CITIZENS UNITED v. FEC : WHY THE SUPREME COURT'S RECENT CORPORATE ELECTION SPENDING CASE IS ALL WRONG

AN ESSAY

PART 1

Perhaps against my better judgment, I passed several hours this weekend working through the Supreme Court's recent campaign spending case: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(slip op.). In brief, the case invalidates a Congressional Act that restricts corporations from making "independent expenditures" or issuing "electioneering communications" that expressly "advocate the election or defeat of a particular Federal candidate" within 30 days of a Federal election. 2 U.S.C. §§ 441(b), 434(f)(3)(A). The Court said that the Act violated "all corporations' right to political speech" under the First Amendment. In the process, the Court overruled a 20-year old precedent that upheld the same law on the State level: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

I reacted with surprise when I learned what the Court had done. After all, it made perfect sense to me why Congress would want to restrict corporations' ability to spend money advocating particular Federal candidates: To prevent massive, wealthy businesses from deluging the public with their views, foreclosing fair debate in an election. Money buys influence. Even if corporations do not use money to literally "buy off" a candidate, they can easily use it to buy up all the airtime and essentially tilt the playing field to favor candidates they like--namely, guys who support corporations and their agendas.

In 1990, the Supreme Court said as much. In Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), the Court--speaking through a 6-3 majority--concluded that restrictions on corporate "independent expenditures" during elections did not violate the First Amendment. True, such restrictions impacted corporations' "freedom to speak." But the Court found the State's interest in preventing "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form" justified restrictions on corporate political speech. Id. at 660. The Court further reasoned that a State could restrict corporate spending on elections in order to curb "corruption or the appearance of corruption." Id. at 659.

In other words, the Court recognized in 1990 that corporations hold disproportionate political influence in America because they have so much more money than individual voters. That was true 20 years ago. It is even more true today. Corporations are getting bigger and bigger. Traditional competitors merge with each other. Their treasuries grow. And they can use that money to dominate the airwaves before elections in ways that individuals cannot.

But now the Court overrules Austin. Writing for the new conservative majority, Justice Anthony Kennedy called Austin "poorly reasoned," even though six justices voted for it just 20 years ago. So I guess that means a case is "poorly reasoned" when it tells the truth about corporations. It is no accident that Kennedy did not vote for Austin back in 1990. Today he gets his revenge, thanks in large part to right-wing help from Bush appointees Clarence Thomas, John G. Roberts and Samuel A. Alito. Those guys weren't around in 1990. Now they're calling the constitutional shots: They think Austin was "poorly reasoned," so they overruled it.

Why did they think Austin was "poorly reasoned?" After all, doesn't it seem obvious that Congress should take steps to prevent massive corporations from dominating news cycles at election time? I think so. But I'm not on the Supreme Court.

Much to my amazement, the conservatives actually phrase the debate in "liberty" terms. They think that corporations are exactly the same as private individuals when it comes to First Amendment rights. Applying that legal fiction, they think that corporations--like individual guys on soapboxes--have the right to unlimited free speech. And they are outraged that "poor little corporations" might face criminal prosecution under the law if they spend money supporting a Federal candidate before an election.

To be clear, the Federal law in this case does not bar corporations from spending money on elections. It merely requires them to set up separate entities for political purposes--so-called "Political Action Committees" (PACs). If a corporation wants to spend money advocating for a candidate, it has to spend through the PAC, and the PAC must report its funding sources. This allows the public to see who is paying for the corporate messages. PACs must also keep a treasurer and records. Yes, corporations have to endure some bureaucracy before exercising their First Amendment rights under the law. But it is not as if they cannot speak: They must merely follow a few more administrative steps than private individuals.

Yet the conservatives scream bloody murder about these administrative steps. How unjust and unfair, they say, that corporations must form new entities and pay some paperwork expenses in order to influence Federal elections! Justice Kennedy paints a doomsday scenario in which he claims that "poor little corporations" cannot afford to comply with these "administrative steps" prior to speaking on an election. He says nothing about the mammoth corporations that have the time and resources to comply with the law. No, it's all about the "little corporations--" the poor, wronged little corporations and small family businesses.

In truth, it is extremely easy for small businesses to circumvent the law here. Assuming that small businesses even have the capital needed to advertise for major Federal elections, they could avoid problems with the law merely by creating a PAC or by speaking as individuals. The law only applies to corporations, so a "little" corporation could sidestep it by refraining from speaking as a corporation. If a "little" corporation only has two members, they could speak as individuals "with connections to small business." They do not need a PAC. They still have their individual First Amendment rights. When the law involves fictions like "corporate people," it is easy to be imaginative in thwarting those fictions.

In this light, it is foolish for the conservatives to crusade for the "poor, wronged little corporations." By standing up for the "little corporations" in Citizens United, they actually abolished restrictions on the big corporations--and they were the ones who caused the problem in the first place. They threw the baby out with the bathwater. But that was probably what they intended all along.

And what glib reasoning the Court used to reach its corporate-friendly conclusions. While I might find it obvious that "immense aggregations of corporate wealth" have a "corrosive and distorting influence" on Federal elections, the Court resolved that quandary easily enough. On this point, Justice Kennedy merely says: "We conclude that independent expenditures made by corporations do not give rise to corruption or the appearance of corruption." Citizens United, 558 U.S. __ (2010)(slip. op. at p. 42).

Oh, all right. I'll just take your word for it. When I see a corporation funneling $140 million to advocate a Republican candidate for Senate, I won't assume any corruption. Corporations, after all, are selfless and would never do anything underhanded.

Let us even imagine that corruption--or the appearance of corruption--does not flow from corporate expenditures on behalf of a candidate. Even then, the fact that a corporation spends massive amounts to elect a corporate-friendly candidate creates popular perception that the corporation "bought" the candidate.

But Justice Kennedy resolves this issue easily enough: "The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy." Citizens United, 558 U.S. __(2010)(slip op. at 44).

Of course not, Justice Kennedy. How could I lose faith in our democracy when major corporations outspend their ideological opponents by millions to get pro-business Senators, Representatives and Presidents elected? How could I lose faith in our democracy when major corporations buy up all the airtime to get their guys in office? After all, I have to respect corporations' First Amendment rights, too, don't I?

