Chapter 1: Is Free Speech Threatened?
Chapter 1 Preface
For many people, the American flag symbolizes all that is great about the United States, including the basic freedoms guaranteed in the Constitution and the Bill of Rights. But occasionally the flag becomes a symbol of protest— when it is burned or otherwise desecrated by persons opposing U.S. policies. In two separate decisions, in 1989 and 1990, the Supreme Court ruled that flag desecration is a constitutionally protected act of expression.
Many Americans disagree with this ruling and consider flag desecration an act of betrayal and an insult to veterans who have fought and died for their country. In 1995, and again in 1997, the House of Representatives passed a Constitutional amendment banning flag desecration; each time, the amendment failed to pass in the Senate. Patrick H. Brady, a retired major general and staunch supporter of a flag amendment, imagines how the nation’s fallen veterans would respond to the knowledge that flag desecration remains legal:
There is one issue which would hurt the most, which would turn them over in their graves, to see that it is legal to desecrate the Flag for which they fought. It is the only family portrait of all Americans, it is the sacred shroud which embraced their coffin, and which was the tissue for the tears of their loved ones.
Critics of the proposed amendment insist that such a ban would be a violation of one of the very freedoms the flag...
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Censorship Threatens Freedom of the Press
Project Censored was founded in 1976 as a seminar in mass media at Sonoma State University in Rohnert Park, California.
The primary objective of Project Censored is to explore and publicize the extent of news censorship in our society by locating stories about significant issues of which the public should be aware, but is not, for a variety of reasons.
Since its inception, the Project has hoped to stimulate journalists to provide more news coverage of under-reported issues and to encourage the general public to demand more coverage of those issues by the media and to seek information from alternative sources.
The essential issue raised by the Project is the failure of the mass media to provide people with all the information they need to make informed decisions concerning their own lives. Only an informed electorate can achieve a fair and just society. The public has a right to know about issues that affect it and the press has a responsibility to keep the public well-informed about those issues.
The Media Myth
We have all been brought up to believe in the power and value of the press— the great watchdog of society. It is the nation’s ombudsman. It is the muckraking journalist with printer’s ink in his blood who is willing to sacrifice all to expose evil. We were taught to believe The New York Times prints “All the news that’s fit to print.”We believed The Chicago Times when it...
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Book Banning Threatens Free Speech
“I’m completely appalled at the excerpts. I feel that this is a degradation of the human race.”
—September 1998 statement by Prince William School Board member John Harper Jr., discussing parents’ complaints about the books Nightjohn, Go Tell It on the Mountain, and Slaughterhouse Five on school summer reading lists.
Banned Books Week [September 26–October 3, 1998] is a time to celebrate literature and examine the roots of intolerance and ignorance that fuel efforts to censor the arts and free expression. Book censorship is neither infrequent nor an issue of the past. Books with clear artistic and cultural merit are still challenged frequently by those who want to control what others read.
But . . . is book banning really still an issue? Read on . . .
Examples of Book Banning
In 1998, school officials in Prince William County, Maryland said they would review three books on the school system’s summer reading list after a parent complained that the books contain profanity and explicit sex scenes. The books in question were Nightjohn by Gary Paulsen, which was on a seventh-grade reading list; Go Tell It on the Mountain, by James Baldwin, on a ninth-grade list; and Slaughterhouse Five by Kurt Vonnegut Jr., on an 11th grade list.
Two of the three books are no strangers to challenge. During the 1995–96...
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Speech Codes Threaten Free Speech on College Campuses
Combatants in the culture wars of today’s contemporary universities generally focus on issues of curriculum and scholarship, and critics of these prevailing practices have a great deal to target: a so-called multiculturalism that generally is merely a celebration of the cultural Left, wherever it is found; the spread of a pedagogy that seeks disciples rather than critically minded inquirers; the elevation by literary studies of pathology into high theory; the degradation of whole fields of the humanities and social sciences into tendentious “oppression studies”; and scholarship in which one no longer can distinguish between parody and the real thing.
These are not my themes today, however, because of the very phrases that I was forced to use to describe them—combatants, curriculum, scholarship, and critics—all of which denote agents and phenomena that appear in the open, subject to debate. Universities have personnel committees and curricular committees with, almost everywhere, college-wide participation by scholars and teachers who know better and are free to act, but who simply have abandoned their intellectual responsibilities. . . .
