy that law, they are not free. They are slaves, at first to their own
passions, eventually to political tyranny. For men who cannot govern their own
passions cannot sustain a democratic government.
Our task today
is to recover the cause of constitutionalism. In doing so, the recovery of a
proper understanding and respect for free speech must be a high priority.
Reprinted
by permission from IMPRIMIS, the monthly journal of Hillsdale College.
http://www.hillsdale.edu
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