When politicians and good-government types talk about campaign-finance reform, what they often mean is censorship. Of course, they’ll say they oppose censorship because censorship is bad, and what they propose is good. But it’s censorship nonetheless.
As a purely symbolic protest, Media Nation today presents the trailer for “Hillary: The Movie,” a right-wing, hateful documentary about Hillary Clinton that was making the rounds last year.
As Adam Liptak reports in the New York Times, the film was banned from television — banned! — because it ran afoul of the campaign-finance laws promulgated a few years ago by Sen. John McCain, Sen. Russell Feingold and former congressmen Marty Meehan and Chris Shays.
The Reports Committee for Freedom of the Press recently filed an amicus brief urging that the U.S. Supreme Court overturn the ban, instituted by the Federal Elections Commission and upheld by a lower court.
The First Amendment says in part, “Congress shall make no law … abridging the freedom of speech, or of the press.” What part of “no law” don’t these people understand?
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zadig
Dan, while I’m no fan of banning things from television, I’d make the following points for discussion:1) The airways are a public trust (unlike cable or satellite) and are therefore subject to more regulation than other methods of media delivery. That’s why you can’t swear on TV but you can in publications. That’s why the original Fairness Doctrine was constitutional and not a first amendment violation, no matter what paranoid right-wingers say today. And that’s why you can pass campaign finance laws that ban one-sided productions during an election season.2) It seems to me that we need *some* solution to the obscene amounts of spending each election season, and the fact that only the ridiculously wealthy can even run for higher office, much less win. In the UK they have spending limits that would no doubt seem draconian here, but on the other hand, their elections aren’t the same kind of circus as ours. What would you recommend?
LFNeilson
One place we’ve been derailed is in the concept that money equals free speech. We have some people who will throw gobs of cash into a project such as the Hillary movie, knowing that anyone wanting to present an opposing view will probably not have enough money to counter with any strength.So, because they have more money than I, they have more freedom of speech?The First Amendment was written in an era when there was no broadcast media of any kind. If there is to be no law restricting freedom of speech, then why can’t I broadcast a television program? Well, government has issued licenses because there is a limited number of frequencies. Isn’t that a violation of the First Amendment?One thing that really bothers me is the trashing of public figures with anything you can throw. Truth doesn’t matter, and the gutter publishers and broadcasters have nothing to worry about, because public figures are libel-proof. We certainly need to be able to criticize government officials, and there is a legitimate interest in some examination of their personal lives, but it drags down our political process when people stoop to such low levels of communication.zzzzzzzz
Ani
Self-regulation is a wonderful thing. And we do need each person to self-regulate. Without it, I think we end up with a mess of problems covered with sometimes equally problematic “solutions.” Horace (Odes III.24, 35-36) makes the point better: “What good are statutes hollow without mores?” (“[Q]uid leges sine moribus / vanae proficiunt?”)
Peter Porcupine
DK – re the argument of Zadig that the ‘airways are a public trust’.First – was it banned from the airwaves as too incendiary, and then from the cable as they are private entities, creating a crack through which it can fall?Second – isn’t there a ‘trigger’ regarding FCC regulation? My memory is that once 80% of the nation has cable available, and 80% of those to whom it IS available subscribe, then cable becomes a de facto ‘broadcast’, subject to FCC guidelines. I am willing to bet that nobody – FCC or cable industry – is looking too hard to see if that threshhold has been met…
Don, American
“Hateful” is in the eye of the beholder. What is truly hateful is censorship.
Fred Fury
Peter… I THINK that the 80-80 threshold you’re thinking of is actually a 70-70 threshold, which fmr FCC Chair Martin asserted gave FCC certain regulatory authority, although I don’t believe Martin asserted authority over content of cable if the 70-70 threshold were met. Also, many folks attacked Martins way of measuring whether 70-70 was reached.
Aaron Read
Fred & Peter, this actually came up once under Martin’s tenure at the FCC. Martin asserted that Comcast had achieved the 70-70 (cable systems with at least 36 channels that’re available to 70% of US households and whether 70% of households with such access are actual subscribers – it’s a provision of the 1992 Cable Act) and that made them subject to FCC regulation…as the law says “promulgate any additional rules necessary to provide diversity of information sources.”Martin was trying to use this as a way of more directly forcing a la carte channel choices for cable customers; a la carte was Martin’s white whale for his entire tenure as FCC commissioner.Fortunately or unfortunately, depending on your priorities, Martin used a pretty weak standard to measure that 70-70, and he was roundly smacked for it, including by other FCC commissioners. While I support a la carte in theory, I think we’re deluding ourselves if we think it’ll result in anything but substantially higher prices for consumers.
