Lies the government told you (13 page)

Later, in
Whitney v. California
(1927), the Supreme Court upheld the constitutionality of California’s Criminal Syndicalism Act, which made it a crime knowingly to become a member of any organization that advocates “the commission of crime, sabotage, or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.”
¹¹
The law was enacted during the Red Scare of the 1920s, when fear of Communism was widespread. The Court held that the Act was neither an unreasonable nor an arbitrary exercise of California’s police power. In a concurring opinion, however, Justice Louis Dembitz Brandeis echoed Holmes’s “imminence-of-danger” idea, and stated his belief that free speech promotes active self-government, helping us to fulfill our role as citizens. Repression of ideas, according to Brandeis, was a sign of weakness or panic.

What makes the outcome in this case even more frightening is that Charlotte Anita Whitney, a political activist, did not come close to violating the California statute.
¹²
At a convention in Oakland during which Whitney hoped to organize a California branch of the Communist Labor Party, Whitney supported a resolution calling for the achievement of the party’s goals through
political
means.
¹³
Not once did Mrs. Whitney advocate violent action. She actually
voted against
a radical, militant platform that the Party ultimately adopted. Since the platform advocated violent action, Whitney was charged with belonging to a group that advocated criminal syndicalism, even though Whitney herself never advocated violence.

Saving the First Amendment . . . for Real

In 1969, in the case of
Brandenburg v. Ohio
, the Supreme Court of the United States finally came full circle, and unanimously overturned what was left of
Schenck
and
Whitney
.
¹⁴
Clarence Brandenburg, an Ohio Ku Klux Klan leader, was convicted in an Ohio state court under the Ohio Criminal Syndicalism statute of “advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and of “voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate doctrines of criminal syndicalism.”

Brandenburg conducted a Klan rally in Hamilton County, Ohio, in which members wore hoods, burned a cross, and made several vicious speeches expressing their hatred for nonwhites. As noted in “Lie #3,” one participant at Brandenburg’s rally actually stated, “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.” The Klan members also discussed participating in a march on Washington to fight for the white race, and threatened to take “revengence.” While the Klan’s speech was utterly despicable, a unanimous Court held that the Ohio Act was unconstitutional because it punished “mere advocacy” of unlawful action.

According to the Court, the United States Constitution does not allow the federal government or a state government to proscribe advocacy of the use of force or unlawful action, “
except
where such advocacy is directed to inciting or producing imminent lawless action
and
is likely to incite or produce such action” (emphases added). This opinion cemented the rule that neither the states nor the federal government can pass laws to silence offensive or inflammatory statements that are not likely to result in imminent lawless action.

The new rule on free speech from and after
Brandenburg
—and still the law today—is that all innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to neutralize it before the sought-for result can come about. Therefore, if
Brandenburg
had been applied during World War I, or during America’s preoccupation with the evils of Communism, all of the aforementioned cases would have come out differently. Unfortunately, Clarence Schenck, Eugene Debs, Charlotte Whitney, Clarence Waldron, and Robert Goldstein, who spent their adulthood as prisoners for their speech, were dead by the time the Court came to its constitutional fidelity in
Brandenburg
.

Brandenburg
is still good law for good reason. As Americans, we are brought up under the impression that we live in a “free country,” where we can say whatever we want, with very limited repercussions.
Brandenburg
reestablished this view, while also
protecting against unthinking, reflexive violence. The
Brandenburg
decision ensures lively debate on key public issues, but also guarantees exposure to all kinds of opinions, no matter how disgusting or irrational. We do not enjoy hearing about Ku Klux Klan rallies, or any type of hate speech.

Mahmoud Ahmadinejad, the current President of the Islamic Republic of Iran, has called homosexuality an abomination, denied the Holocaust, and hopes someday to blow Israel off the face of the Earth. Nevertheless, Columbia University President Lee C. Bollinger invited Ahmadinejad to speak at his school on September 24th 2007. Bollinger introduced Ahmadinejad as a “petty and cruel dictator,” and Ahmadinejad’s speech was met with strong opposition from the audience, as well as protestors outside the event. At first, one might ask, “Who would welcome such a lunatic?” Looking back on the event, Bollinger’s goal was clear: he wanted to expose his students to Ahmadinejad’s views, so as to educate them and show them that such ideas cannot gain much traction in America, but the speaker of them has as much right to advance them as does any other speaker to seek to repel them.

The Court in
Brandenburg
essentially conveyed the same message. That is, all American governments must permit all speech, whether offensive, harmful, incendiary or not, and trust that a consensus of freedom will prevail.

Did You Get the Message?

The government frequently tries to regulate “commercial speech,” or speech that proposes a commercial transaction. After deciding that commercial speech is afforded at least some First Amendment protection in
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council
(1976),
¹⁵
the Supreme Court of the United States developed the modern, speech-protective rule governing restrictions on commercial speech in the case of
Central Hudson Gas v.
Public Service Commission of New York
(1980).
¹⁶
In
Central Hudson Gas
, the Commission issued an order banning electric utility companies from engaging in promotional advertising intended to encourage the use of electricity. The Court invalidated the order, outlining a four-part test used to determine the validity of similar restrictions.

First, the Court determines whether the speech at issue is true and nondeceptive, and whether it promotes a lawful product or service. Second, the Court determines whether the government has a substantial interest in regulating the speech. (How can any government in America have any legitimate, lawful, constitutional, national interest in regulating speech?) Third, the Court determines whether the regulation directly advances the government’s interest. Fourth, the Court determines whether the government’s restriction is more extensive than necessary to serve the interest. The fourth prong of the test is the most crucial, as it is the most difficult for the government to satisfy.