According to Justice Kennedy, indeed I do--even if respecting a corporation's First Amendment rights makes it almost impossible to effectively exercise my own.

At this point, we begin to see the real problem with the conservatives' philosophy about corporate free speech rights. After all, when a powerful person--or a powerful group--exercises his free speech rights, he makes it more difficult for less powerful individuals to voice theirs. It is elementary that money translates into political influence. People with more money can speak more loudly on issues than those with less. By definition, corporations have far more money than even powerful private individuals.

Under this reasoning, it is easy to see how corporations can drown out debate simply by exercising their First Amendment rights. They can overwhelm private opposition by spending massive sums on ubiquitous advertising. That is the "corrosive and distorting influence" that the Court described in Austin. And corporate power to exert "corrosive and distorting influence" is the reason why Congress imposed limitations on the their ability to exercise their speech rights in the first place. Put simply, when corporations exercise their speech rights, they make it progressively more difficult for individuals to exercise theirs.

That is the real meaning of the conservative "corporate liberty" argument: By freeing corporations to speak, everyone else has to shut up and listen to them. In my view, that is not what the First Amendment is about. The First Amendment is about individual rights, not corporate rights. If corporate free speech rights make it difficult for individual free speech rights to survive, I have little problem regulating corporate free speech rights.

But Justice Kennedy does not acknowledge any of this. He does not see the obvious--and disturbing--practical implications behind his reasoning. Rather, he seems to dwell in some ethereal place in which corporate liberty is the same as individual liberty. As such, he sees the corporation as the victim. He even ascribes wisdom to corporations, as if corporate speech could actually enlighten the population: "Corporations do not have monolithic views. On certain topics, they may possess valuable expertise, leaving them best equipped to point out errors and fallacies in speech of all sorts, including the speech of candidates and elected officials." Citizens United, 558 U.S. __(2010)(slip. op. at 48-49).

Contrary to this rhetoric, corporations do have monolithic views on many issues. When it comes to profitability and shareholder enrichment, all corporations are the same: They want to make as much money as possible. That is a "monolithic view." In that sense, corporations will always say the same thing: Namely, whatever will benefit the corporation in the circumstances. In political speech, that means a corporation will always say things to support candidates who will make them richer. Given that, it is ridiculous to think that corporations will somehow "enlighten the public" with their "diverse viewpoints" on life. Corporate political speech is all the same: It is calculated to get people elected who will make them richer. End of story, Justice Kennedy.

In sum, this case disgusts me. I have other objections about it that I will raise in a later post. But for now, it is enough for me to say that the conservatives' view about "corporate liberty" eviscerates the First Amendment's focus on individual expression. Congress understood that corporations had to cede some expressive liberty in order to protect everyone else's relative ability to engage in political speech. Now that the Court has abolished those restrictions, it has opened the door to even greater corporate control over government.

Corporate control over government was already bad before this case. Now it will get even worse. As I suggested in a satire a while back, we might as well just rename the country the "United States of America, Inc." because that's exactly where we're headed. Or maybe we're already there.

OUR SHAMELESS, DISGUSTING SUPREME COURT

OESTERHOUDT STRIKES

Today I am reading the Supreme Court's decision about corporate funding in Federal election campaigns: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(No. 08-205 slip op.). I have already heard horror stories about this case. But I am always careful to judge Supreme Court cases without actually reading them. The press usually distorts what Supreme Court cases actually say. Sometimes they exaggerate. Other times they leave out disturbing (or encouraging) nuances. If my legal education taught me anything, it was always to read a text carefully before saying anything about it. And you really have to do that in order to understand a Supreme Court case.

That is not to say that magic lies within Supreme Court cases. Far from it. In most cases, Supreme Court decisions represent nothing more than gross political prejudice masquerading as erudite legal science. Justices make up their minds about the political issues at stake in a constitutional question. Then they instruct their law clerks to dress up their prejudices in neat legal rhetoric for the presses. Principle rarely plays a role in this process. It's just power and political judgment operating as law.

In law school, I read old Supreme Court cases and marveled at them. In the 1950s and 1960s, the Court actually seemed to want to find justice in American law. I even dreamed about becoming a justice myself: It seemed that they could actually do some good in the world. Men like William J. Brennan, Jr., Thurgood Marshall and William O. Douglas became my intellectual heroes because they spoke out against entrenched American injustice. And they bent positive law in order to achieve justice: They knew that positive law could legally create injustice just as easily as a mob could inflict injustice without law.

But those days are long, long gone. Supreme Court justices today do not fight the good fight. They are tired, uninspiring, lukewarm political actionaries who do less to enlarge individual rights than to stamp out what few liberties Americans still have. Worse, the current five-member conservative alliance is far more concerned with corporate freedom than individual rights. Under Chief Justice John G. Roberts, Jr., the Constitution stands for corporations, not people.

That is not inspiring. It is just disgusting.

It is doubly disgusting because justices today actually reference Supreme Court precedent enlarging individual freedom to defend massive corporations. I have only made it through the first 12 pages in Citizens United v. Federal Election Commission, and already Justice Kennedy cited two cases in which Chief Justice Roberts referenced cases from the liberal 1960s to argue that "corporations need freedom, too." This is like the KKK using Brown v. Board of Education, 347 U.S. 483 (1954) to argue that "murderous white bigots are people, too." This sheer dishonesty--and ignorant contempt for American history--makes my jaw drop.

First, Chief Justice Roberts cited New York Times v. Sullivan, 376 U.S. 254 (1964). In that case, arch-liberal justice William J. Brennan, Jr., concluded that newspapers could not be sued for libel when publishing stories about "public figures" and "matters of public concern." The case stands as a testament to individual free speech rights. It established a principle that the people can speak freely about the powerful without substantial legal worry under the First Amendment. It reinforced the idea that the First Amendment is the people's check on the powerful: They have a right to speak no matter how exulted their target.

But now comes Chief Justice Roberts. He rips Sullivan's hopeful constitutional language from its context to support a conclusion that the First Amendment "must give the benefit of any doubt to protecting rather than stifling speech." Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469 (2007)(opinion of Roberts, C.J.).

