Muzzled (29 page)

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.”

The 8–1 Supreme Court ruling fit with a prior ruling that
allowed movies showing cruel, violent acts against animals. Chief Justice John Roberts wrote in the Westboro case: “Debate on public issues should be robust, uninhibited and wide-open.” He said such speech regarding debate of “public issues occupies the highest rung of the hierarchy of First Amendment values.” Roberts wrote anecdotally that “speech is powerful.… It can stir people to action, move them to tears of both joy and sorrow and—as it did here [in the Westboro case]—inflict great pain.”

Most Americans would not consider disruption of a dead serviceman’s sacred last rites to be socially acceptable behavior. But they embrace the wide boundary lines of acceptable speech.

The key here is that we do not censor others’ speech. The best instinct of American society is that we encourage people to express their points of view, even if they in turn unleash opposing points of view. Nonetheless, we do judge it.

While the government does not legislate politically correct speech, in many cases the people who are the subject of the speech play a key role in deciding whether they consider a word or phrase offensive or “politically incorrect.” Native Americans are asked if they are offended by sports teams with names like the “Fighting Sioux” and the “Redskins.” After the 2011 assassination attempt on the life of Congresswoman Gabrielle Giffords in Tucson, Arizona, a shocked nation condemned metaphors about putting politicians in the “crosshairs” and “targeting” them for defeat. Yes, speech codes that arise from topical events tend to evaporate over time. But the point is that this self-policing mechanism is triggered in us in the first place and embraced by large swaths of America. It
highlights a paradox of free speech in our country. It is a right so fundamental and so sacred to our national character that we as a society tend to censor
ourselves
in order to maintain a commitment to its principles.

What goes unsaid in this compact is that preserving the liberty to say what is on your mind is never more important than in political debate. Americans assume they can disagree with the highest elected officials in the crowd without some Gestapo-like police force appearing at the door to silence them. The First Amendment guarantees that Congress will make no law that allows such a travesty.

Where we do place limits on free speech is with speech that threatens physical assault or intimidation. At that point both social censure and legal prohibition agree that the offending individual or group has crossed a bright line into what is impermissible. But as we’ve seen, there is a large buffer zone before the bright line, policed and patrolled by special-interest groups, political groups, religious groups, and slanted niche media. They constantly push social and political debates up to (and sometimes across) the bright line of impermissible speech when they don’t like what they are hearing. Such people pretend to honor open dialogue. But what they really honor is their own particular brand of dialogue. Their purpose is to stifle honest intellectual and emotional interaction and preclude full debate. This is particularly offensive in the media, where news analysis, commentary, and opinion play a large role in helping busy people make sense of the gushing hydrant of news. Every minute of every day there are events, both real and staged, to be made sense of, not to mention speeches, announcements, and personalities competing for our attention.
The deluge can confound anyone watching the news. What does it all mean? Is it just noise to fill a twenty-four-hour programming vacuum?

Viewers have a hunger for background, context, and historical reference to make sense of the cascading reports on our fast-paced world. And if there was ever in fact objective journalism in reporting it, it is a vanishing idea. My friend and political jousting partner Brit Hume, who worked at ABC for twenty years before joining Fox, has said the media can never be objective—but reporters can at least be sure to be fair. Hume makes the point that Fox News can appeal to conservative viewers simply by featuring stories that challenge (liberal) media preconceptions and fall outside the framework of other news organizations. He calls it as easy as “picking up change off the street.” By recognizing and admitting our own biases, reporters can allow the audience to consider the source as they consume news and information. When news organizations pretend to be without bias, they fall victim to arrogance and elitist tendencies in the way they select stories, tell stories, and choose the people they feature as authoritative voices. They superimpose a single framework of what they consider to be acceptable and right thinking about news. In a sense, these news organizations act as surrogate parents, claiming to know what is best for us. They take away our desire to think for ourselves. They unconsciously subvert free speech by eliminating opinions, ideas, and stories they disagree with. They deny the truth about the cultural and political frame of their news presentation and commentary. But if you pay close attention, you realize that any idea or opinion at variance with their viewpoint is, subtly or overtly, portrayed as politically incorrect.

Today one major unsettled area of dispute over the First Amendment has to do with political fund-raising and political advertising. Do political action committees of corporations, unions, and nonprofit groups have the same First Amendment rights as individuals? In America’s reverence for free speech, these questions currently polarize the Supreme Court justices and pit Democrats against Republicans.

In January 2010 the Supreme Court ruled in
Citizens United v. Federal Elections Commission
that Congress had no right to ban political advertising on TV and radio within sixty days of a general election and thirty days of a primary. Justice Anthony Kennedy wrote in the majority opinion that “speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” He reasoned that the First Amendment’s truest meaning is found in the “right of citizens to inquire, to hear, to speak and to use information to reach consensus” as a “precondition to enlightened self-government.” Along the lines of previous rulings that gave the greatest protection to speech employed in the course of public-policy debates, the majority of justices in the
Citizens United
case viewed campaign contributions as the equivalent of speech. The decision said the First Amendment has “its fullest and most urgent application to speech uttered during a campaign for public office.” Justice Kennedy later added that the government may not discriminate against any person or class of speakers by setting limits on their free-speech rights.