Aaron Read
The First Amendment says in part, “Congress shall make no law … abridging the freedom of speech, or of the press.” What part of “no law” don’t these people understand?Well, to be rather snarky about about it: What part of “free speech isn’t free” aren’t YOU understanding, Dan?The more money you have, the more you can take away the free speech of those who don’t have money. If Congress fails to act, couldn’t that be construed as abridging free speech by default? Especially since Congress has passed so many other laws that have, mostly indirectly, contributed to the situation that takes away free speech rights from those without the cash to get around it?
Dan Kennedy
Aaron: It’s issues like this that separate those who are for free speech and those who are for free speech but. Not buts with me.
Aaron Read
It’s not like I don’t understand the sentiment, and given my job I guess I’m on the same side you are.But…there’s that “but”…this feels like we’re the DEA trying to stop the flow of drugs in the US. We set the rules, and the other side knows that and freely works around them. It’s noble but very Quixotic.As long as money buys influence…and it most definitely does…then not having SOME control over giving money to politicians is a guarantee that we DON’T have free speech in the US.Frankly, I never understood how in the hell anyone could consider “giving money” to be a form of “free speech”. TALKING TO SOMEONE is “free speech”. Buying them off is BRIBERY. If we’re dealing in absolutes here, why not accept that axiom too?Of course, this sort-of touches on my rather cynical view that most despotic countries lack style and grace, because the US has elegantly reduced its populace to the same lack of any real power without all that messy crackdown on protesters and secret police and whatnot. Who needs the thought police when you’ve got Fox News?
APM
There are no absolute rights. The Supreme Court has long established that “Congress shall pass no law” does not really mean NO law. You can’t incite violence. Libel and slander and aren’t allowed. As a journalism “professor” I would have hoped you would have a greater understanding of both the First Amendment AND BCRA. BCRA is a protector of true, independent speech. BCRA, however, does not protect coordinated speech whose function is to circumvent both the letter and spirit of campaign finance laws. Joe Blow can buy ad time and say whatever he or she would like so long as such speech is truly independent of the campaign.
Dan Kennedy
APM: Ooh, I like the way you use quotation marks. I understand BCRA quite well. It is anti-First Amendment to its core.
Peter Porcupine
DK – here’s another set of quotation marks – “I disagree with what you say, but I defend to the death your right to say it.”This doesn’t protect only liberal speech. To paraphrase Aaron, who needs for-profit Fox News as thought police when we have tax-payer subsidized NPR?
APM
Dan please explain how BCRA is anti-free speech? Also, I always enjoy how you dodge points that you cannot adequately explain. I repeat: there is no absolute right to anything. BCRA has withstood constitutional review. You make sweeping statements without any specifics.
Dan Kennedy
APM: Where did you ever get the ridiculous idea that “libel and slander aren’t allowed”? Good grief.You need to spend some time with Near v. Minnesota, in which the Supreme Court made it clear that there were only three reasons for censoring speech: (1) serious matters of national security; (2) obscenity; (3) incitement to violence. Nothing else may be censored, not even libel, though of course it may be punished after publication. That’s the whole point of Near, since it involved a libelous publication called The Saturday Press.Oh, and now there’s a fourth reason: political speech that offends the tender sensibilities of the political class.Damned if I know why the Supreme Court upheld the BCRA. First Amendment lawyers like Floyd Abrams were convinced it was unconstitutional. Then again, I don’t know why the Supreme Court decided that votes shouldn’t be counted in Florida in 2000, either.In 2002 I gave Marty Meehan a Boston Phoenix Muzzle Award for his role in passing this censorious legislation. I used a quote by Stuart Taylor that puts it very well. He called the provision “a frontal attack on the rights of ordinary citizens to band together to express their views on legislative and political issues,” adding: “A greater affront to the First Amendment’s core purpose of protecting uninhibited, robust and wide-open criticism of government and government officials could scarcely be imagined.”Taylor was right. The current controversy over “Hillary: The Movie” shows why.
Ani
Dan, are you talking about “previous restraint” or something broader?
Dan Kennedy
Ani: Prior restraint — censorship.