I was listening to the radio as I was waking up this morning, and I have this hazy recollection that there was a story about a lawsuit over cigarette advertising. Sure enough, turns out that the second and third biggesttobacco companies are suing over the new restrictions on advertising imposed by the new law giving the FDA regulatory powers over tobacco.
I’d been thinking about doing a post on the free speech clause of the First Amendment anyway, and this seems an appropriate topic to start that off.
As you are all well aware, there are limits to freedom of speech: the classic “you can’t yell ‘FIRE!’ in a crowded theater” idea is the obvious one, but there are lots of others. One of my favorites, though, isn’t properly a limitation on freedom of speech: the infamousHays Office (officially the Motion Picture Production Code) which made sure that Maureen Sullivan didn’t show her belly button in Tarzan movies, among many other crimes against nature. The Hays Office was only possible because the Supremes had initially ruled in 1915 that the First Amendment didn’t apply to movies (later reversed in a series of rulings in the 1950s and 60s), and because the film industry agreed voluntarily to submit to it.
But I digress. We talked a while back about the issue of election reform, and how to prevent money from having such a corrosive effect on public policy. But that runs smack into the first amendment.
So here’s the question for the day: how far should the government be able to infringe on freedom of speech? I have trouble with this one, because I see myself as a liberal in both the classical and the contemporary senses. I’m big into civil rights and avoiding overbearing government involvement in my life, so I’m not a big fan of censorship (slippery slopes and all that). On the other hand, I believe that the government has a responsibility to protect citizens–even from themselves in some cases.
In the tobacco case, in spite of my disgust for all things tobacco, I find myself leaning more toward supporting the tobacco companies. (I doubt they’ll want my support, though, because I feel that cigarettes in their current form ought to be banned. At the very least, the adulterations the tobacco companies have done to make their product more addicting should be banned. If the product is really so dangerous that it needs a warning label covering half the product, why the hell is the product on the market? But that’s another issue…) As far as the First Amendment issue is concerned, I think the restrictions on advertising are extreme. But I’m not set on that idea–if somebody has a different take, feel free to persuade me.
As for campaign finance reform, my feeling is there’s no way to avoid having money influence elections without damaging the first amendment more than I’m willing to accept. What do you all think?
And for the record, there’s a very big part of me that would be just fine with censorship of Joke Line, under the aegis of the “protecting the citizenry” idea.
How do you think they compare to the restrictions on prescription drug advertising?
There is no single limit to how far the 1st Amendment “goes.” The context matters — a lot. On campaign finance, I agree with the idea that individuals contributing money is an act of political speech that the government should be prevented from interfering with. I don’t read the problem as too many donors, or too much money. The problem is that the legislators should not NEED that kind of dough. They should not have to take a too-low salary, and they should not have to fund the expenses of campaigning out of their own pockets. Fix these two items — i.e., give representatives personal financial security and give them the funds they need to do basically do their jobs — and the power of donors will diminish.
A then you can go totally the other way. Once you’ve said something, what sort of license do you hold on it? (i.e. would taking the “newest and bestest” movie, taping it in a theater and placing it on a file sharing network count as free speech?)
I’ve got to admit this whold Joe Klein thing is going way over my head. As any person in the public should know, the mike is always on, even when it isn’t. When I write someting (or email), technically I hold a copyright but the constitutional reason for patents and copyright are to encourage dissemination and furtherance of tha art.
The invention of the printing press meant I could disseminate what you say faster. Email increased that by an unfantomable amount. And the cat is out of the bag. Add to that that almost any form of expression fits the definition of “speech” and the idea of privacy (not directly mentioned in the constitution althoug certainly implied) is a totally new world.
On campaign financing, I agree, Jim. I just don’t see that happening–there are too many groups that benefit from the gazillions of dollars flowing through campaigns. But it’s the only way we’ll really see anything change.
As for the cigarette thing, prescription drugs are advertised on television, in color, in print ads, on my toilet paper, ad infinitum, ad nauseum. The restrictions on tobacco ads proposed include only black and white ads (even in in-store ads, t-shirts–everything), continuing the ban on television ads, and the aforementioned ginormous warning label. Those are considerably greater than those currently placed on prescription drugs. While I agree that seems appropriate given the dangers involved in smoking, the way I see it, we have a tension between the idea of protecting the public and protecting freedom of speech. If you really want to protect the public from smoking, there’s a really simple answer that does absolutely no harm to free speech: ban the suckers.
pure fear that the FDA is gonna make them make cigarettes less addicting.
