According to the Court, the United States Constitution does not allow the federal government or a state government to proscribe advocacy of the use of force or unlawful action, “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphases added). This opinion cemented the rule that neither the states nor the federal government can pass laws to silence offensive or inflammatory statements that are not likely to result in imminent lawless action.
The new rule on free speech from and after Brandenburg—and still the law today—is that all innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to neutralize it before the sought-for result can come about. Therefore, if Brandenburg had been applied during World War I, or during America’s preoccupation with the evils of Communism, all of the aforementioned cases would have come out differently. Unfortunately, Clarence Schenck, Eugene Debs, Charlotte Whitney, Clarence Waldron, and Robert Goldstein, who spent their adulthood as prisoners for their speech, were dead by the time the Court came to its constitutional fidelity in Brandenburg.
Brandenburg is still good law for good reason. As Americans, we are brought up under the impression that we live in a “free country,” where we can say whatever we want, with very limited repercussions. Brandenburg reestablished this view, while also protecting against unthinking, reflexive violence. The Brandenburg decision ensures lively debate on key public issues, but also guarantees exposure to all kinds of opinions, no matter how disgusting or irrational. We do not enjoy hearing about Ku Klux Klan rallies, or any type of hate speech.
Mahmoud Ahmadinejad, the current President of the Islamic Republic of Iran, has called homosexuality an abomination, denied the Holocaust, and hopes someday to blow Israel off the face of the Earth. Nevertheless, Columbia University President Lee C. Bollinger invited Ahmadinejad to speak at his school on September 24th 2007. Bollinger introduced Ahmadinejad as a “petty and cruel dictator,” and Ahmadinejad’s speech was met with strong opposition from the audience, as well as protestors outside the event. At first, one might ask, “Who would welcome such a lunatic?” Looking back on the event, Bollinger’s goal was clear: he wanted to expose his students to Ahmadinejad’s views, so as to educate them and show them that such ideas cannot gain much traction in America, but the speaker of them has as much right to advance them as does any other speaker to seek to repel them.
The Court in Brandenburg essentially conveyed the same message. That is, all American governments must permit all speech, whether offensive, harmful, incendiary or not, and trust that a consensus of freedom will prevail.
Did You Get the Message?
The government frequently tries to regulate “commercial speech,” or speech that proposes a commercial transaction. After deciding that commercial speech is afforded at least some First Amendment protection in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976),15 the Supreme Court of the United States developed the modern, speech-protective rule governing restrictions on commercial speech in the case of Central Hudson Gas v.Public Service Commission of New York (1980).16 In Central Hudson Gas, the Commission issued an order banning electric utility companies from engaging in promotional advertising intended to encourage the use of electricity. The Court invalidated the order, outlining a four-part test used to determine the validity of similar restrictions.
First, the Court determines whether the speech at issue is true and nondeceptive, and whether it promotes a lawful product or service. Second, the Court determines whether the government has a substantial interest in regulating the speech. (How can any government in America have any legitimate, lawful, constitutional, national interest in regulating speech?) Third, the Court determines whether the regulation directly advances the government’s interest. Fourth, the Court determines whether the government’s restriction is more extensive than necessary to serve the interest. The fourth prong of the test is the most crucial, as it is the most difficult for the government to satisfy.
In Central Hudson, the Court found that the ban on all promotional advertising was more extensive than necessary, because no exception was made for promotional advertising of electric products that would actually reduce total energy use. Furthermore, the Commission did not demonstrate that its interests could be satisfied in a more limited way.
The Supreme Court, in the last twenty years, has used the Central Hudson test in a very speech-protective manner. In Edenfield v. Fane (1993), the Court bolstered the Central Hudson test, placing the burden on the government to demonstrate that its restriction directly advances the state’s interest.17 In the case of 44 Liquormart, Inc. v. Rhode Island (1996), the Court was faced with a Rhode Island statute prohibiting all advertising of the price of alcoholic beverages in the State, except for price tags or signs located within liquor stores and not visible from the street.18 The Court invalidated the statute.
While some of the justices simply held that the law violated the fourth prong of the Central Hudson test, Justice Stevens went one step further in his plurality opinion. According to Stevens, “[bans] against truthful, nonmisleading commercial speech [usually] rest solely on the offensive assumption that the public will respond ‘irrationally’ to the truth.”19 This statement could not be more accurate. The government cannot rob persons from saying whatever they want nor keep information or opinions away from consumers. Why is the government opposed to persons making informed decisions for themselves by recognizing their natural right to think, speak, publish, and hear whatever they wish about whatever they wish?