Folly without coercive power is not the direct enemy of liberty. Rather, those things that threaten free and open debate and those things that threaten academic freedom are the direct enemy of liberty. Such threats exist most dangerously at universities not in curriculum and scholarship, but in the...
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A Flag-Burning Amendment Would Threaten Free Speech
On February 13, 1997, House Rules Chairman Gerald Solomon (R-NY) and Rep. William Lipinski (D-IL) introduced H.J. Res. 54, a proposed constitutional Amendment that reads as follows:
Congress shall have power to prohibit the physical desecration of the flag of the United States.
Congressmen Solomon and Lipinski thus seek to become authors of the first constitutional amendment since Prohibition designed to put people in jail and the first in our history to strip First Amendment freedoms from the Bill of Rights. Congress should act with common sense and reject the first amendment to the First Amendment.
The Amendment is explicitly aimed at eviscerating the Supreme Court’s 1989 decision in Texas v. Johnson, which struck down a one-year criminal sentence and $2,000 fine imposed by Texas on Revolutionary Communist Party member Gregory Johnson, who burned an American flag outside the Republican National Convention in 1984.
The Bedrock Principle
Justice Brennan’s opinion for the Court in Texas v. Johnson stated the idea that lies at the heart of the First Amendment: “If there is a bedrock principle underlying the First Amendment, it is that Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” This principle “is not dependent on the particular mode in which one chooses to express an...
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Limits on Campaign Spending Threaten Political Speech
One wintry day in January, 1776, an unsigned pamphlet appeared on the streets of Philadelphia. Its title was Common Sense. In the most inflammatory terms, it urged the American colonists to declare their independence from Britain.
This is what Common Sense had to say about the King of England’s ancestry: “A French bastard landing with armed bandits, and establishing himself King of England against the consent of the natives. . . .”
This is what Common Sense had to say about King George himself. “He hath wickedly broken through every moral and human obligation, trampled nature and conscience beneath his feet; and by a steady and constitutional spirit of insolence and cruelty, procured for himself universal hatred.”
Thomas Paine wrote Common Sense. Paine’s revolutionary rhetoric confounded the political class, but it struck a chord among the colonists. Common Sense sold more than 100,000 copies and provided the spark that lead to the American declaration of independence from Britain.
The Urge to Regulate Political Speech
Tom Paine was lucky that King George wasn’t running for reelection in 1776. Because if he had been, and today’s so-called campaign finance reformers had been around, the Federal Election Commission would have regulated the pamphlets Tom Paine printed.
If there had been elections in 1776, the campaign finance regulations being...
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Censorship Does Not Threaten Freedom of the Press
It’s a curious but not entirely surprising fact that, in the age of media profusion, we dream of media repression. I’m speaking of the Censorship Fantasy, which varies in detail but always features the same general plot line: (1) you are living under a wicked regime that maintains power by censoring the truth; (2) you are one of the enlightened few who see through the appalling lies and cover-ups; (3) it is your mission to defeat the censors and thereby save civilization, which you will do, though it most likely will cost you your life.
An Example of “Censorship”
The Censorship Fantasy is common today—many participants in talk radio suffer from it to an almost terminal degree—but very few of us get to live it out in reality, to feel the jackboot actually coming down on our keyboards. So I was naturally tickled and proud to learn that The New Republic had been censored. The news comes to us from Project Censored, an organization based at Sonoma State University in California, which issues an annual list of “the year’s top 25 censored news stories.” The winners for 1996 are out, and a New Republic piece came in third—the bronze medal of censorship! Who said it couldn’t happen here?
Yet there are some strange aspects to this honor that I’m still puzzling over. One is that the censored piece, a column written by my colleague John B. Judis—who seems, when I see him around the office, to be...
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The Extent of Book Banning Is Exaggerated
This week (September 21st–27th, 1997), the nation celebrates National Banned Book Week, a week-long propaganda fest and consciousness-raising extravaganza of the American Library Association’s Office for Intellectual Freedom. The week’s promoters parade a list of books that they charge have been banned in libraries and schools across the nation, talk about the importance of First Amendment Rights, and lament the rise of censorship from what they consider to be the ill-informed and malicious enemies of freedom and American democracy—a group that includes the usual conservatives of various flavors and, of course, that enemy of everything dear to the national consciousness, the Christian Right.
