First Amendment Follies

In 1993, Nat Hentoff wrote a book titled “Free Speech for Me but Not for Thee: How the American Right and Left Relentlessly Censor Each Other.” After amply documenting this thesis, Hentoff concluded that the human animal’s urge to censor was at least as strong, and perhaps stronger, than its sex drive.

 

Whatever the comparative strengths of sexual desire and the impulse to control what our neighbors are reading, watching or downloading, news sources offer daily reminders of the essential accuracy of his observations.

 

Overseas, the Muslim riots over publication of the Danish cartoons had barely subsided when an Austrian court sentenced historian David Irving to three years in prison. His crime?  Denying that the holocaust had occurred. Here in America, Homeland Security officers visited the Little Falls library, in Bethesda, Maryland, announced that viewing “Internet pornography” was forbidden, challenged a patron’s choice of viewing material, and asked him to “step outside.” (The County Executive later apologized, saying that the officers had believed they were enforcing the county’s sexual harassment policy, and calling the incident “unfortunate.”)

 

Partisans Left and Right actually agree on censorship—they are for it. They only argue about what should be censored.  As libertarians are fond of noting, the political spectrum is not a straight line from Left to Right; it’s a circle, and where the ends touch, authoritarians meet. The real battle is between the wing-nuts of all persuasions and those of us who agree with America’s Founders, who believed that giving government the power to decide what we say would be far more dangerous than any idea we might express.

 

In the system fashioned by those Founders, people can’t be thrown in jail for their opinions—however odious or wrong. At least, not yet. What worries those who care about civil liberties is the number of folks who don’t seem to understand what freedom of speech protects, what it doesn’t, and why.  

 

Freedom of speech does protect the individual expression of ideas—including, as Holmes famously said, “the idea we hate”—against government action. As I used to warn my children, however, it doesn’t protect you from your mother, or from your private-sector boss. It also doesn’t prevent government from punishing illegal behaviors. You can picket a Hollywood movie or boycott Wal-Mart, but you can’t rough up the movie’s director or burn down the local Wal-Mart store—even if your purpose is to “send a message.” You can burn your own flag in protest, but not your neighbor’s.

 

Freedom of speech allows you to speak your mind when testifying at the legislature, thanks to the right to petition the government for redress of grievances. It doesn’t allow people who’ve been selected by government officials to deliver official government prayer to pray in a sectarian, non-inclusive manner. That’s government speech, and the Establishment Clause forbids government from preferring some religions over others.

 

We just need to figure out how to convince all the autocrats that these limits on government are as good as sex.

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Good Night and Good Luck

I hate to get cranky, but I think a lot of us are forgetting what America is all about.

Repeat after me: our constitution wasn’t designed for cowards. The Founders didn’t protect our right to say what we think because they believed we would all mouth non-offensive proprieties. They didn’t insist on our right to pray (or not) as we choose because they were confident we would all agree about the nature of Ultimate Truth. And they didn’t insist that government show a darn good reason to search or detain us because they were sure we wouldn’t ever have anything to hide.

They protected liberty because they valued it for its own sake—not because it was safe.

In fact, they were well aware that liberty isn’t safe. Freedom is dangerous, and those who drafted the Bill of Rights knew that. They just believed that a government with the power to decide what ideas may be expressed, or what prayers must be said (and to whose gods) is much more dangerous. They were willing to risk political, scientific and religious debate—just as they were willing to take the risks of a market economy. No risk, no reward.

We’ve come a long way, baby—to weenie land, apparently. Recent headlines paint a depressing picture of a society increasingly afraid to entertain different ideas or consider evidence inconsistent with our preferred realities.

In New Mexico, a nurse with the Veterans Administration is being investigated for sedition—sedition!—because she wrote a letter to the editor criticizing George W. Bush and advocating withdrawal from Iraq. The letter was signed in her private capacity as a citizen, written on her own time, on her own stationery. She has been a VA clinical nurse specialist for sixteen years; she is now refusing to give interviews and is reportedly terrified that she will lose her job.

