The First Amendment’s Fleeting Friends

If anyone has seen his share of First Amendment friends and foes over the years, it’s Floyd Abrams, that iconic New York attorney whose name can hardly be uttered without the words “First Amendment” somewhere in the same sentence.

But, as Floyd pointed out in a new Speaking Freely opinion paper this week, the real problem facing the First Amendment is not outright opposition – everyone claims to “care about” this constitutional guarantee, after all.  The problem lies with many of its “friends,” who invoke the First Amendment at their convenience to further their own agendas, without much regard for the underlying principle itself.  And who then sit out First Amendment challenges that don’t suit their ideological taste. 

Liberals and conservatives are equally guilty of being fair-weather friends, Floyd notes.  “Liberals vigilantly seek to protect the rights of adults to receive not-quite-obscene materials on the Internet, but seem all but indifferent to UN-sponsored efforts to ban the supposed ‘defamation’ of Islam.  Conservatives care deeply about such efforts to stifle speech, but offer little if any protection to American students when they mouth off outside of their schools.”

Floyd poses a telling question for each ideological camp: Would conservatives be so adamantly opposed to a return of the Fairness Doctrine if talk radio were leaning left?  Will liberals get over their long-held belief that money is inherently corrupting of political speech, now that candidate Obama raised staggering amounts of cash (while refusing federal funding) to reach the White House?   

The title of Floyd’s opinion paper says it all: “First Amendment Deserves More Than Fleeting Friends.”  Liberals and conservatives alike, take heed – even if it hurts.
 

Hate Speech and the First Amendment

“If you bring up the First Amendment, you’re a racist.”  In so many words that’s the message – or threat – to anyone who would dare question the constitutionality of a proposal that the government launch an inquiry into media content.     

The threat is leveled by the National Hispanic Media Coalition (NHMC) in a Jan. 28 petition asking the FCC to conduct an inquiry into hate speech in the media.  The petition was written for NHMC by the Institute for Public Representation at Georgetown Law and the Media Access Project.

Ironically, the names of both groups (“Public Representation,” “Media Access”) would seem to suggest support for freedom of speech.  Here, however, the ultimate intent of these groups is to eradicate certain types of speech (and speakers) in the media, and to chill the speech of anyone who would question that endeavor.   

The petitioners throw down the gauntlet to First Amendment challengers with this line: “The NHMC understands that those who would prefer hate speech to remain under the radar will claim that such an inquiry violates the First Amendment.”  

Let me say up front that I find racial slurs and other forms of bigoted, biased, hateful speech to be utterly abhorrent.  Such speech usually emanates either from small-minded, obtuse bigots, or from persons who are smart enough to know better but are consumed with hate, anger, and at bottom, fear.

However, I do challenge the constitutionality of an inquiry that could lead to the banning of speech – not because I’m a bigot (as the petitioners imply), but because I happen to be a staunch supporter of the First Amendment.   

Like it or not, the First Amendment was designed precisely to prevent government censorship, not only of popular speech but of unpopular speech – even so-called “hate speech.”  

There are some narrow exceptions, like speech that incites immediate violence.  That seems to be the slim reed on which NHMC tries to build its case.  The petitioners say that there has been an increase in hate speech in the media.  Then they say that there has been an increase in the number of violent hate crimes against Hispanics.  By that juxtaposition they try to imply that there is a causal relationship between hate speech and hate crimes.  

But the petitioners offer no evidence – only vague assertions like “hate speech over the media may be causing concrete harms.”  Even a 1993 report by NTIA, which the NHMC petition quotes liberally,  “found that ‘the available data linking the problem of hate crimes to telecommunications remains scattered and largely anecdotal,’ and that [NTIA] lacked sufficient information to make specific policy recommendations.”

So what’s going on here?  NHMC and its public-interest collaborators take great pains to point out that they are only asking for an inquiry into what’s happening out there, “merely the collection of information and data about hate speech in the media” – not for any overt censorship.  Oh, and of course they’re not calling for a reinstatement of the Fairness Doctrine, they are quick to note.

But as we know, FCC notices of inquiry have a way of turning into rulemaking proceedings.  And if a rulemaking proceeding aimed at outlawing hate speech had the effect of outlawing conservative talk radio … who needs a Fairness Doctrine?

This is no time for First Amendment advocates to be cowed into silence by bogus challenges to their political correctness.  Speech isn’t always pretty, or pleasing, or even palatable.  That’s why we have a First Amendment.

A Time To Celebrate Free Speech

National Freedom of Speech Week – NFSW for short – is upon us.  This week of Oct. 20-26, 2008, marks the fourth year in which freedom of speech has been remembered with a commemorative  week of its own. 

