Senator McCain’s complaint came barely two months after Representative Joe Wilson of South Carolina broke traditional decorum at a presidential address to a joint session of Congress to yell, “You lie!” That disrespect was unprecedented, and the congressman was wrong on the facts, as well. At a Massachusetts town-hall meeting during the same period, Representative Barney Frank went toe-to-toe with a woman who held up a sign featuring President Obama portrayed as Adolf Hitler. She asked her congressman why he was “supporting this Nazi policy.” Frank responded: “On what planet do you spend most of your time?” The honest answer is that she is living on a planet full of provocateurs on her radio, TV, and Internet.
Former Alaska governor and vice presidential candidate Sarah Palin used the Internet to contribute to the poisonous atmosphere in town-hall meetings in 2010. Just before the congressional summer recess and the beginning of the town-hall meetings, she wrote on her Facebook page: “The America I know and love is not one in which my parents or my baby with Downs Syndrome will have to stand in front of Obama’s ‘death panel’ so his bureaucrats can decide … [a citizen’s] level of productivity in society [and] whether they are worthy of healthcare.” This misleading description of the provisions of national health-care reform was surprising, and disappointing, given that Palin regularly confronted the media for making things up about her.
Some people might regard the passionate outbursts during the town halls as over-the-top but within the limits of democracy in action. But something different was going on here. The fact that there were so many threats of violence and vicious, personal insults exchanged and posted on YouTube leads to questions about the direction of American political culture and the impact of the provocateurs. Where are they taking us? Is this where we want to go as a country? Surely there were serious people who came to these town halls wanting to get answers to questions about the health-care bill and to hear informative debate on the issue. Polls had consistently shown for decades that Americans, both individuals and businesses, have been burdened by the high cost of health care and wanted reforms. But the town-hall meetings were not about weighing the comparative impact of reform proposals. The goal seemed to be an exercise in mockery, cynicism, and even contempt for the political system. There is no way the town halls were good for debating legislation. Spectacles like these undermine the functioning of governments of any political stripe and are a threat to a vital, healthy democracy.
Robert Reich, who was secretary of labor in the Clinton administration, wrote about touring the country to see some of the town halls. He realized that the provocateur media culture had been hijacked by the lobbyists and businessmen opposed to health-care reform to create a circus that fed the right-wing radio talk shows and TV cable programs in an attempt to shoot reform down. It then inspired more threats and further hysteria at future town hall meetings.
“On our drive across America,” Reich wrote at Salon.com, “my son and I have spotted spiffy white vans emblazoned with phrases like ‘ObamaCare Will Raise Your Taxes,’ and ‘ObamaCare Will Put Bureaucrats in Charge of Your Health.’ Just outside Omaha we drove close enough to take a peek at the driver, who looked as dutifully professional as the spanking new van he was driving. This isn’t grassroots. It’s Astroturf. The vans carry the logo ‘Americans for Prosperity,’ one of the Washington front groups orchestrating the fight against universal health [coverage].” Reich went on to write that these front groups used the ethos of the provocateurs to “stage ersatz local anti–universal health rallies, and fill hometown media with carefully crafted, market-tested messages demonizing healthcare reform.”
Reich is obviously a partisan with a point of view. And not everyone opposed to health-care reform is an agent for the lobbyists or a member of the Republican Party. But his observation that professional political and industry groups were deliberately creating media spectacles to advance their financial and political interests is exactly right. It must be noted that liberals also use the tactic. When Wisconsin governor Scott Walker proposed budget cuts and new restrictions on collective bargaining for public-sector unions, opponents did not make their case in debates. They staged spectacular protest rallies that played to the cameras and microphones and starred celebrities like Michael Moore. Those protests clearly had a lot of Reich’s “Astroturf” in them. In this case unions and the state’s Democratic Party supplied the artifice. In fact, fourteen Democratic state senators actually fled the state, preventing the majority Republicans from being able to move the bill through the legislature. The spectacle of the Democrats in hiding included one state senator being interviewed on Good Morning America from an “undisclosed location.”
On the one hand, stripping public unions of their right to collective bargaining is drastic, especially without full discussion. Moreover, the unions had accepted many of the governor’s proposals—they had agreed to contribute more to their pensions and health-care plans. It was the governor’s attempt to unilaterally strip the unions of bargaining rights that set off the ruckus. Now we are left with boiling-mad, entrenched parties who are incapable of civil, reasoned debate in service to the public good. One side, the Democrats, left the legislature in an act of theater and political gamesmanship instead of agreeing to talk. But Governor Scott did not seem open to debate and persuasion, at least from the Democrats’ perspective. Nonetheless, he is the elected governor of the state of Wisconsin. As President Obama famously said: “Elections have consequences and at the end of the day I won.” This is equally true for the Republicans in the Wisconsin state house. To have Democratic legislators run away to deny the governor the quorum necessary for a vote when he had enough votes to win amounted to hijacking our republican form of government.
