Mary Bailey, Editor
Weighing First Amendment Boundaries
Some time back, I googled “First Amendment absolutism” to see what the experts had to say about strict adherence to the amendment’s 1791 wording. There I discovered “Speech & Power: Is the First Amendment Obsolete?” -- a collection of essays by top scholars and lawyers published in the July 21, 1997 issue of Nation magazine. The very title suggests that times were different then; but the pro and con arguments could have been written today. They can help us decide if there’s anything we can do, legally and ethically, to challenge the media’s exploitation of children and still honor the First Amendment. Below are shortened versions of each position. Read them over and see what you think.
Ronald Conyers and David Skover, professors of law at Seattle University:
“Speech is power,” say Conyers and Skover. “Grant that, then rethink your thinking on the First Amendment.” In a true democracy, power must be limited and dispersed. Yet yesterday’s free speech principles have morphed into today’s power principles. Starting in 1886, when the Supreme Court began treating corporations as persons, commercial speech by the likes of media conglomerates and tobacco companies have received increasing First Amendment rights.
“The trend of ceding power to the powerful represents the collapse into libertarianism, the triumph of corporate liberty over social equality,” the authors say. “Equality is really no longer one of the central principles of the First Amendment. Incredibly, it is now a First Amendment evil.”
The Supreme Court says that money is speech [Buckley v. Valeo, 1976]. But money is more than that: It is power. Now that money-speech has absolute protection, corporations sway elections, advertisers shape media content, conglomerates grab for unobstructed rights to the public airwaves, and “citizen democracy succumbs to corporate democracy.” The authors urge us to free the First Amendment from “ the lawyers and law professors” and widen the discourse to include other perspectives.
Floyd Abrams, First Amendment lawyer:
Hardly anyone really believes that we should protect the speech of those with whom we differ,” especially “this generation of liberals,” Abrams says. Liberals are unhappy with a First Amendment that protects wealthy, powerful speakers, yet they are pleased when it protects persons hawking radical leaflets. But the First Amendment is not just the property of liberal Americans. “It is not the New Deal redrafted and expanded so as to apply to speech.”
The First Amendment does not grant power to the government “to decide who may speak about what.” Rather, it protects anyone who wishes to speak, and is based on a distrust of government gleaned from the abuse of government power throughout history. That is why the Supreme Court in 1976 said that restricting some speech so that other voices may be enhanced “is wholly foreign to the First Amendment.” Abrams also warned that liberals are far more often targets for those who would put limits on the First Amendment, and they “should at least recall that they stand next in line.”
Owen Fiss, Yale Law School professor:
“No one is an absolutist,” says Fiss. Even those who pride themselves on being absolutists will acknowledge that state protection is necessary to protect certain vital social interests, such as regulating against harassment or incitements to violence. “The issue is not whether regulation of speech is ever permissible but when and on what terms.” So those who call for regulating commercial advertising, campaign spending, or more public access to the media must not be viewed as betraying the First Amendment. “The same is true of those critical race theorists and feminists – so often and so unfairly scorned by this journal – who have dared to argue for regulation of hate speech and pornography.”
Behind the seemingly neutral façade of First Amendment absolutism lurk “gross inequalities of social and economic power.” So-called neutrality jeopardizes important social goals such as equality and free speech itself. “A public discussion in which only one side is presented or heard is no discussion at all.” Those liberals who turn to the state as the only force capable of countering commercial powers have “a proper regard for free speech values.” They are prepared to insist that the state show that any regulation of speech further a compelling social interest.
True neutrality doesn’t mean that government can’t make content distinctions. There is only one crucial proviso: The government must have some other reason than disagreement to justify using its power.
The First Amendment calls for judgment and discernment, just like any other any other constitutional provision. That task cannot be evaded, says Fiss, “by repeating a truism – ‘no law’ means ‘no law’ – that stops all conversation and trivializes the challenge that confronts us.”
Wendy Kaminer, president of the National Coalition Against Censorship:
Kaminer articulates the civil libertarian position that defending the First Amendment means defending the rights of those we hate. Government, she feels, should be neutral on the question of what constitutes “good” and “bad” speech. “The extensions of First Amendment protections to bad guys, like political fat cats and tobacco companies, doesn’t require us to ‘rethink’ our notions of free speech.” After all, she says, the government is not necessarily a good guy, so we don’t want to give it power to regulate speech.