Justice John Paul Stevens offered a strong dissent. He expressed the fear of his liberal colleagues that corporate money unleashed by the ruling would flood the political system. Stevens wrote that “the Court’s opinion is thus a rejection
of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.” Later in his dissent Justice Stevens explained that the majority’s ruling ignored the context of free-speech applications. Corporations, he argued, cannot run for office and cannot vote, and because “they may be managed and controlled by non-residents [foreigners], their interests may conflict in fundamental respects with the interests of eligible voters.” Justice Antonin Scalia presented the contrary view of corporations in his concurrence with the majority ruling. He wrote that the First Amendment is “written in terms of ‘speech,’ not speakers.” He said any fair reading of the First Amendment would allow the groups of people who make up political organizations, such as the Republican and the Democratic parties, to issue statements without fear of censorship although they are not individuals. “The association of individuals in a business corporation,” he contended, “is no different—or at least it cannot be denied the right to speak on the simplistic ground that it is not ‘an individual American.’ ”

The ruling set off a huge, immediate political row. The Obama White House issued a statement the day of the ruling calling it a win for “big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday [individual] Americans.” The
New York Times
reported that Democrats feared that the ruling favored Republicans because Republicans “are the traditional allies of big corporations [and] have more money to spend than unions.”

The reaction to the ruling was so strong that it renewed questions about whether the conservative majority of the Court was essentially an arm of the Republican Party. Similar charges had been leveled against the Court in 2000, after it issued a ruling on counting ballots in Florida that put Republican George W. Bush in the White House. A few days after the
Citizens United
ruling, the anger over the case was on public display at President Obama’s State of the Union speech.

“With all due deference to separation of powers,” the president said to Congress and his national television audience, “last week the Supreme Court reversed a century of law that I believe will open the floodgates of special interests—including foreign corporations—to spend without limits in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities.” Television cameras focused on the justices of the conservative majority that had passed the decision; Associate Justice Samuel Alito was seen shaking his head at President Obama’s speech, mouthing the words “not true” in response.

According to polling data, the American public was of mixed mind about the ruling. Most felt that campaign donations are a protected form of free speech under the First Amendment and agreed that donations from corporations and unions deserved to be treated just as donations from individuals. But several polls found the public disagreed with the Supreme Court’s ruling. A report from the Gallup polling organization said that one of its polls had found that “the majority [of Americans polled agree] it is more important to limit campaign donations than to protect this free-speech right.”

That was an incredible finding, one of the few where Americans
are not in lockstep with the principle of free speech. When confronted with hate speech, obscenity, and even cross burnings, the public understands that First Amendment protections are paramount in a democracy. But they are concerned over the imbalance that results when money amplifies the speech of certain people or organizations. The people with money are the rich. And for most of American history there was no effective regulation of campaign contributions. Congress created the Federal Election Commission to track the flow of money into politics only after the Watergate scandal. In the 1970s the Supreme Court struck down limits on how much a candidate can spend on a campaign as a violation of the candidate’s free-speech rights. Several congressional efforts at tightening the amount of money going to campaigns and regulating how candidates spend money also faced defeat in subsequent decades. But by 2002 a new set of rules for political contributions had been enacted—the McCain-Feingold bill, which limited money raised by politicians to $2,000 per individual donor and halted all political advertising by outside groups within sixty days of a general election.

The
Citizens United
ruling threw out the limits imposed by McCain-Feingold. The impact was immediate. The nonpartisan Sunlight Foundation’s review of spending in the 2010 midterm election found $126 million in “undisclosed money,” more than a quarter of all money that groups outside the candidates’ campaigns had spent to influence the outcome of political races. An additional $60 million was raised by “outside” groups that did disclose which corporations and individuals gave them the money. And the Sunlight Foundation found that the new flood of money did in fact favor Republicans. “By a
nearly six to one margin,” Sunlight reported, “Republicans outspent the Democrats among groups that failed to disclose the source of their money [$59 million to $10 million].”

With the
Citizens United
ruling as the governing law, political insiders are now predicting that the major-party candidates for president in 2012 will be the first politicians ever to spend more than a billion dollars to run for office. That is a gargantuan leap from the $33 million that President Carter raised in his winning race for the White House in 1976. And it is a far cry from President Clinton’s reelection fund of $108 million. Or President Bush’s $356 million in 2004. Running for president, the U.S. Senate, or even the city council is now becoming a function of fund-raising prowess, and that is a potential barrier to people without access to big donations.

That is why despite faithful adherence to the principle of free speech, Americans worry about the power of money to distort the political process. But here’s the thing. Even if there are future changes in campaign finance law that supersede the
Citizens United
ruling, there will always be corporate and union money in politics. Yet individual American voters who select their candidate based on feeling, experience, and knowledge of the candidates will always make the choice in the voting booth. The responsibility lies with us—the American people. And the nature of our political decisions will be largely shaped by the open nature of American political discourse.