The First Amendment Explained: Free Speech
In part 1 of this series, I focused on the establishment and free exercise clauses of the First Amendment. This week's topic deals with the rest of the amendment, explaining: What is the meaning of free speech? Before I get into my thoughts on the matter, let's take another look at the First Amendment in all its glory:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.The Translation
The first phrase of the First Amendment, "Congress shall make no law" is key when discussing free speech in America. As Eric pointed out in response to part 1 of this series, when the First Amendment was written, the original intent of its authors was to restrict only the United States Congress from passing laws which restricted free speech, free exercise of religion, or establishing religion. The Anti-Federalists, who supported strong state government and a weak federal government (as opposed to the Federalists who supported a strong federal government), did not want the federal government to make restrictions on the rights of each state's citizens. This meant that, although the U.S. Congress could not pass laws which contradicted the U.S. Constitution, state governments could; when the Fourteenth Amendment was added to the constitution, this all changed (See my exchange with Eric on part 1 of this series for additional explanations). The Section 1 of the Fourteenth Amendment, which is relevant to this topic, reads as follows (italicized words are my emphasis):
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
With this change, when reading the First Amendment, replace "congress" with "No government body in the jurisdiction of the United States" and you will have the current definition of the amendment. This is my interpretation with the Fourteenth Amendment applied:
[No government body in the jurisdiction of the United States] shall make [any] law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.
Free Speech and the Free Market
In the past several years there have been many instances when someone said something controversial in the media and was punished in some way. A few instances come to mind: Whoopi Goldberg making obscene remarks about President Bush resulting in Slim Fast terminating her contract, Rush Limbaugh making comments about Donavan McNabb, which some regarded as racist, resulting in his resignation from ESPN, and the backlash against the Dixie Chicks after lead singer Natalie Manes said that she was ashamed that President Bush was from her home state of Texas.
What do all of these examples have in common? The free market censored them; not the government. The First Amendment does not protect against free market censorship, nor should it. The First Amendment does not guarantee that one has a right to an advertising contract, television contract, or radio air play. In all of these examples, others stood up in opposition to these controversial comments and the private companies which provided each a platform decided to take that platform away.
I'll use my blog for another example. Though I have a right to write about whatever I wish, but Blogger.com does not have an obligation to provide this forum. As a matter of fact, it Blogger.com finds my comments too objectionable, they have every right to shut my blog down. In addition, I also signed a contract; here is a sample of my contract:
Member agrees not to transmit through the Service any unlawful, harassing, libelous, abusive, threatening, or harmful material of any kind or nature. Member further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation"Pyra may, at its sole discretion, immediately terminate Service should Member's conduct fail to conform with these terms and conditions of the BTS.In other words, if blogger.com does not want me to continue using its services, I have no choice but to go elsewhere.
The First Amendment and the FCC
I know of no more blatant violation of the First Amendment than the creation of the FCC. Even if the Fourteenth Amendment did not exist, the FCC, being a department created by congress, by its extension is the "congress" making law to abridge free speech. The only legitimate power the FCC has that I know of is to ensure that the radio and television waves do not interfere with other frequencies (this is the part they do badly).
The FCC has anointed itself as the body which will determine what is "indecent" or "obscene" giving only vague guidelines to the would-be offenders. There is also an inconsistency how the violations are enforced. Last year Howard Stern wrote a letter to the FCC to ask why Oprah was not fined for some of the content on her program while the FCC was consistently fining Stern for the same type of content. I guess it comes down to "Well she's Oprah, everyone loves her, and therefore it can't be indecent."
As if that isn't insane enough, on a local radio program out of Phoenix, Arizona, a Playboy model was being interviewed by the show's hosts. She was talking about her show on Playboy TV but she could not say the name of the cable provider (Cox) because coming from her "sexy voice" it would sound too dirty!
We need to make a decision in this country once and for all: Do we believe in the First Amendment or not? What you consider obscene, I might not. If you don't like the content of some program, don't write your congressman, just don't watch it! Why is this so hard to understand? The free market works. If enough people decided they did not want to listen to Howard Stern, he would lose advertisers and be off the air. That's what happened to Dr. Laura's TV show; she couldn't find advertisers. The free market spoke.
The whole purpose of the First Amendment is to protect unpopular or controversial speech against government censorship. Today the target is Howard Stern, tomorrow it could be Rush Limbaugh or Sean Hannity. Keep that in mind the next time you want the government to take someone off the air!