Acknowledging that unregulated speech is not free and that money can buy it, Kaminer insists that we do not have to limit the speech rights of media conglomerates and other fat cats. Instead, she says, we can demand that government regulate corporate behavior that is not protected by the First Amendment. For instance, public financing of political campaigns “could provide a little redress” for the inequality between the fat cats and the rest of us without compromising the First Amendment.
Cass Sunstein, professor of law at the University of Chicago:
The United States has two free speech traditions, not just one, says Cass Sunstein. The first, derived from Justice Oliver Wendell Holmes, speaks of “the marketplace of ideas.” The second stems from Justice Louis Brandeis and holds that an inert citizenry is a menace to freedom and that “public discourse is a political duty.” For decades there was harmony between the two approaches. “Free speech absolutism is mere rhetoric,” says Sunstein. “The real issue, as Holmes and Brandeis agreed, is not whether all speech is protected but how to draw sensible lines.”
Then, about 15 [now 30?] years ago, the two conceptions diverged sharply. Holmes’s marketplace version lead to protecting tobacco-company advertising and deregulating mass media rules. Brandies’s democracy approach became mirrored in currently unsuccessful efforts such as campaign finance reform. Reforming campaign finance a la Brandeis “is a legitimate effort by a sovereign public to ensure that economic inequities…are not turned into political inequalities,” Sunstein argues.
Sunstein’s central point is that the First Amendment must not be turned into a version of economic laissez-faire. “Commercial advertising restrictions, campaign finance reform and regulation of mass media need not undermine [the amendment’s historic purpose of democratic deliberation] and may instead promote it. … Well-designed reforms should be understood not as unconstitutional abridgments of the free speech principle but as consistent with the highest aspirations of that principle.”
Steven Shapiro, legal director of the American Civil Liberties Union:
“The First Amendment is not broken, but it may break if we keep trying to fix it,” says Shapiro. If we abandon the principle of modern First Amendment law that government cannot limit expression based on the content of the speech, then the right to engage in political discourse becomes a function of power and influence.” Tobacco giants, political potentates and media conglomerates will not lose out in that refashioned First Amendment world. The losers, as always, will be those who speak out on behalf of the poor and unpopular.
Changing the First Amendment rules will not close the gap between rich and poor. We should keep the rules that have fueled the union, civil rights, and antiwar movements of the 20th century – through demonstrations permitted only because the courts said that government could not ban speech. As for the relationship between money and speech, the tobacco industry’s money does not always guarantee victory. Despite money, ideas matter. Besides, the New York Times, Planned Parenthood, the ACLU and NOW are as much a corporation as a tobacco company.
There are other ways to address media conglomeration and corporate speech: Enforce the antitrust laws or alert people to the dangers of smoking, etc. Information is much more powerful than censorship.
C. Edwin Baker, law professor at the University of Pennsylvania:
Must the left be the ally of corporations that use the First Amendment to overturn progressive legislation? Liberals err when they don’t reflect upon and contest the amendment’s meaning, Baker says. For example, commercial advertisers may wrap themselves in the First Amendment, but scholars from John Stuart Mill to Justice Hugo Black have agreed that commercial advertising is completely outside the reach of the principle of free speech. Mill sharply separated free trade from individual liberty. For instance, even if liberty requires that prostitution be allowed, Mill said, society may be permitted to ban ads promoting the purchase of sex.
According to liberal Supreme Court justices [not cited], “self-expression, self-realization, and self-fulfillment [are] not at all furthered by corporate speech. … [It does] not represent a manifestation of individual freedom or choice.” Marketplace survival requires a tobacco company to promote cigarettes even if its owners think smoking is unwise. By contrast, persons who argue that “smoking kills” are expressing their views or values.
The First Amendment is protected because society is served by press freedom. Nevertheless, Baker says, having a handful of conglomerates own most of the media is “a threat to democracy.” So he asks, “Does the First Amendment prevent a government response?”
Newspaper corporations have argued that the First Amendment allows them to own as many broadcast stations as they want. Cable operators have said that the First Amendment frees them from having to carry local broadcast channels. The media has even claimed First Amendment exemption from antitrust and minimum-wage laws. Quoting Justice Black, Baker notes that the amendment does not afford corporations “a refuge if they impose restraints upon that constitutionally guaranteed freedom.” Freedom of the press “does not sanction repression of that freedom by private interests.” Therefore, Baker concludes, “progressives should strongly, but not blindly, support the First Amendment.”