Justice Brennan wrote those words to promote public speech by individuals against powerful interests. They made sense in that context. But now Chief Justice Roberts shamelessly co-opts them to promote corporate speech designed to influence elections and ram corporate messages down people's throats. This is the ultimate misuse of Sullivan. Justice Brennan would have been horrified to see his language warped for this purpose.

Chief Justice Roberts does not end here. He uses another classic liberal First Amendment standard from the 1960s to support neoconservative corporate license in the 2010s: NAACP v. Button, 371 U.S. 415 (1963). In that case, the Court struck down segregationist Virginia laws that banned black political agitators from promoting civil rights. Justice Brennan--the liberal champion--again wrote the opinion, remarking: "First Amendment freedoms need breathing room to survive." Id. at 433.

Chief Justice Roberts used the same sentence to defend the corporate freedom to ram political advertisements down people's throats. Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 468-469 (2007).

This is so outrageous it is almost satirical. To even imagine that a Republican Chief Justice would steal language from a symbolically liberal free speech case to aggrandize corporate power is so shocking that it prompts disbelieving laughter. But Chief Justice Roberts did exactly that: He used a 1960s civil rights case about the First Amendment's importance in the individual's arsenal against injustice to bolster a corporation's power to maintain its strength over individuals.

That is almost as inappropriate as prying random words from a Hitler speech to commend Jewish freedom.

Sadly, this is how the Supreme Court operates these days. It has no respect for principle, no respect for American history and no respect for consensus. It ignores the fact that the Constitution should provide guiding unity on major principles, not an excuse for discord. On hot-button issues, its members dig in their heels and act like children--or Congressmen. They cannot agree on anything except their own base prejudices, which they enshroud in law as soon as they get a fifth vote--just like Congressmen.

Maybe this is just how any human being would behave in the circumstances. But these are Supreme Court justices; we should hold them to a higher standard. They say they are not politicians. They say they rule "on the law and nothing else."

But I see through the charade. It's all nonsense. It's all just crude power play. And it's disgusting because it's so dishonest. If a Chief Justice can corrupt hopeful language from 1960s civil rights cases to enlarge corporate power today, it is obvious that the Supreme Court has no shame at all. Just like any political group, it will use whatever means at its disposal to achieve particular results.

Yet the Constitution is more concerned with means than ends. The People adopted the Constitution because they demanded respect for individual rights against the government and larger powers. While corporations may not have been as powerful in 1787 as they are today, it is indisputable that they now wield enormous influence over American lives. Corporations can dominate debate about public issues in a way the Framers could scarcely have imagined. That is dangerous for individual First Amendment rights.

Apparently, this Supreme Court does not understand that. Now I'm afraid to continue reading the case. Who knows what terrors lurk in its later pages.

On the other hand, I might get a few guffaws along the way--and more ideas for satire.

I can't write the shit Supreme Court justices come up with.

YOU TUBE SOLD OUT

A REFLECTION

I am a You Tube addict. I started using it way back in 2005. In those days, I felt special because I knew about this really cool secret site that let you watch videos that you hadn't seen in years FOR FREE. Not many people knew about it back then. It was like the early internet and Napster: It was uncensored, uncut, highly individualistic and--best of all--free. You could watch whatever you wanted when you wanted. It was simple and fun.

But you know how this story ends. Now everyone knows about You Tube. People even launch careers posting on it. And once big corporations realized how many people they could reach by tapping into You Tube, the Wild West atmosphere quickly eroded. Although I can't say exactly when it happened, big media companies bought up You Tube. They started tattooing advertising filth all over the screen, along with copyright notices and other hogwash. They even started sucking the fun out of You Tube by disabling audio tracks on videos that "did not obtain permission" from certain license holders. Finally--and most vexingly--they identified "popular" videos and forced viewers to sit through a full-blown ad (maybe for cologne, erectile dysfunction pills or a car or something) for 40 seconds before loading the video.

Now I can't just sit and browse videos at will. Now I have to sit through another fucking GEICO commercial before seeing James Brown perform.

All this regulation pissed me off. I like unbridled expressive forums. I don't like it when they devolve into just another cash-and-carry venture for greedy corporations. Yet that's generally what happens in America. I actually invented a rule to describe this process: "When a dollar can be made, it will be made, all other considerations be damned." Thus, when a medium appears to grab everyone's attention for a sufficiently long time, you know some corporate asshole will want to cash in on it. What starts as a fun phenomenon degenerates into just another profit opportunity. And when money's at stake, no one has fun anymore, let alone free rein to say what they want.

In a word, You Tube sold out. I suppose I can't blame the guys who originated the medium for handing everything over to the media giants. Hey, I'd like to be set for life, too. It's just sad to lose expressive free-for-alls like the old You Tube. Free-for-alls in any human endeavor are becoming increasingly rare these days. You always wind up contending with some stodgy corporate rulemaker who drains fun in order to guarantee a profit for the company. And as much as I care about artists who want to protect their works, I just don't see how it damages an artist's fortunes when some teenager posts a video on You Tube just for fun. In other words, P. Diddy won't go broke if someone replays an "All About the Benjamins" video from 1997.

Despite all the drawbacks, You Tube still serves an extremely valuable function. There are more videos on it now than ever before. You can still peruse as many videos as you want for free. You just need the patience to endure compulsory commercial excrement for several minutes per session. And sometimes you might discover that one of your favorite videos has been "removed for copyright issues."

I suppose there is one saving grace in this commercial sewer: Sometimes daring individuals rename videos that have been removed and post them again. This defies the regulators.

I like that. It shows that you can't completely suppress expression, no matter who holds what property rights. That's the internet spirit, too: There's still some Wild left in the West. You just need to look a little harder to find it.

ALTERNATIVE HEALTH REFORM PROPOSALS : LETTING EVERY VOICE BE HEARD

PERSPECTIVES ON THE HEALTH CARE DEBATE

For over a year now, our country has grappled with "the health care problem." At every level of government--and even at every level of our society--we have debated the moral, ethical, practical and financial ramifications that will flow from health reform. For the most part, we hear two sides. One side says that the United States has a "moral responsibility" to care for its citizens' health, even if it costs an astronomical amount and inhibits private commerce. The other side says that private health care more than sufficiently provides medical services to the American people. It also says that any government foray into health care will lead to crushing taxes and bureaucratic interference in private health care decisions. The other side says that the private system--despite its flaws--maintains the classic American spirit of free enterprise that yields beneficial scientific discovery. Without an economic incentive to pursue medicine, according to these voices, such discoveries would wither away.