The ALA’s Dishonesty
Now to begin with, most Americans have serious problems with the sort of radical libertarianism that the American Library Association (ALA) espouses. Most Americans don’t buy into the notion that public libraries should buy anything, no matter how pornographic, or that schools should teach anything, no matter how controversial. The majority of Americans believe in community standards, and they stubbornly insist that schools, libraries, and other social institutions ought to support those standards. Even so, the real difficulty with the American Library Association’s Banned Book Week isn’t its philosophy, however much people may question the ALA’s anything-goes-approach to building a library collection and managing a...
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Regulations on Harassing Speech Do Not Threaten Free Speech on College Campuses
Slogans have their place. I have put bumper stickers on my car from time to time, recognizing that they can’t treat the full complexity of an issue. But sometimes it is important to make things simple, and a good slogan can do that. “No Speech Codes” is a particularly persuasive slogan. Alan Kors is colorful in uttering it and just as persuasive when he gives his Voltairian advice on how to deal with any campus speech code: “Crush this infamy!”
That got him a lot of amens. And how could any believer in intellectual freedom at the university be for a campus speech code? I never thought of myself as a proponent of “speech codes.” Only after I drafted a campus regulation at Stanford did I discover that apparently I had written one. And not surprisingly, once it was seen in that light, once that label was affixed to it, it was a dead duck. A state court recently struck it down.
I’d like to ask you to think a little bit further about the slogan “No Speech Codes,” and how its very effective rhetorical force worked out in this case. I don’t suppose any of you will say amen to what I have to say, but maybe I can get some of you to see a problem here that is not a matter for slogans or amens on either side.
I’m going to take it as given that there is a legitimate case for universities prohibiting harassment of students on discriminatory grounds, grounds of race or sex. The case is roughly the same as the case for...
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A Flag-Burning Amendment Would Protect Free Speech
Supporting the flag amendment is a way of supporting freedom of speech. Does that surprise you? If you followed only the media’s coverage of the issue, it would. For the media—like most opponents of the amendment—insist on framing the question as “protecting the flag versus protecting free speech.” This is a clever move. But it is a misleading, cynical maneuver. It is time to set things straight.
I want to make five points. Because our opponents have distorted the issue, I’ll start by countering their most negative arguments. Then I’ll make the case for the amendment as a much-needed enhancement of freedom of speech.
Amending a Mistake
We’re often told the flag amendment would “amend the First Amendment.” This is nonsense. All it would “amend” is a recent mistake by the Supreme Court.
For more than 200 years, constitutional lawyers—beginning with James Madison, the “father” of the First Amendment—believed that the people, through their government, could protect their flag from desecration. The people exercised the power. No one supposed it abridged the freedom of speech. In our own era, great champions of free speech endorsed the practice. One was Justice Hugo Black, the leader in developing modern First-Amendment law. Another was Chief Justice Earl Warren. The practice and endorsement of flag protection is, therefore, both deeply rooted and of very long standing in our constitutional...
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Limits on Campaign Spending Do Not Threaten Free Speech
Campaign-finance scandals dominate the headlines. Public sentiment for reform is at its highest level since the Watergate era. Yet it seems like the opposition to reform in 1997 was bolder, and the odds are getting longer. Even the McCain-Feingold bill, which many reformers characterize as only a weak first step, faces heated and determined opposition. [The McCain-Feingold bill was defeated in March 1998.] Free marketeers aligned with the American Civil Liberties Union (ACLU) and the Christian Right denounce attempts to reform the loophole-ridden, corruption-breeding system we now live with as attacks on the sacred right of free speech.
It is no longer laughable in Congress to talk about getting rid of all limits on campaign contributions. “The reforms enacted after Watergate failed,” critics say. “Let’s just get rid of all restrictions, disclose everything, and let the public decide.” That such a proposal gets a respectful hearing in Congress and on the editorial pages of major dailies shows how far the debate has moved.
Now, more than ever, progressives need to make federal campaign-finance reform a priority. And while it is important to keep long-term goals in mind, incremental solutions may offer our best chance to make progress toward more sweeping change. Giving up altogether is simply not an option, unless we don’t care that the public thinks Congress is up for auction, that voter turnout is at an all-time low, and that...
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