When The Media Institute launched NFSW in 2005, we knew that the success of the week would depend on the participation of many organizations that would take the free-speech message to their constituents.  In that first year we partnered with the NAB Education Foundation and four other groups.

NABEF is still a stalwart, and those four groups have grown to many times that number.  Broadcasting, cable, newspapers, movies, electronics – virtually all of the major media platforms are represented this year in addition to educational institutions and a variety of other organizations.  That has always been the point – to make NFSW an open-ended collaboration rather than a proprietary event.

What I find exciting about NFSW’s evolution is the way in which a growing number of groups are taking the First Amendment message to young people and involving them in creative  and interactive ways. 

For example: NABEF is sponsoring a competition for college students, inviting them to produce public service announcements on free speech.  The Radio and Television News Directors Foundation is conducting a similar competition for high school and middle school students.  The Thomas Jefferson Center for the Protection of Free Expression is sponsoring a poetry and songwriting contest on free-speech themes.  And the National Communication Association is encouraging the members of its college chapters to publicize and celebrate the week on their campuses.  (See the NFSW website, www.freespeechweek.org, for more details.)

It’s a well-worn cliche that today’s youth are the future of our country.  A fact far less widely touted is that they’re also the future of the First Amendment and our precious freedoms of speech and press.  But we need to do a better job of making our young people aware of these freedoms.  The activities above are good starts, and these groups are to be commended.
   
Ultimately the success of National Freedom of Speech Week will be secured when Americans in general and young people in particular demonstrate a heightened awareness of the importance of free speech and free press – and are willing to stand up for those freedoms even if means protecting speech that is unpopular or unpalatable.  

Even as we pause to celebrate freedom of speech this week, let’s be mindful that we still have a long way to go.

Sheer Lunacy: Taxing the Technologies of Freedom

Imagine that someone came up with an idea to solve the “problem” of information overload (a.k.a. “too much information”) by levying a tax on the technologies that have sparked our information explosion.  Making it too expensive for many people to blog or otherwise send and receive information through digital and Internet-based technologies would not only reduce a lot of superfluous, self-indulgent electronic clutter, but would reverse the fragmentation of opinion threatening our democracy, the theory would go.

Well, someone has come up with just such a scheme.  An environmental attorney named Dusty Horwitt published his incredibly outlandish idea in the Aug. 24 Outlook section of the Washington Post.  (“If Everyone’s Talking, Who Will Listen?”)  He proposes a “progressive energy tax” that would “make the technologies that overproduce information more expensive and less widespread.”

Anyone who has the faintest sensibility about the free flow of information must find this notion not only preposterous, but repulsive.

Forget, for a minute, that such a scheme would be utterly unworkable.  (How, for instance, would the government tax the electricity going into your computer differently than the electricity keeping the beer in your refrigerator cold?)  And we’ll leave it to our economist friends like Harold Furchtgott-Roth to point out the fatal flaws from an economic standpoint.

From a First Amendment perspective, Mr. Horwitt’s proposal is simply horrendous.  Restricting the means of disseminating information is tantamount to restricting information itself.  And information is speech, almost all of which is protected from government interference by the First Amendment. 

It is freedom of speech, and the free flow of information, that distinguishes the United States from China, totalitarian regimes, and most third-world countries.  Restricting the availability of information is a totalitarian tactic that is the antithesis of democracy, not something undertaken in support of it, as Mr. Horwitt alleges. 

Under Mr. Horwitt’s scheme, who would decide how much information was enough? Perhaps we would need a Ministry of Information to make those decisions.  And if the quantity of information were regulated, would the regulation of content be far behind?

In an earlier age, maybe Mr. Horwitt would have favored a stiff tax on printing presses and newsprint.  It’s no coincidence that the Founding Fathers created the First Amendment, because taxing the means of producing speech was a form of government coercion they found utterly repugnant. 

And perhaps it’s no coincidence that Mr. Horwitt never mentions the First Amendment or acknowledges any constitutional concerns about his proposal.  I don’t see how his scheme could possibly pass constitutional muster under the Supreme Court’s O’Brien test, for instance.  Taxing speech isn’t the same as taxing cigarettes or gasoline.

The technologies that Mr. Horwitt would like to tax into oblivion, or at least into submission, are the latest iteration of what Ithiel de Sola Pool famously called the “Technologies of Freedom.”  Give me my newspaper and my traditional radio and TV, but also give me the rollicking, raucous world of the blogosphere, satellite and Internet radio, hundreds of cable and satellite TV channels, and the incredible wealth of information available on the Web.  These are today’s “technologies of freedom” that make our democracy what it is. 

How could anyone be fearful of “too much information”?  Information is the lifeblood of democracy, and the more the better.  The idea of restricting speech by taxing the messenger is repulsive indeed.    

Is China Big Enough for Free Speech?