Our Nation cares deeply about these questions. Congress has ferociously debated health care for months. Our citizens have come to blows over the issue in town hall meetings from Maine to Malibu. Many Americans see the health care debate as a symbolic battle for the country's soul. For them, health care represents sacred ground: If the government trespasses on it, every American's liberty will cease to exist. Some even think that State-run health care will result in "Death Panels" that decide whether elderly citizens live or die.

Here at Reason, Commerce, Justice and Free Beer, we take no position on the health care debate. We merely provide a forum in which Americans--and even foreigners--can candidly offer their opinions about this very important issue. Nonetheless, we find it regrettable that the debate has broken down along traditional political lines. We believe that democracy can only work when every voice is heard. And in the health care debate, it seems we only hear two voices: One Democratic, the other Republican.

As a serious news outlet committed to robust public debate, we believe that the American public has a right to hear alternative proposals for health reform. In that light, we are proud to share our readers' suggestions about how to solve the health care mess in the United States. These suggestions do not fall into the traditional conservative/liberal dichotomy. Rather, they express the compelling variety that makes America such a great Nation. We believe it is time to let every voice be heard on the health care question. Silence benefits no one. Our democracy can only survive when we allow everyone to speak, even those with whose perspectives we may disagree.

SUGGESTION #1: THE ARCHITECTURAL SOLUTION

Dear Sirs,

I am sick and tired of the Democrat-Republican back-and-forth over health care. As a working civil contractor with mouths to feed, I would like to suggest an architectural solution to our health care problems.

Health care takes place in buildings. It costs money to maintain buildings. In fact, the more square footage you have, the more it costs to pay for a building. Now, we could save so much money in the health care system if we simply tightened our belts and knocked down one wall per room in every health care establishment. Think about it. Every room in every hospital, clinic and doctor's office has four walls. If we just sacrificed one wall in every room that provides health care in America, we would reduce health care expenses by 25%. That money could be used for research, charity and providing care for the uninsured, all without governmental interference. We just need to do without one wall per room.

We can do it. We just need to tell ourselves that four walls is too many. I'm ready to make sacrifices. Are you? As a contractor, I know that most walls are unnecessary; we can get rid of a few. And when we do, we'll be amazed how much money we'll save.

Yours truly,

Bill McCloskey, Contractor, Omaha, Neb.

SUGGESTION # 2 : THE PRODUCTIVITY SOLUTION

Liebe Mitleser (Dear Readers),

In 1934, the new government in Germany declared: "God cannot have wished that a deformed baby live." We believe that statement can help America solve its health care problem.

America spends untold amounts caring for malformed children. It spends even more keeping people alive who would not have survived in nature. These people force up costs for everyone else who needs health care. And caring for them yields no increase in production. After all, caring for a deaf-mute with deformed arms for 40 years will not transform him into a Nobel winner or a successful grain wholesaler. Rather, he remains a muted cripple--and a money pit.

We believe, as the new government in Germany believed in 1934, that it makes no sense spending national treasure preserving worthless life. America could save countless dollars if it simply euthanized crippled children and hopelessly injured adults. These vegetables represent the single-most expensive item on the health care menu. Caring for them results in massive financial wastage without any hope of return. This is simply not good financial management.

We propose a final solution to the health care problem. By neutralizing high-priced cripples, mentally-defective children and brain-dead accident victims, we will flush the system with money, as well as free hospital beds for productive citizens who actually stand a chance to recover. We must be pragamtic. We must care for those for whom care will actually make a difference, not those who will never pay tax, never serve in the army and never invent anything worthwhile for society.

If we wish to reform health care in America, let us provide care only to those who can contribute something for the investment we make in them.

Sincerely,

E. Fritz Goebbels, Insurance Broker, Lansing, Mich.

SUGGESTION # 3 : THE CULINARY SOLUTION

Americans fail to understand just how expensive hospital food is. Every year, the health care system spends over $450 billion on low-quality entrees--including pudding--to feed patients. Although this is a shocking fact, I believe we can turn it to our advantage.

I have worked in the St. Luke's Milwaukee Critical Care Unit for over twenty years as Patient Diet Supervisor. During that time, I have seen first-hand how much money we waste on bad hospital food. True, we have nourished patients under our care. But they all complain about the food and many say they would rather eat their shoes than another foil-wrapped Chicken a la King.

I think we can meaningfully reform the health care system in America if we simply stopped serving food at hospitals. Patients don't like it anyway. Plus it costs over $450 billion per year. By dispensing with daily meals, we would free up funds that could be used to perform surgery, set splints, buy medication and open new wards.

Naturally the objection follows: So what will the patients eat? Simple: Anything they want. Nothing is stopping them from ordering their own meals or--God forbid--cooking themselves. Responsible citizens manage their own diets. Just because they are in the hospital should not make them think they can't cook for themselves anymore. If they want KFC, they can order it. If they want to cook a four-course Italian banquet complete with wine and cannoli, let them. This is about personal and financial responsibility.

Some patients might be too sick or injured to order their own meals. In that case, relatives can cook or order for them. It might be difficult for a relative to insert a chicken wing into the mouth of an intubated child, but no one said health reform would be easy. If some patients die because they cannot eat outside food, that's the price we pay. On the other hand, we will happily provide feeding tubes for patients who do not feed themselves. We simply leave it to the relatives to fill those tubes with milkshakes or other liquid meals.

It is amazing how much money we'll save by closing down hospital food services. Plus we'll encourage individual responsibility and healthy eating choices among the patients.

Yours very truly,

Julie M. Wakaska, Patient Diet Coordinator, Milwaukee, Wisc.