To me, what happened in Wisconsin confirmed that we have entered an era of stunt governing. This goes beyond the pointless screaming discussions among extremists and provocateurs on the talk shows. Now governing, too, has become one big sideshow in which serious issues and the needs of the people can’t be honestly debated and settled; government officials reduce themselves to Beltway versions of the provocateurs. They introduce meaningless legislation to ban Sharia law in Oklahoma or call for President Obama to make public his birth certificate. There is no substance to these acts except to produce headlines and more peppery grist to be chewed over on the partisan talk shows. An outrageous waste of taxpayer time and money by elected officials is tolerated and accepted. And rational voices attempting to do the hard work of seeking compromise on big issues know that highly partisan primaries will ambush and punish them for even talking to the other side of the aisle. The provocateurs have led the way to an age in which stunt governing and ineffectual leadership now are the rule. The megaphone of the provocateur culture has overwhelmed deliberation and genuine attempts at legislation. The voice of honest debate in America has been muzzled. And as those voices of honest debate have grown silent, the quality of our political institutions has been diminished. Those town-hall meetings, school-board meetings, and joint sessions of Congress determine the viability of the American experiment and all the dreams it embodies. We can’t afford to lose them.
CHAPTER 9
THE LIMITS OF FREE SPEECH
THE JOURNALIST AND HISTORIAN IN ME sees Washington, DC, as a poetic, living tribute to America’s passion for free speech in all its glory: radical, liberating, informative, artistic, rebellious, and defiant.
You can see the original text of the First Amendment enshrined on parchment paper at the National Archives. In fact, it is written all over the permanent face of the capital. Forty-five words of the First Amendment are inscribed on a four-story-high stone tablet facing Pennsylvania Avenue. The words appear on the front of the Newseum, a museum dedicated to words and images created by journalists. The pledge “Equal Justice Under Law” stands above the entrance to the Supreme Court and applies to all who come to the court to use their freedom of speech to argue a case, to present briefs for the Court to consider, or to read the decisions of
the justices based on their interpretations of the laws.
The Founding Fathers employed free speech to “solemnly publish and declare” the right to break away from colonial rule and form their own government. On the marble steps of the Lincoln Memorial is a marker showing where Martin Luther King Jr. stood to deliver his passionate “I Have a Dream” speech, an oral petition for Congress to pass the Civil Rights Act of 1964. The federal city, home to the Library of Congress and the Smithsonian museum, is filled with the history and artistic representation of our debate and dissent. It is a right protected by the Constitution.
Allowing people to speak their minds, express their feelings, and let the chips fall where they may in the marketplace of ideas is the essence of America. To many, freedom of speech is nearly synonymous with democracy in the United States and has been ever since free speech was enshrined in the Bill of Rights.
George Washington, the nation’s first president and leader of the Continental Army, translated the idea of freedom of speech and freedom of the press into the central purpose of the Revolutionary War. He told soldiers in 1783 that as they fought for freedom they fought for the right of free expression, “for if men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences … reason is of no use to us; the freedom of speech may be taken away and dumb and silent we may be led, like sheep, to the slaughter.”
Washington’s pledge lives on.
“Ours is the most outspoken society on earth,” wrote journalist and historian Anthony Lewis in his 2007 book Freedom for the Thought That We Hate: A Biography of the First Amendment. “Americans are freer to think what we will and say what we think than any other people, and freer today than in the past. We can bare the secrets of government and the secrets of the bedroom. We can denounce our rulers, and each other, with little fear of the consequences. There is almost no chance that a court will stop us from publishing what we wish: in print, on the air, or on the Web. Hateful and shocking expression, political or artistic, is almost all free to enter the marketplace of ideas.”
But even in America, the freedom to write, to publish, and to speak does have limits. There are legal limits on obscenity, as well as laws against hateful speech, threats, and intimidation. As the Supreme Court decided decades ago, you cannot falsely yell “fire” in a crowded theater, thus potentially causing people injury, without consequences. You cannot yell “bomb” on a plane or in an airport. There are sensible limits to free speech where words would cause danger or mass panic.
There are also times when public officials and presidents, during political turmoil and war, have curbed our right to free speech. The first and best-known such law in American history was the Sedition Act of 1798. Under that law it was a crime—punishable by fine or imprisonment—to speak out against the government. During the John Adams administration, a number of prominent newspaper publishers affiliated with the rival Republican Party paid fines and some went to jail for violations of the Sedition Act. The Espionage Act of 1917, a World War I–era law, punished speech the government considered “disloyal.” More than two hundred people were convicted under the act. The law was later the basis for criminal charges against newspapers that published the 1970 Pentagon Papers, revealing government officials lying about the Vietnam War.
During the cold war the House Committee on Un-American Activities had the power to put citizens in jail if they refused to testify about any connections they might have had to communist groups. In most cases, the Supreme Court upheld the committee’s right to do so, despite charges by witnesses that their free speech rights—including the right to not speak—had been violated. Numerous writers, directors, and actors, particularly in Hollywood, found themselves blacklisted due to alleged communist links. The hearings put a chill on all speech; everyone feared being mistaken for a communist.