Uh, folks. We’re talking about an addictive product whose purpose is to make money killing people. It has some side effects (like weight loss and calming) that some people want.
Any tobacco ad that does not say “This product is intended to make you sick and kill you; all of its desirable effects can be achieved by much less dangerous products.” over and over, to the exclusion of other messages is false advertising. If false advertising were a tort for which one could collect appropriate damages I wouldn’t see a problem. But the tobacco industry wouldn’t want that either…
Regarding campaign finance: money is not speech, no matter what Alito, Scalia and Roberts may believe.
A couple of years ago, Ted Kennedy told Jon Stewart that money was the thing he had seen change the Senate the most during his tenure, and obviously not for the better. Kennedy had been serving in the Senate for two dozen years whenBuckley v. Valeo thundered out of the Supreme Court, and it’s been grinding our democracy into the dust ever since.
The reason free speech is so important is that we all have, within a reasonable range of ability, the facility of “speech” – that is, to vocalize, or write, or sing, or produce artwork that expresses our opinions and desires.
Needless to say, we do NOT all have the same ability to pay for said speech to be put into nationwide saturation advertising, or to funnel money into the pockets of our politicians as legalized bribery.
Those founding guys were very concerned about the rise of an oligarchy in this country, and this was, in large part, the impetus behind the First Amendment (and the Bill of Rights as a whole). Lots of folks could afford to pamphleteer and get their opinions out – or at least hang out at the coffee house and argue with their peers – and this was a natural way for the plebes to knock down the wealthy when they became too politically powerful.
Once you equate money and speech, though, that formula goes out the window. There is no way that the fevered scribbings of even a million progressive bloggers can match the influence of the relatively few, but obscenely wealthy, industries and companies buying their way into the halls of Congress.
Freedom of speech is all about the competition of ideas: may the best plan win. But the best plan in the world has no chance in the political arena if it’s shivering alone, outside in the cold, while cash greases the hinges and unlocks the doors of the Capitol, cozying right up to our “representatives.”
The only way we will ever restore balance to this democracy is to take money out of the system. There is no other way.
It would be an amazing thing to see should our republic ever return to the voices of the people.
I have a different view of campaign donations. With the current laws, if they were actually enforced, no one, including a corporation, can donate more than $2300, or whatever the current amount is, to a single campaign for any office by any candidate. When you read the campaign donations reports, and it shows that Acme Drugs donated a billion dollars to Senator Smooze, all that means is that employees of Acme Drugs donated a total of a billion dollars, not that Acme Drugs itself did so. So, I see campaign donations being a red herring here.
The bigger problem, by far, dwarfing campaign donations, is lobbyist activities. No member of Congress who will vote as a servant of a corporation needs ever to worry about a job for the rest of his/her life. That corporation, through its lobbyist, will provide jobs, perks, information, or whatever the Congressperson needs. That is absolutely bribery. But, it is not bribery that can be stopped until Congress itself bans that type of activity, and that just isn’t ever going to happen.
It is that lobbyist activity that keeps our nation the world’s biggest military hardware maker, the world’s biggest military threat, the world’s biggest bully, frankly. Even generals take part in this activity – by being supportive of Acme Bullets r Us, those generals can relax about their own retirement. They will never face a lack of money. That is more absolute bribery, and again it will never stop because only the Joint Chiefs can stop it, and they benefit too much from it to ever do that.
There you have the real reason our nation is now a nation of corporations, for corporations, and by corporations. Freedom of speech isn’t even a side show in this problem.
But, naturally, I do have equally non-moderate views about Freedom of Speech, too – the First Amendment means what it says. (Does that make me a seditionist?)
VirgoTex Thank you for bring this up. Missy thank you for your insights. I need both help from both of you to answer some questions on this topic.
When is a “press entity” NOT a “press entity”?
Talk radio gets a “press exemption” from the FEC. This means that a corporation giving money to a candidate in the form of services doesn’t have to list it as a donation. This waiver is granted because this is supposedly a special kind of donation. To get it you have to be ruled a “press entity” doing press like things.
My question is “What actions can these talk radio stations take that will rule them OUT as “press entities?” What things can they say that can rule them out?
In other words, “What can they say or do that will cause them to LOSE the “press exemption?”
Press exemptions are valuable.
People obviously think that advertising on broadcast media is powerful, they spend a lot of money on it. But what about the stuff that goes AROUND the advertising? I would argue that it is MORE valuable.