INTENT AND THE FIRST AMENDMENT : POLICING THE IMPOSSIBLE

AN ESSAY

Over the last few weeks, I've had the chance to read some Supreme Court cases. I always keep a long list of cases I want to read. I have not had much time to write as much as I'd like lately, so I've taken the chance to read a few. That's not to say that Supreme Court cases freshen my outlook. To the contrary, they often confirm my overriding belief that the Supreme Court is full of shit. As a satirist, I need to see foolishness at work in order to properly mock it. Both sadly and thankfully, the Supreme Court keeps me well-stocked with preposterous arguments, as well as unabashed ideology masquerading as neutral legal principle.

If I had to choose an area of constitutional law that interests me the most, I would choose the First Amendment. The First Amendment is the soul and conscience of the Constitution. It is the intellectual nucleus of our liberal republic. Although the Framers may have conceived it very differently than the way we understand it today, it is a beacon of individual hope in an otherwise dully administrative document. The First Amendment protects the individual freedom to speak, write, think and express ourselves as the people we are. It forbids government from punishing us because we hold beliefs or profess religions. It also guarantees a free press, ensuring that--at least in theory--every voice has a forum to be heard. While that may not technically be true in an age when money translates into the power to circulate messages, it at least espouses a strongly positive ideal: That all voices have worth, no matter how much the majority rejects them.

These are metaphysically good principles in which anyone can believe. In fact, they are so good that both American patriots in the 18th Century and revolutionaries in later times died for them. Without the First Amendment or something like it, we could not truly say what we mean in life. And when we cannot say what we mean, we cannot be who we are. In that sense, the First Amendment is all about individuality. That is inspiring. That is why I like studying it. It is not just about property and penalties. It is about ideas and expression. There are not many legal areas that impact such profoundly philosophical questions. I like profundity more than banality.

But there is a sharp distinction between First Amendment theory and Supreme Court practice. For better or worse, nine men and women have the sole authority to determine whether government violates First Amendment principles in individual cases. In these clashes between the individual and government, the Court sometimes favors liberty. At other times, it permits government to stamp out individual self-expression. Supreme Court justices say they "rule according to the law." But in First Amendment cases--as in virtually all hotly-debated constitutional areas--the justices barely mask their own political and ideological leanings. They use law merely as a cloak to justify deeply biased political conclusions. Behind all the technical analysis and supposed detachment (many justices abandon detachment altogether) stands stark, flawed humanity. Despite their pedigrees, resumes and degrees, justices are human beings. And human beings are woefully imperfect.

When it comes to the First Amendment, the justices' personal values influence everything they do. If they do not like certain messages, they will find a way to voice hostility toward them. This takes some artifice, of course, because the Constitution forbids government from suppressing speech "solely because it disapproves of the content." But the Court has fashioned doctrines to outmaneuver this result. It allows government to target speech if it artificially regulates the "time, place and manner" in which the speech occurs. So if a city wants to stop communists from speaking, it can say they can only hold a parade on Tuesday at 3 AM in some uninhabited back alley. Obviously, government does not like communist messages. Although it cannot literally ban communism as "content," it can achieve the same result by targeting the "time, place and manner" of communist speech. In this way, the Supreme Court allows government to cloak its own hostility toward certain ideas by phrasing its disapproval in more "neutral ways." The result is often the same: Government does not like certain speech and successfully suppresses it.

Our Supreme Court has burrowed deeply into the First Amendment. The freedom to express individual ideas carries so many exceptions that it is now almost an illusory right. Without going into exhaustive detail, government can suppress speech not only because it occurs in "inappropriate places (ie, schools)," at "inappropriate times (ie, late at night)" or in an "inappropriate manner (ie, too loud)," but also because the speech itself is categorically "obscene," "defamatory," "inciting," or "reasonably likely to lead an average person to come to blows with another." The burden lies on the government to establish that the "dangerous speech" falls into one of these categories, but the Court has been surprisingly accommodating toward government over the years. In fact, it has been so accommodating that it has permitted government to regulate speech even beyond the "traditionally unacceptable categories."

Renton v. Playtime Theaters, 475 U.S. 41 (1986), provides a ready example. That case involved a municipal effort to crack down on porn shops. It was clear that the city simply did not like porn, even though porn is technically "speech" under the First Amendment. So the city enacted zoning laws that forced porn shops into run-down industrial neighborhoods. The law treated porn shops differently solely because they engaged in the porn business; in other words, their speech made them targets. But the Court did not call this "impermissible content regulation." Rather, it fashioned a new exception to the First Amendment: the "secondary effects doctrine." Through this sleight of constitutional hand, the Court proclaimed that government does not violate the First Amendment if it merely wishes to regulate the "effects of speech on the community," rather than the "speech itself." Under this approach, the city in Renton just had to say it enacted the law because it wanted to keep crime down and property values up. Then it said that porn "speech" caused crime to rise and property values to sink. The Court validated the restriction and the porn shops had to move.

In 2002, the Court revisited Renton in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). There, the city enacted an ordinance forbidding more than one "adult business" from operating in the same building. No other business was subject to the restriction. The city said it enacted the ordinance because it wanted to control the "secondary effects" of "multiple adult businesses" in the same vicinity. It invoked the earlier Renton case for support, even though it had no real evidence to show that splitting up two related porn shops in the same building would reduce crime or boost property values. The Court was satisfied with a cursory 1977 study that anecdotally linked porn shops with higher crime rates, even though that study predated the ordinance by more than a decade. In sum, the Court had no problem sustaining a clearly speech-prohibitive, discriminatory law by invoking a doctrine it invented only sixteen years earlier.

In my view, this shows the Court's great willingness to ignore the First Amendment when its members do not like the speech at issue. Obviously Chief Justice Rehnquist and Sandra Day O'Connor did not like porn shops...just look at them:


As much as the majority in Alameda Books may have believed that "constitutional jurisprudence" dictated their conclusion in the case, I venture that it was simply a value judgment. Republicans (all five justices in the majority here were Republicans) don't like porn--well, at least publicly they say they don't. Those values influenced their decision whether to allow government to regulate it. After all, the law in Alameda Books specifically targeted only porn shops. The regulation turned upon the content of the speech. Although that seems to violate the First Amendment's ban on "content regulation," the Republicans found a way to sidestep that result. How? Simple: Values. When a justice doesn't like speech, he or she will find a "legal exception" to suppress it. That's the problem with law.