Unfortunately, the government does not seem to get the message. In Lorillard Tobacco Co. v. Reilly (2001), the Massachusetts attorney general issued regulations banning outdoor advertising of tobacco products within one thousand feet of a public playground or elementary or secondary school.20 The Supreme Court held that the regulations violated the First Amendment. Justice Sandra Day O’Connor delivered the opinion of the Court, in which she conceded that the State has an interest in preventing underage tobacco use, but stated that “[tobacco] retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products”21 (emphases added). The requirement of truthful information is antithetical to “Congress shall make no law abridging . . . the freedom of speech.” Is the government, which has stolen everything it owns and has lied about everything it does, institutionally capable of ascertaining the truth? Only if the truth will enhance or confirm its power; otherwise, I think not.
Despite Massachusetts’ failure to control tobacco use, the federal government found it wise to give similar regulations a shot. On June 22nd 2009, President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act.22 The word control is actually built into the title of the law! The Act restricts retail stores and many forms of print advertising to black-and-white text.23 In step with the unconstitutional Massachusetts regulations, the Act also bans outdoor advertising within one thousand feet of schools and playgrounds.24 According to opponents of the law, the ban on outdoor advertising would essentially ban tobacco advertising in many cities.25 Furthermore, the ban on colorful ads will undoubtedly restrict tobacco companies’ communications to adults.26
This law is filled with even more First Amendment problems than the regulations in Lorillard, and will undoubtedly face constitutional challenges. I have an idea: If the government hates or fears certain speech, why not combat it with more speech rather than making it criminal? If government derives its power from the consent of the governed, and if we the governed cannot ban the speech we hate or fear, how can we authorize the government to do so?
The government also tries to protect its citizens from indecency and nudity. In Erznoznik v. Jacksonville (1975), the Supreme Court of the United States struck down a Jacksonville, Florida, ordinance characterizing nudity in fi
lms displayed at drive-in movie theaters as a public nuisance.27 Specifically, the ordinance banned movies “in which the human male or female bare buttocks, human female bare breasts, or human bare pubic areas are shown, if such motion picture[s] [are] visible from any public street or place.” Such “selective exclusion” is not only odd, but blatantly reveals the government’s attempt to regulate some types of speech “on the ground that they are more offensive than others.” According to the Court, these types of restrictions violate the First Amendment. The Court also opined that the Jacksonville ordinance is “over-inclusive” in that it disregarded the context in which the nudity was portrayed. Therefore, the ordinance worked to restrict nonobscene material.
In 1989, the Supreme Court struck down a ridiculous law banning the interstate transmission of “dial-a-porn” services that communicated “indecent” telephone messages.28 Justice Byron White wrote the opinion of the Court, in which he stated that the government cannot ban messages that individuals must take “affirmative steps” to obtain. Justice White understood the government’s interest in protecting children, but reasoned that the federal statute amounts to censorship “limiting the content of adult telephone conversations to that which is suitable for children to hear.”29
The foregoing examples represent just the tip of the iceberg. Fortunately, however, the Supreme Court has generally resisted government efforts to circumvent the First Amendment and control people.
The “Fairness” Doctrine and Censorship
“Fear of ideas makes us impotent and ineffective.”
– Supreme Court Justice William O. Douglas
The so-called Fairness Doctrine debuted in 1949, as a Federal Communications Commission (FCC) rule requiring that licensed broadcast stations discuss public issues and present both sides of any debate.30 The Doctrine stemmed from the FCC’s fear that due to the limited number of radio frequencies available, and the overwhelming number of applications for licenses, broadcasters could simply report a limited number of perspectives, shutting out most other views.31 The Doctrine worked in tandem with Section 315 of the Communications Act of 1937, which mandated that radio stations offer “equal opportunity” to all legal candidates for specific offices if it permitted one candidate to use its airwaves.32
In 1969, the Supreme Court of the United States expressed its approval of the Fairness Doctrine in Red Lion Broadcasting Co., Inc. v. FCC, which involved a Pennsylvania radio station that had aired a “Christian Crusade” program attacking author Fred J. Cook.33 Exercising his right under the Fairness Doctrine, Cook requested time to rebut the program’s attacks. Red Lion, however, did not grant Cook’s request. The FCC prosecuted Red Lion’s infraction, and the Supreme Court upheld the Fairness Doctrine, ruling against the broadcast company.
The Court ruled that it made sense that with the limited spectrum on which to broadcast, it was only “fair” that stations be obligated to represent both sides of issues. The Fairness Doctrine, however, had the effect of censoring speech because it induced stations to steer clear of controversial topics that may be reported to the FCC.34 It also forced speech, a concept as antithetical to freedom as suppressed speech. As a result, very few stations did opinion pieces, and talk radio was relatively bland.35
By the 1980s, with the rise of cable television and the growing number of channels available, many more voices could be heard in the “marketplace of ideas.”36 Seeing little reason to continue the Fairness Doctrine, the FCC, in 1985, issued its “Fairness Report,” recognizing the Doctrine’s chilling effect on free expression.37 In 1987, the FCC voted unanimously to cease enforcement of the Doctrine, stating that “[t]he Fairness Doctrine, on its face, violates the First Amendment and contravenes the public interest.”38 So, the government is in essence admitting that it created and implemented an unconstitutional doctrine for decades and now it just says, “Oops, my bad”?