If the 20-50 minutes that is not specifically identified as advertising was listed as advertising what would the value be? Did you knowthis “content” –when part of a “press entity” acting as “the press”– means the candidate doesn’t have to pay for it?
What should we call content if it is not something coming from someone acting as a “press entity”?
I’ll call itan infomercial. It’s the same as Billy Mays for Oxy Clean.
This is about money. The Corporation is buying a “press exemption”. They aren’t acting like the press. They have no compulsion to act as “the press” after they have bought the radio or tv station. It is assumed, and grandfathered in, that the hosts will act as “the press” because in the past they acted as “the press”.
I’ve been reading FEC rules specifically the rulings about who is “the press” and who gets a “press exemption”. It is very broad and some people (bloggers) can say GREAT! We won’t have to be filling in forms. I know that some will worry that if we “go after” the talk radio hosts for getting the press exemption they will come after us! Guess what? They already did, and we won! The right LOVES to project on to the left the things that they actually do. They scream about George Soros funding us when they have dozens of private funders and I’ve never seen a Soros’ dime. They cry about people silencing their free speech when they actually shut people down at town halls.
An example:
Candidate X got the equivalent of 3.9 million in advertising in the form of a infomercials on radio station WREP. Two or three 10-20 minute interviews in the 30 days before a special election.
Candidate Y got nothing. (Just to make it interesting let’s say Candidate Y is from the SAME PARTY as candidate X. This removes the “You don’t like it because your side doesn’t get ‘equal time” argument.)
Corporation ABC gave this advertising, in the form of an infomercial, to candidate X. Neither Candidate X nor Corporation ABC will have to record this as a financial donation because Corporation ABC is regarded as a “Press entity”.
Should there be any guidelines ABC corporation should follow to keep this exemption? What are they? When should they NOT get the exemption?
What if they coordinate with Candidate X to bar Candidate Y from the conversation?
The right wing media is a very, very valuable political asset. We see this every day when they shape the debate on medical reform. Think about how much more the insurance companies would have to spend if the right-wing media wasn’t a “gimme”. Not only a gimme, but they work on the behalf of the insurance companies and the companies don’t even have to buy a single ad!
This press exception is valuable for many reasons, one of which is that they get all the benefits of being a press entity and they have none of the responsibilities. No need for corrections! No need for research! Athenae talks about the pressure on bloggers to do reporting. How about the Newspapers demand that talk radio earn their press exemption? What should they do? Force them to run corrections? Demand that instead of straw men from the left they have actual men on the left speak? I would say, “You can keep lying and using your straw men, but you have to admit you are not acting as a press entity and you have to forfeit the press exemption.”
Who has more power than Rush Limbaugh? Is he a press entity? Should he get the “press exemption?”
If you say no, then what rules him out? Please, tell me what would technically convince the FEC that he doesn’t deserve the press exemption?What would he have to do to get it? Would you be surprised to know that he does get the “press exemption”? That his stations ARE considered press entities?
I don’t think that I can fight this fight with Rush and Hannity. They are too big and too many people make millions off of them, all of whom will fight to PROVE they ARE the press and they deserve the press exemption. But I do think at the local level I can fight it and win. Just like I did with KSFO which was then taken national with Glenn Beck.
The concepts have to be worked out, the experts lined up and then the plan implemented. But the concepts need to be conveyed to LIBERALS. I need to disentangle the issue of “free speech” from this financial exemption for a “press entity” in the minds of liberals. I also need help defining the actions and behaviors of people and companies who shouldn’t get the press exemption.
We fight for bloggers to get the rights of journalists when they commit journalism and journalists love to look at the ways that bloggers don’t act like journalists, but these same journalists don’t look at the people who are MAKING MONEY off pretending to be journalists.
Journalists won’t fight this fight with talk radio or cable TV. Why?
1) The talk radio stations are part of the media. They are family, and you don’t go against the family. Rush and Sean keep the ABC Radio network in business. They generate revenue. You don’t attack the rain makers. Even when the rainmakers abuse the rights you fought for. Even when the rainmakers despise you, insult you and use your tools and wear your hat and pretend to BE you.
2) They are afraid they will get into an argument where the right will accuse them of trying to silence the talk radio hosts.
By granting right-wing talk radio the “press exemption” when they don’t act like the press they are getting something of value that they have not earned. This exemption should be taken away when they are not acting like the press. And when it is taken away the candidates will need to record the size of the donation by listing the infomercials they get from talk radio.
First Amendment rights should not apply to corporations other than the press. Period.