The Olympics are now in full swing in Beijing after a spectacular opening ceremony that displayed many of the Chinese people’s finest attributes.  The Chinese government and free speech, however, are another matter.

Our friend Kurt Wimmer has written an excellent piece for us on this topic titled “The Beijing Olympiad: A Fleeting Opportunity for a Freer China.”  Kurt notes that by July, Chinese officials had imprisoned almost 50 Chinese writers whose opinions the government found subversive or threatening.  And the clampdown was not limited to native Chinese.
 
Western journalists were ordered out of the ravaged Sichuan province following the earthquakes there, and at least 10 foreign journalists covering Tibet have had their lives threatened since March.  Meanwhile, the “Great Firewall of China” blocks access to Internet content that criticizes the government, lest Chinese citizens hear anything untoward about their leaders.

The drumbeat continued in the days just prior to the games with stories about journalists denied access, activists deported, and even the U.S. press corps plane being delayed for a baggage search.  Subtlety is not in the playbook of Chinese censors, from all indications.

Still, Kurt finds a glimmer of hope in all of this.  If the United States and other nations can bring enough media pressure to bear, perhaps the will of the Chinese people can prevail and usher in a new era of greater transparency, he says. 

It’s a big “if,” as Kurt acknowledges.  There are no guarantees that free speech will take root just because the Chinese are hosting the Olympics.  But as the Games focus the world’s attention on China, they do provide an opportunity – however fleeting – to begin a process that could just lead to greater freedom of speech and press. 

Tony Snow, RIP

Last October The Media Institute presented Tony Snow with our Freedom of Speech Award. It was, among some people, a controversial decision. Tony was a well-known conservative commentator even before he was press secretary to George Bush, facts seen by some as disqualifying him from receiving such an award.

The sad news of his passing reminds me of why we did it, and of how glad I am that we did it in time.

Truth be told, the seriousness of Tony’s illness factored into the decision. But that had more to do with when we gave it than with the reason for giving it. The reason we gave the award to Tony was because we thought he demonstrated such grace and courage in the face of an impossible situation.

How many people, even without suffering a life-threatening illness, could serve so well a president so unpopular? And isn’t that at the very heart of the virtue in freedom of speech?

As Tony’s presenter that night, the wonderful Ann Compton of ABC, put it: “In America’s history, it has often taken courage to defend freedom of speech. Courage to speak out. Courage to return day after day when you can expect scorn and repudiation…

“It also takes courage to step back in front of the lights and cameras, your hair grey and thinning, your suit loose and limp, and your heart anguished about what really means the most to you—your wife Jill and your three sweet children. In that courage, Tony, you have earned and will always have not only our respect, but our affection.”

Some People “Get It.”

Imagine our relief, just when we thought that nobody cared, as we read the editorial in the Dallas Morning News.  Published on July 4th, and titled "All hail the First Amendment," it recounts the ordeal of Canadian journalist Mark Steyn, the subject of recent posts here. The editorial is reprinted below, with permission, in its entirety.

Editorial: "All hail the First Amendment"

On the Fourth of July, the day we celebrate America’s liberty and independence, it’s worth contemplating how much more free America is than most other nations in the West.

Why?  The First Amendment to the U.S. Constitution.  How very much depends on these 45 words:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

"The First Amendment really does distinguish the U.S., not just from Canada but from the rest of the Western world," says writer Mark Steyn, who’s learning it the hard way.  Mr. Steyn and Maclean’s, the top-selling Canadian magazine, have faced human rights charges in British Columbia.  Their alleged offense?  Maclean’s published a Steyn essay critical of Islam, which prompted Muslim activists to
file formal charges accusing the writer and the magazine of violating Canada’s hate-speech laws.

Last Friday, the national Human Rights Commission dismissed the charges, but they’re still pending in front of a provincial panel.  The victory is less than what it appears.  For one thing, defending against the charges cost the magazine hundreds of thousands of dollars.  For another, it is frightening to think that a human rights panel has the right to decide what can and cannot be published in a
free country.

It’s not just Canadian critics of Muslims whose speech is under attack.  The Alberta Human Rights Commission ruled that the Rev. Stephen Boissoin had broken the country’s hate-speech laws by criticizing homosexuals.  Last month, the panel ordered the minister to pay damages, apologize and desist from criticizing homosexuality for the rest of his life.

Similarly, the Ontario Human Rights Commission recently ordered a large Christian social service ministry to abandon its statement of faith as discriminatory against gays and to send its employees to diversity training.

Free speech also is in trouble in Europe.  Last month, a French court fined actress and animal rights activist Brigitte Bardot $23,000 for violating hate-speech laws.  Complaining about Islamic sheep-slaughtering customs, Ms. Bardot had said Muslims were "destroying" France.  In May, British police arrested a teenager for calling Scientology a "cult" at a peaceful demonstration.