Especially now, there is no place for the Fairness Doctrine in talk radio. Today, news and opinions are literally everywhere. There are six cable news stations representing a plethora of political views. The Internet is a treasure trove of information and perspectives. There are hundreds of blogs and news Web sites specifically geared toward every possible political persuasion. In today’s world, the Fairness Doctrine also runs contrary to the idea of the “marketplace of ideas.” Markets are supposed to be “free,” not artificial. “Free” can only mean free from regulation by the government.
The great part about the freedom of expression is that it sparks debate among competing viewpoints without restriction. By forcing a radio station to represent both viewpoints, a station cannot take a solid position on the issues. The Fairness Doctrine essentially dilutes the station’s opinions, rather than providing fair coverage.
Furthermore, commercial radio stations are in business to make money; they get no outside funding. They must attract listeners so that they can attract advertisers and turn a profit. If talk radio stations do not give the people what they want, listeners will likely shop elsewhere. Liberals may want to hear conservative viewpoints, and vice versa, but they do not want opposing ideas to drown out their own views. Put another way, a New York Yankee fan may want to know what’s going on in Boston, but won’t necessarily want to be exposed to Red Sox propaganda on a New York-area radio station.
The First Amendment—which everyone in government has sworn to uphold—mandates that individuals be free to listen as well as free to speak.
It is important to realize the hazardous effects of the Fairness Doctrine and understand that its implementation is violative of the First Amendment and will only weaken the level of debate in this country.
Caution!
Another potential form of censorship, outside of the Fairness Doctrine, is a new bill that President Obama signed into law on October 28th 2009. This law, the Hate Crimes Prevention Act, contains very troubling language.39 According to the Act:
Whoever transmits in interstate or foreign commerce [radio, TV, Internet] any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support, severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.
This potential law can lead to “thought crimes” committed by radio or television hosts, or even Internet bloggers who are intentionally hostile toward any person, but do not actually intimidate or cause substantial emotional distress to the intended audience.
Part of First Amendment doctrine states that speakers cannot be prosecuted because they say things that merely offend people. This law, however, can be used to violate the First Amendment by permitting the federal government to prosecute people for simply intending to be offensive. The Hate Crimes Prevention Act can cause disastrous results and seriously restrict the freedom of speech. Victims of hate crimes, as well as potential victims, must be protected, but the protection cannot criminalize offensive speech. Change the channel, move the dial, boycott the products, but leave speech alone.
Conclusion
The government has historically attempted to undermine the First Amendment, and it is a foregone conclusion that it will continue to do so. We have learned over the years that Congress will abridge the freedom of speech. It is up to the courts and more importantly, we the people, to notice government invasion of this sacred right and to fight to eliminate it.
Lie #6
“The Right of the People to Keep
and Bear Arms Shall Not Be
Infringed”
After the Constitution of the United States had been enacted and the issue of the Bill of Rights rose to the forefront, the Second Amendment was “passed [by] the House by a voice vote without objection and hardly a debate.”1 The debate that did exist was centered on whether or not the right to keep and bear arms actually needed to be articulated in the Constitution, since many saw it as a natural and thus fundamental right that could not be taken away by any government, absent due pr
ocess. George Washington called the Second Amendment the teeth that gave the Constitution its bite.
Essentially, the right to keep and bear arms is a restatement of the ancient natural right to self defense; it recognizes not only the right to protect oneself from criminal conduct, but also from a tyrannical state or federal government. That is why the Founding Fathers placed it second in the Bill of Rights, following behind only the right to freedom of expression and worship. And for almost one hundred and fifty years, the federal government did not interfere with this fundamental liberty.
During the early twentieth century, the federal government’s benign attitude began to change. The progressives in the federal government began to erode this natural right, as they did many others, always with “good reason” for the “safety and security of the people.” Their descendants today argue that without gun control the U.S. will turn to anarchy; that, if armed, people will shoot each other on the streets during minor disagreements like traffic disputes. Yet when you ask those who make such claims whether they would shoot another person, the response is always, “Well, no; I wouldn’t do that.”
Each time the government creates new laws that regulate and limit our access to firearms, we are one step closer to being a disarmed and defenseless people, the very state of affairs the Founding Fathers feared and sought to prevent. Yet the government—while obtaining more power for itself—continues to deceive us, claiming that it is not trying to strip the people of the right to bear arms and that anyone can arm herself; she just needs to follow the rules. And it justifies these rules, claiming that guns cause violence and death and that gun control results in lower crime and safer streets.
Lies the government told you Page 10