In Washington, a thirty-six-year veteran of the Congressional Research Agency who is widely considered the most eminent living scholar of Separation of Powers has been told to “apologize” and threatened with loss of his position in the wake of a research report disputing Presidential authority to ignore Congress and engage in unchecked surveillance of Americans’ communications. This is an individual who has served with distinction under Republican and Democratic Administrations alike.

At NASA, in one widely reported incident, an expert on global warming was ordered to modify a scientific paper posted to the agency’s website. In another, five researchers from CalTech who published a report on “Potential Environmental Impact of a Hydrogen Economy” abruptly had a planned NASA conference cancelled, reportedly by the White House Office of Science and Technology Policy, and further funding for this research has been cut off.

Perhaps—before we make too many self-righteous comparisons between our own devotion to “liberty” and the Islamists violent reaction to Danish cartoons—we should take a good hard look in the mirror. That isn’t James Madison looking back. In fact, it bears a striking resemblance to Joe McCarthy.

 

 

 

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Hobgoblins of Little Minds

Emerson once declared a “foolish consistency” to be “the hobgoblin of little minds.” Depending upon your definition of “foolish,” I guess that means our legislature is populated by mental giants, undeterred by the inconsistencies that baffle us lesser folks.

On the one hand, members of the General Assembly are mightily exercised over supposed abuses of the power of eminent domain. The trigger for this sudden solicitude was a recent Supreme Court ruling, Kelo v. New London, that left the definition of “public use” up to state legislatures. While reactions to that ruling arguably misread it, the ensuing debate has revolved around the issue of protecting property rights against inappropriate exercises of government power. Reasonable people will differ over what is appropriate, but most of us would agree that protecting private property from government overreaching is important.

On the other hand, the legislature is poised to effect its own “taking,” by issuing regulations that will effectively require abortion clinics to close. They dictate such minutiae as hallway width and room size. Compliance would require clinics to rebuild or relocate, an expense most could not afford. Ignore for the moment another “foolish inconsistency”—i.e., why these “health” regulations, supposedly based on legislative concern for patient safety, are not being applied to other medical facilities, like hospitals or urgent care offices or surgical outpatient clinics. The immediate question that arises is: how can the same lawmakers who have been delivering pious affirmations of private property rights and the sanctity of free enterprise turn around and pass a measure that will put these particular enterprises out of business?
 
If one were cynical, one might conclude that neither position is principled, and that what we have here is a classic case of pandering to different constituencies, with little regard for the merits or long-term effects of either policy. But I really don’t think that is the explanation. I really think that our lawmakers are oblivious to the inconsistencies in these two positions.

When I was active in the Republican Party, it was the party of limited government. Republicans wanted to keep the government out of your boardroom, your bedroom, and your conscience. Pundits often opine that contemporary Republicans still want government to stay out of the boardroom, but are perfectly happy to regulate your bedroom and your conscience. I don’t think that’s true, either. Today’s GOP is also perfectly willing to infringe your property rights and overrule your business decisions in the interests of morality. Their morality, not yours.

If your moral code says businesses shouldn’t pollute, that is insufficient reason to regulate emissions. If your moral code dictates paying workers a certain minimum wage, that is unwarranted interference with the market. If your moral code says everyone should have access to health care, that’s socialism. But if their moral code says a legal medical procedure is immoral, it is entirely proper to overrule the professional judgment of doctors and nurses, and regulate that business out of existence.

I guess I’m just hung up on “foolish inconsistency.”

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The Hobgoblins of Little Minds

Emerson once declared a “foolish consistency” to be “the hobgoblin of little minds.” Depending upon your definition of “foolish,” I guess that means our legislature is populated by mental giants, undeterred by the inconsistencies that baffle us lesser folks.

 

One the one hand, members of the General Assembly are mightily exercised over supposed abuses of the power of eminent domain. The trigger for this sudden solicitude was a recent Supreme Court ruling, Kelo v. New London, that left the definition of “public use” up to state legislatures. While reactions to that ruling arguably misread it, the ensuing debate has revolved around the issue of protecting property rights against inappropriate exercises of government power. Reasonable people will differ over what is appropriate, but most of us would agree that protecting private property from government overreaching is important.   