But there is more to the story. Justice Kennedy issued a bizarre concurrence in Alameda Books that brings another troublesome issue to the fore: Legislative intent. Kennedy--also a Republican, but a grandiose one with a penchant for self-righteous oratory (he's Catholic, too)--said he was "troubled" by the liberal argument that the statute in the case targeted porn shops "solely because of their speech." So he quieted himself by reasoning that a city could rely on the "secondary effects doctrine" as long as it did not "proportionally affect speech." In Kennedy's view, the law in Alameda Books was sound because it had an effect on bad "secondary effects" (good) without affecting the "quantity of speech" (bad) in equal measure. Put another way, because the legislature only specifically targeted "secondary effects" and allowed porn shops to open under separate roofs, it reasonably lowered "secondary effects" without "completely muzzling their expression."

This is a fanciful distinction. In essence, it appears that Justice Kennedy believes that a legislature's stated intent suffices to determine whether it has adopted a "content-specific" speech regulation. Here, it seems obvious that the Los Angeles city council did not like porn shops because they engage in "porn speech." It offended the councilmen's values. They simply did not like the speech. But they escaped constitutional consequence because they said they were concerned about "secondary effects," not the "speech itself." The statute visibly discriminated against porn shops based on their speech, yet Justice Kennedy said that was fine because the legislature had the right intent.

It defies belief to say that a city would not "reduce the quantity of certain speech" if its regulations drive its speakers from the marketplace. Why else would the city want to close down porn shops if it did not like what they were saying? It is too easy to mouth the words "secondary effects" when in fact the legislature flat-out doesn't like porn.

These are important questions because speech regulations are dangerous. When government succeeds in suppressing speech, it gains precedential authority to suppress even more. When the Supreme Court simply goes along with the program, our rights as individuals steadily decline. True, no one wants to crusade for a porn shop's right to sell smut. But the First Amendment does not distinguish between right and wrong speech. If it is speech, we presumptively protect it. Individual freedom depends upon the freedom to express ourselves. And when the Supreme Court slowly allows government to bar us from speaking in certain ways, our liberty slowly suffocates, too.

In short, Supreme Court justices should defer to the individual interest in self-expression in doubtful cases, not the value-laden judgments of local governments. If it allows government to regulate speech content merely by proffering a flimsy "secondary effects" justification, it will not take long to dismantle the First Amendment. If there is one constitutional guarantee that we must defend, it is the guarantee that government will presumptively not regulate the substance of our thoughts and expressions, no matter how unpopular they may be.

THE POLITICAL ASSOCIATION UNITED FOR THE MURDER OF ALL PEOPLE WITH WHOM THEY DISAGREE

POLITICAL PARTIES FOR A CHANGING WORLD

By : Mr. Martin F. Buckley, Esq., Chairman and Political Analyst; J.D. (Harvard Law School 1983); Free Speech Advocate (with exceptions for appropriateness).

We live in a great country because everyone can speak their mind. The United States became powerful because we tolerate many different viewpoints and we profit from an exchange in ideas. Even our legal traditions embody this tolerant approach to intellectual discourse. Unlike many so-called “progressive” European governments, the United States does not ban speech because it disagrees with its content. In Germany, for example, the government bans any speech that glorifies Nazism. Yet here in America, we tolerate such speech. We trust that the American people will listen to every idea and reject the bad ones. In other words, our law doesn’t make martyrs. We let every idea compete for attention in the “marketplace of ideas.” Nazism can’t compete, so Nazis can yack all they want. They have a right to.

But law only tells half the story about free speech in the United States. Just because our law tolerates all viewpoints does not mean we agree with every viewpoint. I, for instance, cannot bear speech about free health care, single-payer systems or “a woman’s right to choose.” I disagree profoundly with all these ideas. Although I acknowledge that our law gives everyone in this country the right to express their views on important issues, that does not mean I do not wish to kill people who disagree with me.

We, the The Political Association United for the Murder of All People With Whom They Disagree, stand for a simple premise: Some ideas are inappropriate. We have particular views about life, property, employment, immigration, child-rearing, health care, military affairs, foreign policy and politics. We have appropriate ideas. We firmly believe that our ideas are the best. If we do not follow them, we are convinced that America will disintegrate into anarchy, socialism or worse. That is why we are committed to defending appropriate ideas. We do not stop with rhetoric. When we lose verbal arguments, we jump over podiums and beat our opponents with iron bars. Free speech is wonderful. But there is only one guaranteed way to defend appropriateness against inappropriate speakers: Murder.

We advocate murder whenever we reach an impasse with people with whom we disagree. Yet we are reasonable people; we only kill our opponents when lesser measures fail. For example, we buy as much airtime as we can to convince our opponents that they are wrong. We show up at their meetings to shout them down or throw trash on their stages. We send targeted newsletters containing false and skewed information about the opposing viewpoint. We even get on national news television shows to make our case before the American people. Yet when these measures fail to convince inappropriate speakers to change their minds, we have no choice. We have to kill them. True, everyone has a right to speak their mind in America. But we also have a duty to ensure that America is safe from inappropriate speech and behavior. The only way to fulfill that duty—while maintaining a healthy respect for free speech rights—is to murder people who disagree with us.

On the whole, murder is a much more effective rhetorical tool than either language or logic. On hot button issues like the environment or race, it is not enough to speak eloquently or convincingly. When a person disagrees with you about race or the environment, you can proffer the most beautiful, logically-airtight arguments in the world, but you still will not sway him. In such cases, murder is the only way to solve the disagreement. It is more fun, too. After all, it is frustrating to debate with a person who stubbornly refuses to change his mind. After a hot verbal exchange, there is nothing more satisfying than to pull out a pistol and shoot the opposing speaker in the head. BANG! That’ll teach you to advocate clean-air technology and affirmative action! In such circumstances, logic only goes so far: Only firearms can firmly settle deadlocked debates.