Kathleen Sullivan, professor of law at Stanford University:
Eliminating free speech rights for media corporations is “unnecessary and unwise,” writes Sullivan. First, there are serious problems with where to draw the line. Viacom may be a corporation, but so are the ACLU and The Washington Post. If you exclude only for-profit media corporations from First Amendment protections, you eliminate most newspapers, publishers and broadcasters – “an outcome incompatible with freedom of the press,” she says.
Second, Sullivan says, don’t forget that the First Amendment has more than one purpose. It also ensures the free flow of information and prevents the government from “entrenching itself in power by suppressing contrary views.” Therefore she counsels against allowing the government to regulate speech “no matter who or how wealthy the speaker.” For instance, limiting campaign contributions makes it harder for challengers to raise the money needed to offset the advantages of incumbents.
Nothing in current First Amendment law stops the Justice Department from enforcing anti-trust laws against media conglomerates that have excessive market power, Sullivan says, so long as the goal is economical, not ideological, and that its reach is not overly broad.
The above is a version of an October 2006 article published in From NOW On.
What is good sex supposed to be like, asked a high school girl. We of the 1970s generation of feminists had no answer. We only knew what bad sex looked like. Our expectation was that the next generation, freed from the old, male-defined Freudian hang-ups, would develop a healthier, safer, less demeaning alternative. But we underestimated the mainstream media's self-interest. They "added value" to their content by inserting soft-core pornography into their movies, magazines and fashions. Now, approximately two generations – young girls and the parents of young girls – have grown up in a soft-core environment. So here's the second question: Will the generation coming of age be the one to finally break the mold and answer the first question?
Last October I decided not to publish a story. It involved Yale's prestigious Delta Kappa Epsilon, fraternal home of both presidents Bush. DKE had ordered its pledges to march around campus chanting something very ugly against women, so arrogant and demeaning that I will not repeat it here. Now I'm happy to report that Yale has taken decisive action. It banned the fraternity from recruiting and from other campus activities for five years, asked the DKE national office to suspend the chapter for the same amount of time, and disciplined several fraternity members. (Associated Press, 5-18-11) Yay, Yale.
Field trip to Hooters. En route to Baltimore's National Aquarium, a group of Berwick (Pa.) Middle School eighth-graders ate lunch at Hooters, "a restaurant better known for its busty waitresses than its food." Only 15 or 20 students ended up there, as the rest of the group of 100 were scattered among various eateries. Superintendent Wayne Brookhart said he regretted the coed chaperones' choice of restaurant, but pointed out he'd received no complaints from parents. (San Francisco Chronicle/AP, 1-01-11) No mention was made of the sense of male entitlement given the boys or the inward shame inflicted upon the girls.
Gail Dines, author of Pornland, discusses the effect that observing girls in sexy clothes has on
pedophiles: "Wearing thongs, low-cut jeans, short skirts, and midriff-revealing tops, [elementary school] girls now appear 'hot,'" she writes. "Chris, one of the men in the Connecticut prison I interviewed, told me that he had stopped going to the mall because 'looking at the girls aroused me and I couldn't stop looking at them.' To this Greg added, 'I do respond to the sexuality of their dress that they don't even know they're projecting.' Both of these men were talking about prepubescent girls." (Dines, Pornland: How Porn Has Hijacked Our Sexuality, 2010)
Kids and Violent Video Games
Any day now, the Supreme Court should decide Brown v. Entertainment Merchants Association, a case the court's blog called "of interest to everyday Americans." Argued before the court last November, the issue is whether the First Amendment permits any limits on offensive content sold to minors, or if a state's law restricting the sale of violent video games to children violates the First Amendment right to free speech.
The video-game industry argued that, unlike similar laws banning the sale of pornography to minors, the California's ban on video-game sales and rentals violates the First Amendment. In the oral argument, the Justices considered kids' exposure to violence in many contexts – including fairy tales, movies, and comic books – and questioned whether there was a societal consensus (as there is with sexually explicit.
But it was a judicial philosophy – "originalism" – that caught the attention of constitutional gurus. Justice Scalia emphasized that it was "always understood" that freedom of speech did not include obscenity, but that was not so for portrayals of violence. Scalia's group believes we should look to the Constitution's "original intent," or what the Framers were thinking when they wrote it. An opposing group believes the Constitution is a living, breathing document that was not intended to have a fixed meaning, but was expected to adapt its application to an evolving society. (www.SCOTUSblog.com, 11-07-10) This case was formerly titled Schwarzenegger v. EMA.
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