Also that month, police in The Netherlands arrested Dutch cartoonist Gregorius Nekschot on suspicion of incitement to hatred and discrimination for cartoons alleged to be anti-Muslim.  The Dutch police, who have established a branch to
investigate cartoons, recently brought in proprietors of a Website critical of multiculturalism to explain comments left on the site.

None of this could have happened in the United States, where the right to say what’s on your mind, no matter whose feelings it may hurt, is considered vital to the self-government of a free people.  The First Amendment means that in our liberal democracy, we have to tolerate speech many of us find obnoxious or offensive.  But it affirms that enduring hateful or distasteful oratory is far less dangerous than giving taboos on controversial speech the force of law.

It is not too much to say that all of our freedoms depend on the First
Amendment, for if we cannot speak and worship freely, we are on the road to tyranny.  On Independence Day, and every day, we must be grateful for the foresight of the Founders, who understood as no others in their position had before or have since, how sacred freedom of speech is.

When Thomas Jefferson famously said that he would rather have newspapers without a government than government without newspapers, he meant that freely and widely expressed opinions are the true foundation for a successful government of the people, by the people and for the people.

In an observation that cannot be improved upon, the Colonial-era Freeman’s Journal editorialized: "As long as the liberty of the press continues unviolated, and the people have the right of expressing and publishing their sentiments upon every public measure, it is next to impossible to enslave a free nation."

God bless America – and God bless the First Amendment, which protects and serves rich and poor, liberals and conservatives, secularists and believers, and all those privileged to call themselves Americans.


 

The Silence of the Lambs

The failure of mainstream U.S. journalists even to mention the abominable trial of Canadian journalist Mark Steyn speaks volumes about the state of the industry, and about the speech-killing nature of political correctness.

As my colleague Rick Kaplar posted here last week, Steyn is being tried in Canada by one of that country’s “human rights” tribunals.  His crime?  He wrote a book, subsequently excerpted in the Canadian journal Maclean’s, to which members of the Canadian Islamic Congress took offense.

Never mind for a minute the impact of this on Mr. Steyn, or on those Canadians who, even without the benefit of a First Amendment, understand and believe in freedom of speech.  The stomach-turning aspect of this affair is the ovine response of virtually the entire U.S. press corps.

With the exception only of a handful of conservative journalists, plus a New York Times reporter writing for the International Herald Tribune, the saga of Mark Steyn and his persecution by a kangaroo court, formed under the auspices of Canada’s Human Rights Commission,  has been completely ignored.

In private conversation, a number of explanations have been offered for this phenomenon: It is a foreign affair; the U.S. media, newspapers particularly, are preoccupied with more pressing matters; worse things are happening to journalists, and to freedom of speech, all over the world.

I don’t buy any of it.  In the first place, we’re talking about Canada, not Eritrea.  Secondly, how much effort or money does it take to write an editorial, news, or feature story?  And as for worse things happening, well, that may be, but this one is quite bad enough.

A better explanation would be that, second perhaps only to the academy, U.S. media are the most politically correct institution in American life.  And few people are more politically incorrect than Mark Steyn.

In February of this year Christopher Hitchens wrote a piece for Slate called “To Hell With the Archbishop of Canterbury.”  Written in the saucy style for which he’s well known, Hitchens’s ire was prompted by a speech given by the Archbishop in which he suggested that  aspects of sharia, or Islamic law, should be adopted in Britain as it would ‘help maintain social cohesion.’

There is little doubt that, had Hitchens’s piece been published in a Canadian newspaper or magazine, it would have given offense to the same people who have initiated the proceeding against Mr. Steyn.  The difference, of course, is that Hitchens’s piece wasn’t published in Canada, and so therefore neither he nor his publisher can be fined or sanctioned.

As shown in the link above, the excerpt from Steyn’s book is disturbing and provocative.  But it is also unmistakably political speech — the kind, in other words, generally accorded the highest value by those who believe the press is indispensable to a democratic society. 
 
Fortunately, there are some Canadians who understand that point.  In a press release issued last month, the British Columbia Civil Liberties Association announced it had applied for leave to intervene in Steyn’s trial.  In the language of the president of the association: “Freedom of expression is a fundamental democratic value.  Citizens of a democracy should be trusted to form their own judgments about the views expressed by others, including controversial and offensive comments.  The BCCLA will seek to protect basic Charter rights so that opinions on all matters, including religion, can continue to be debated freely and without fear through all media of communication.”

Despite the mounting evidence of the harm it causes, political correctness in the U.S. has so far escaped the opprobrium it  deserves.  Far from being the language of the enlightened, political correctness is the lingua franca of those who believe in control rather than debate, the very essence of totalitarianism.