These are not new ideas. Throughout history, appropriate speakers have won debates by eliminating their ideological opponents. Roman emperors killed those who advocated inappropriate solutions to problems. So did medieval kings. Put simply, only those willing to kill for their ideas have truly left a mark on history. No one ever prevailed in a substantial social debate by outwitting his ideological opponents with florid speeches. No, only murder can put real disagreements to rest. When people make up their minds to think inappropriately, nothing you say will shake them from it. You have to kill them to shut them up.

We proudly follow this tradition. As The Political Association United for the Murder of All People With Whom They Disagree, we are committed to speaking our minds. We have not only a constitutional right, but also a moral obligation to lead America in the appropriate direction on contemporary policy questions. Inappropriate ideas are more dangerous to America than any foreign dictator or Muslim bomber. That is why we stand united to debate and—if necessary, shoot—anyone who refuses to see things our way. We promise always to first use logic and reason to convince others that they are wrong. But when it is clear that we have reached an ideological impasse, we promise to murder our opponents. America deserves to speak with one voice: When disagreements exist, we cannot speak with one voice. That is why we are unafraid to murder those who disagree.

This does not mean that we gainsay the right to free speech under the First Amendment. To the contrary, we believe in the Constitution and liberty. Every American is free to speak, think and believe as his conscience directs. But anyone who disagrees with us does so at his peril. If someone thinks differently than we do, we admonish him to keep a lid on it, because if he debates us, we will kill him. In this way, we maintain a proper balance between our respect for constitutional liberty and our duty to lead America in an appropriate direction. In a word, you are free to think and say what you want; just don’t you dare disagree with us or we’ll put a bullet in your brain.

Never before has our Nation needed our party as much as it needs us now. Never before has our Nation faced so many burning policy questions. For the first time in our Nation’s history, lawmakers seriously debate dismantling the free market system. For the first time in our Nation’s history, a black President is calling for national health care reform. And for the first time in our Nation’s history, we face unprecedented threats from Muslim enemies bent on our destruction.

Yet we are not moving forward. Debates on these issues degenerate into shouting matches and finger-pointing competitions. Both sides tender arguments. Both sides think they know what to do. Nothing gets done because there are too many disagreements.

This is where we come in. Only we can resolve the paralyzing impasse in the national debate. Only we have the courage and fortitude to resolve disagreements in the only way they truly can be resolved: By murder. We will not avert health care collapse until we kill everyone who advocates single-payer systems and Soviet-style “Canada” medicine. We will not achieve domestic security until we kill everyone who advocates closing down Guantanamo Prison and withdrawing from Afghanistan. And we will not rescue the economy until we kill everyone who advocates greater government control over private contracting. At the moment, we cannot move forward on these issues because no one is communicating. People are just jumping up and down, screaming and accusing the other side of “being wrong.” But we promise progress. We promise to solve the disagreements. History is our guide: Disagreements go away as soon as you kill the people who disagree with you.

Aren’t you tired of ineffective government? Aren’t you tired of shrill debates and inappropriate arguments? Don’t you want to start moving forward as Nation? Don’t you feel that we’ve been stuck in the mud for too long? Haven’t you had enough recriminations, backbiting and angry arguments?

If you have, do something about it. Put a party in power that will put an end to all these verbal altercations. Put a party in power with the courage not only to scream and yell at opposing speakers, but kill them, too. We are the Political Association United for the Murder of All People With Whom They Disagree. We are committed to America. We are committed to making the right choices. We do not get bogged down in debates and feuds over abortion and parenting. We just kill people who refuse to see things the way we do.

It’s time to stop the disagreements. Let us be one Nation. Let us speak with one voice. At this challenging time in our Nation’s history, we need unity more than ever. Let us unite—and kill everyone who refuses to join us.

ADVERTISING & INFORMATION : SIMPLE WORKS

AN ESSAY

I noticed something new about advertising as I rode the New York subway this morning. I thought I had written all I could about advertising, but just when I thought I had said enough, a new idea spawned in my head. After all, advertisers stop at nothing to kindle our commercial urges. As such, they resort to any tactic to get our attention and make us want to spend money. The Supreme Court actually grants advertisers full freedom to say whatever they want, provided they are not “deceptive, false or misleading.” Yet that is a meaningless exception, because it is very easy to provide misleading information without “actually lying.” And it is easy to lie simply by keeping quiet about bad stuff.

But today I do not write to analyze advertising theory or constitutional standards. Rather, I write to make a simple point, namely, that all advertisements do the same thing: They selectively provide an “informational tidbit,” which in turn makes a suggestion to the listener. The suggestion is always the same: “Now come give me your money.” Advertisers provide information—perhaps largely true, perhaps half-true, perhaps not true at all—for a purpose: To entice you to give them money. Advertisers do not aim to educate. They do not want you to “know more” or develop into a more “enriched person” with the information they provide. No, they want to “inform you” only to the extent necessary that you feel compelled to spend your money on them. It is strictly instrumental.

Consider these examples. As I sat on the train today, I looked up and saw three distinct commercial messages. The first was an admonishment from Duane Reade, a drugstore. Its message: “There are a bazillion germs on the pole you’re holding.” Broadly speaking, this is information. Maybe some people don’t realize that contagions congregate in crowded public spaces like the subway. Yet Duane Reade doesn’t care whether they’ve just educated you. They don’t care whether you’ve just become a more well-informed person because you heard their message about germs. No, they want you to take the information and translate it into commercial activity. Namely, they want you to say: “Omigod! There are germs all over the place, so I should go to the Duane Reade and start buying things!” Duane Reade is not trying to inspire the world’s next great microbiologist with this information. It is trying to lure an average schmuck into the store to buy cough drops.

In the next message, a local college advertised: “95% of people without college degrees never obtain jobs with salaries over $40,000 a year.” This is information, too. It might be accurate; maybe it isn’t. Still, it sounds relatively accurate (it has a percentage in it…wow), and in advertising, appearances are just as important as—if not more important than— “truth.” No one on the subway is going to check facts anyway, so it really doesn’t matter. Yet the local college does not provide this information to alert its listeners to demographic trends or educational crises in the United States. It wants to spark a desire in its listeners to start spending some money on tuition. After all, according to this information, if you don’t have a college degree, you stand a 95% chance never to make over $40,000 a year. You want to make more than $40,000 a year, so you’d better get a college degree with us. Again, the advertiser here provides information for an instrumental purpose: “People without college degrees don’t make much money. We can give you a college degree. Now give us your money.” Simple.