Such examples of the government infringing our freedom of speech stand out, in part because they occur so infrequently. On the whole, the story of America is the story of our ever-increasing commitment to freedom of speech. As the nation has become more racially diverse and socially liberal, there has been more accommodation of controversial public speech and art, even as we have agreed as a society over the years to limit epithets and pejorative slang in public to allow for wider acceptance of women, the disabled, religious and racial minorities, and gays. (Many Americans of a generation ago would find today’s rigorous standards for socially acceptable speech to be inhibiting.)
Sexually explicit speech, books, and movies have often posed the biggest challenge in our history to free speech. Since the late nineteenth century, there have been numerous state and federal legislative efforts to control titillating material. Beginning in the 1860s, almost every state passed laws to ban books, such as D. H. Lawrence’s Lady Chatterley’s Lover (published in 1928), that contain sexual themes. This was followed by twentieth-century efforts to control sexually explicit movies through Hollywood’s Hays Code. But the Supreme Court, in Roth v. United States (1957), began to dismantle limits on sexual themes in art. The justices adopted a “prurient interest” standard for judging obscenity: “The proper test is whether, to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole, appeals to prurient interest.” The ruling’s impact was to loosen restraints on art while allowing for subjective assessment of “community standards.”
By 1973 the high court had swept obscenity further onto the sidelines with Miller v. California, which built on Roth and said that any sexually arousing material that violated a state law could be outlawed only if it lacked “serious literary, artistic, political or scientific value.” Once again, the limits of free speech were loosened.
In FCC v. Pacifica, in 1978, the Court decided that the Federal Communications Commission could impose limits on “patently offensive” speech being broadcast over the airwaves—but that such words were not restricted in books or stage acts.
Freedom of speech has even been extended to hateful speech, symbols, and actions, as long as they don’t incite violence. In 1978 the Supreme Court upheld the right of a group of Nazi sympathizers to march in Skokie, Illinois, a town with a large Jewish population. Along the same lines, the Court struck down a Texas ban on flag burning. And in 1992 the justices ruled against a Minnesota ban on burning a cross on the lawn of a black family because the state law did not allow for First Amendment protections for expressing an unpopular point of view. (Later the Court found that if a cross burning could be shown to be an act of intimidation, then it was beyond free-speech protection.)
In his book Nigger, Randall Kennedy, a black Harvard Law School professor, thanked the court for extending the First Amendment to hateful speech, such as the dehumanizing title of his book. In Kennedy’s thinking, by denying First Amendment protection to hateful speech, the justices would have opened the door to a greater danger to American blacks and all minorities. With subjective standards for judging hateful speech, he saw the potential for a boomerang effect, with the government and the most powerful groups in America labeling the radical speech of minorities fighting for their rights as hate speech. He summed up the high court’s handling of racially provocative language by writing: “The cumulative effect of [the Court’s] speech-protective doctrines is a conspicuous toleration of speech that many people—in some instances the vast majority of people—find deeply, perhaps even viscerally, obnoxious, including flag burning, pornography, Nazis’ taunting of Holocaust survivors, a jacket emblazoned with the phrase ‘Fuck the Draft,’ The Satanic Verses, The Birth of a Nation, The Last Temptation of Christ.… Resistance against censorship [has] always been an important and positive feature of the great struggles against racist tyranny in the United States, from the fight against slavery to the fight against Jim Crow.”
Kennedy’s position fit with New York Times writer Anthony Lewis’s conclusion—that First Amendment protections have steadily grown in the United States be
cause they are so central to America’s core beliefs and definition of itself as the “land of the free.” As Lewis wrote, “In Germany it is a crime, a serious one, to display the swastika or any other Nazi symbol. In eleven European countries it is a crime to say that the Holocaust did not happen, that Germans in the Nazi years did not slaughter Jews. So it is in Canada, and the Canadian Supreme Court has decided that Holocaust deniers can be prosecuted and punished despite the country’s Constitutional guarantee of free expression. In the United States, the First Amendment protects the right to deny the fact of the Holocaust.”
But there is one area in which the modern Supreme Court has allowed limits on free speech: national security. Currently, free speech is being tested by a massive leak of 250,000 State Department messages about U.S. foreign policy, including negotiations over war with the heads of foreign states. The Justice Department wants to prosecute Julian Assange, the man who published some documents on his site, WikiLeaks, under the Espionage Act that was used during World War I. That law has not been reviewed by the Court in light of more liberal, expansive readings of First Amendment rights in the last fifty years. A 2005 case prosecuted under the Espionage Act fell apart when a federal judge ruled that prosecutors had the burden of proving that the people involved did not just want to make money but also intended to harm the United States.
That the United States has a lenient, if not extreme, view of the right to spout almost any variety of language was reaffirmed in early 2011, when the Court ruled in Snyder v. Phelps that it is within First Amendment rights to conduct a protest at a funeral. The funeral was being held for a Marine killed in the Iraq War. The protest was against the U.S. policy allowing homosexuals in the military, although the dead serviceman was not gay. Members of the Kansas-based Westboro Baptist Church of Topeka carried signs with messages that said, “America is Doomed” and “God Hates Fags.”
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