 

On the other hand, the legislature is poised to effect its own “taking,” by issuing regulations that will effectively require abortion clinics to close. They dictate such minutiae as hallway width and room size. Compliance would require clinics to rebuild or relocate, an expense most could not afford. Ignore for the moment another “foolish inconsistency”—i.e., why these “health” regulations, supposedly based on legislative concern for patient safety, are not being applied to other medical facilities, like hospitals or urgent care offices or surgical outpatient clinics. The immediate question that arises is: how can the same lawmakers who have been delivering pious affirmations of private property rights and the sanctity of free enterprise turn around and pass a measure that will put these particular enterprises out of business?

 

If one were cynical, one might conclude that neither position is principled, and that what we have here is a classic case of pandering to different constituencies, with little regard for the merits or long-term effects of either policy. But I really don’t think that is the explanation. I really think that our lawmakers are oblivious to the inconsistencies in these two positions.

 

When I was active in the Republican Party, it was the party of limited government. Republicans wanted to keep the government out of your boardroom, your bedroom, and your conscience. Pundits often opine that contemporary Republicans still want government to stay out of the boardroom, but are perfectly happy to regulate your bedroom and your conscience. I don’t think that’s true, either. Today’s GOP is also perfectly willing to infringe your property rights and overrule your business decisions in the interests of morality. Their morality, not yours.

 

If your moral code says businesses shouldn’t pollute, that is insufficient reason to regulate emissions. If your moral code dictates paying workers a certain minimum wage, that is unwarranted interference with the market. If your moral code says everyone should have access to health care, that’s socialism. But if their moral code says a legal medical procedure is immoral, it is entirely proper to overrule the professional judgment of doctors and nurses, and regulate that business out of existence.

 

I guess I’m just hung up on “foolish inconsistency.”     

 

 

A First Step

If you criticize someone when you think they are wrong, you should be fair enough to applaud them when they do something right. Speaker Brian Bosma has recently done something right, by strongly endorsing HB 1009, Rep. Jerry Torr’s bill to replace gerrymandering with a nonpartisan redistricting process.

 

The way lines are drawn now is for the majority party to draw as many “safe” seats as possible—more for itself, of course, but also for the minority party, because in order to retain control, the winners need to cram as many of the losers into as few districts as possible, and those districts are also safe. Neighborhoods, cities, towns, townships—even precincts—are evaluated solely on the basis of voting history, and then broken up to meet the political needs of mapmakers. Numbers drive the process—not compactness of districts, not communities of interest, and certainly not democratic competitiveness. And computers have made this process very precise. Most state legislative districts in Indiana are safe for one party or the other. In this system, the interests of real communities are secondary.

 

Safe districts facilitate special-interest legislation: if you are guaranteed victory every election, it is less important to listen to constituents; easy to become lazy and arrogant. Party preoccupation with gerrymandering consumes an enormous amount of money and energy that could be better directed, while safe seats allow politicians to scuttle popular measures without fear of retribution.

Lack of competitiveness also makes it impossible to trace campaign donations, since unopposed candidates send their “extra” money to those running in competitive districts. (The current scandals surrounding Tom Delay are a case in point.) The most consequential results, however, are voter apathy (why play when the deck’s been stacked?) and the extremism—left and right—that is produced when elections are won or lost in primaries dominated by both parties’ most fervently ideological voters.

 

HB 1009 is not perfect. It raises legitimate state constitutional issues, and sets arguably incompatible goals. For example, competitive districts are desirable, but it is also important to respect natural community boundaries; if these two goals clash, which is most important? I would argue that an overwhelmingly Republican or Democratic neighborhood or city is entitled to have its majority viewpoint reflected, that the point of redistricting reform should be to move away from districts drawn to achieve political goals, worthy or not. The Torr bill also makes the recommendations of the nonpartisan panel advisory, rather than binding. This was probably an effort to avoid state constitutional issues, but it’s an invitation to partisan wrangling and wheeler-dealing. 

   

Nevertheless, while it will be very important to do this carefully and avoid making the current mess worse, HB 1009 is a welcome step in the right direction.

 

For Hoosiers interested in more detail, including information about what other states are doing, and nonpartisan analyses of HB 1009, a new Indiana nonprofit, the American Values Alliance, has valuable resources on its website (www.valuesalliance.org). This is an issue all citizens should care about.

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