In
Central Hudson
, the Court found that the ban on
all
promotional advertising was more extensive than necessary, because no exception was made for promotional advertising of electric products that would actually
reduce
total energy use. Furthermore, the Commission did not demonstrate that its interests could be satisfied in a more limited way.

The Supreme Court, in the last twenty years, has used the
Central Hudson
test in a very speech-protective manner. In
Edenfield v. Fane
(1993), the Court bolstered the
Central Hudson
test, placing the burden on the government to demonstrate that its restriction
directly
advances the state’s interest.
¹⁷
In the case of
44 Liquormart, Inc. v. Rhode Island
(1996), the Court was faced with a Rhode Island statute prohibiting
all
advertising of the price of alcoholic beverages in the State, except for price tags or signs located within liquor stores and not visible from the street.
¹⁸
The Court invalidated the statute.

While some of the justices simply held that the law violated the fourth prong of the
Central Hudson
test, Justice Stevens went one step further in his plurality opinion. According to Stevens, “[bans] against truthful, nonmisleading commercial speech [usually] rest solely on the offensive assumption that the public will respond ‘irrationally’ to the truth.”
¹⁹
This statement could not be more accurate. The government cannot rob persons from saying whatever they want nor keep information or opinions away from consumers. Why is the government opposed to persons making informed decisions for themselves by recognizing their natural right to think, speak, publish, and hear whatever they wish about whatever they wish?

Unfortunately, the government does not seem to get the message. In
Lorillard Tobacco Co. v. Reilly
(2001), the Massachusetts attorney general issued regulations banning outdoor advertising of tobacco products within one thousand feet of a public playground or elementary or secondary school.
²⁰
The Supreme Court held that the regulations violated the First Amendment. Justice Sandra Day O’Connor delivered the opinion of the Court, in which she conceded that the State has an interest in preventing underage tobacco use, but stated that “[tobacco] retailers and manufacturers have an interest in conveying
truthful information
about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products”
²¹
(emphases added). The requirement of truthful information is antithetical to “Congress shall make no law abridging . . . the freedom of speech.” Is the government, which has stolen everything it owns and has lied about everything it does, institutionally capable of ascertaining the truth? Only if the truth will enhance or confirm its power; otherwise, I think not.

Despite Massachusetts’ failure to control tobacco use, the federal government found it wise to give similar regulations a shot. On June 22nd 2009, President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act.
²²
The word
control
is actually built into the title of the law! The Act restricts retail stores and many forms of print advertising to black-and-white text.
²³
In step with the unconstitutional Massachusetts regulations, the Act also bans outdoor advertising within one thousand feet of schools and playgrounds.
²⁴
According to opponents of the law, the ban on outdoor advertising would essentially ban tobacco advertising in many cities.
²⁵
Furthermore, the ban on colorful ads will undoubtedly restrict tobacco companies’ communications to adults.
²⁶

This law is filled with even more First Amendment problems than the regulations in
Lorillard
, and will undoubtedly face constitutional challenges. I have an idea: If the government hates or fears certain speech, why not combat it with more speech rather than making it criminal? If government derives its power from the consent of the governed, and if we the governed cannot ban the speech we hate or fear, how can we authorize the government to do so?

The government also tries to protect its citizens from indecency and nudity. In
Erznoznik v. Jacksonville
(1975), the Supreme Court of the United States struck down a Jacksonville, Florida, ordinance characterizing nudity in films displayed at drive-in movie theaters as a public nuisance.
²⁷
Specifically, the ordinance banned movies “in which the human male or female bare buttocks, human female bare breasts, or human bare pubic areas are shown, if such motion picture[s] [are] visible from any public street or place.” Such “selective exclusion” is not only odd, but blatantly reveals the government’s attempt to regulate some types of speech “on the ground that they are more offensive than others.” According to the Court, these types of restrictions violate the First Amendment. The Court also opined that the Jacksonville ordinance is “over-inclusive” in that it disregarded the context in which the nudity was portrayed. Therefore, the ordinance worked to restrict nonobscene material.

In 1989, the Supreme Court struck down a ridiculous law banning the interstate transmission of “dial-a-porn” services that communicated “indecent” telephone messages.
²⁸
Justice Byron White wrote the opinion of the Court, in which he stated that the government cannot ban messages that individuals must take “affirmative steps” to obtain. Justice White understood the government’s interest in protecting children, but reasoned that the federal statute amounts to censorship “limiting
the content of adult telephone conversations to that which is suitable for children to hear.”
²⁹

The foregoing examples represent just the tip of the iceberg. Fortunately, however, the Supreme Court has generally resisted government efforts to circumvent the First Amendment and control people.

The “Fairness” Doctrine and Censorship

“Fear of ideas makes us impotent and ineffective.
”

–
Supreme Court Justice William O. Douglas

The so-called Fairness Doctrine debuted in 1949, as a Federal Communications Commission (FCC) rule requiring that licensed broadcast stations discuss public issues and present both sides of any debate.
³⁰
The Doctrine stemmed from the FCC’s fear that due to the limited number of radio frequencies available, and the overwhelming number of applications for licenses, broadcasters could simply report a limited number of perspectives, shutting out most other views.
³¹
The Doctrine worked in tandem with Section 315 of the Communications Act of 1937, which mandated that radio stations offer “equal opportunity” to all legal candidates for specific offices if it permitted one candidate to use its airwaves.
³²