Finally, an Upper East Side “enrichment group” called the “Center for Practical Philosophy” blared this message: “No other ad on the subway will make you as happy as this one.” The center revealed that it offered classes to teach “working students” about “reason, beauty and justice” (no commerce or free beer; note that), and that its classes would lead to “happiness” by “harnessing the power of attention.” This was not typical advertising fare (ie, it wasn’t hawking trinkets or dental services), but it followed the same formula as any other. Specifically, it provided information about “classes” and those classes can make you “happier than other ads on the subway.” People want to be happy. Again, the message provides information in order to make the ultimate suggestion: “Now give me your money.” You want to be happy, don’t you? Well, here’s some information about happiness classes. Now you know where to spend your money if you want to learn how to be happy.

“Practical philosophy.” That made me laugh. In my experience, the two concepts mutually exclude each other. You’re either philosophical or practical, but not both. If you’re practical, you don’t like “philosophical bullshit” because it “doesn’t get things done.” If you’re philosophical, you don’t like “everyday, boring, banal practical shit” because it’s not “deep” or “sophisticated.” You can’t have it both ways. Yet this advertisement dared to cross the line. It made philosophy—which is generally antithetical to commerce—a commodity to be bought. On the other hand, this is New York. Everything is for sale here, even things that traditionally can’t be bought, sold or “commercialized.” We have more banks than guys named Bob in this town. In that light, maybe I shouldn’t be surprised that philosophy is for sale, too.

But enough about philosophy. The point is that advertising is insidious because it channels information for a limited purpose, namely, to enrich the speaker. Human beings cannot know everything. They have short-range senses; they can only learn so much by direct perception. Everything else requires reliance on second-hand reports and “information sources” like advertising. In many ways, we are all hopelessly dependent on external information sources. Those who possess more information hold more power. That is the nature of things. Advertisers do not want us to “learn about the world” or even expand our consciousness with the information they selectively dispense. They want us merely to learn a few suggestive “facts” then fork over some money.

Ironically, it doesn’t matter whether advertisers provide “accurate” or “true” information to their listeners. Truth is largely irrelevant in commerce; it only matters when a commercial actor must be truthful to avoid a loss. Advertisers, too, provide accurate information if the law threatens punishment or if they want to outdo a competitor. But truth is never the ultimate aim behind advertising. Rather, the only goal is to incite an urge to buy in the listener. Selectively providing “facts” can create that urge. Whether the facts are “true” does not affect whether they will spark a “commercial urge.” In many ways, then, advertising targets human emotion more than reason. Advertisers want to incite a reaction, a need, a desire, an itch to buy. These are not entirely reasonable responses to information. To the contrary, they are childish, even animal responses: Show a dog a bone and the dog will want it; show an average American an all-NFL cable package and he will want it, too. In fact, if consumers had access to all information, they probably would have reason to avoid virtually every seller in the market. In short, advertising would not work if people were too well-informed. And it certainly would not work if people used their reason all the time.

I write all this because advertising literally surrounds us. Commercial speakers speak more than any others. They buy airtime. Their billboards leer over us. Their television messages interrupt us every five minutes. Their radio broadcasts barge in on our music. In short, they own our senses, besieging our eyes and ears with generally unreliable information calculated to arouse our commercial urges. No matter the medium, they all function in the same way: They selectively provide information for an instrumental purpose, then suggest “Now come give us your money.” Some advertisers spark more commercial urges in more people than others. They are called “effective advertisers.” But whether effective or not, they are all doing the same thing. And I venture that there is nothing noble or sophisticated about it.

After all, what do I care whether a private company succeeds in luring more people to spend their money? Who cares? Will anyone even remember? This is the never-ending “commerce dance.” Advertising provides an endless beat for the dance. It just keeps droning on day after day, generation after generation, following the same old formula: Provide information… suggest “Come on down and spend your money…”

In sum, there is nothing to it. It is all the same.

"SEX" IS NOT A BAD WORD ; CENSORSHIP IS

OESTERHOUDT STRIKES

Jeremih’s single “Birthday Sex” should have been just another R&B song about a young man’s assumed romantic prowess. When Def Jam released the single in April, audiences responded with enthusiasm: It went to #1 on the R&B charts and #4 on the pop charts. It fit the “urban love anthem” mold: A man does not buy gifts for his girlfriend on her birthday, so he gives her “birthday sex” as a replacement. And true to the smug, sexually conceited male caricature that so often appears in the R&B canon, Jeremih assures his listener that his sex is better than any material gift.

This is not an uplifting message. In fact, it is laughable. But I am not writing today to mock “Birthday Sex.” I am writing today because mainstream radio stations bleep out the word “sex” when they play the song.

Since when did “sex” become a word “bad” enough to warrant censorship? We all know that the Federal government has power to prevent us from hearing a few “really bad” words during mainstream broadcasts. See, e.g, F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). But those “really bad words” are familiar vulgarities, colorful English phrases that go straight to the unrefined truth about sex and the body. We know we are not allowed to hear the words “fuck,” “shit,” “asshole” and “cock” on everyday broadcasts because those words cut to the linguistic quick about sex, excrement and “private parts.” Popular morality teaches us to revile these things, so law provides society a way to protect our ears from them. For better or worse, these traditionally “bad words” have real rhetorical punch. Their strength lies in their unabashed directness. Their strength lies in their pure Germanic derivation. No doctor or scientist mulled a Latin equivalent for these words. They are brutally honest, English core words. And to some extent, that is one reason why popular morality reviles them: Our society has an uneasy relationship with sex and the body, so it recoils from overly honest expressions about them.

But the traditional reasons for banning “bad words” do not apply to the word “sex.” “Sex,” unlike “fuck” or “shit,” is a Latin-based medical coinage, not a vulgarity. When people honestly talk about sexual conduct, they generally do not use medical terms. They use tried-and-true Germanic vulgarities. They do not say: “May we now engage in sexual activity?” In much the same way, they do not use medical coinages when referring to basic bodily functions. People do not say: “I must defecate now.” Latin does not tell the same story as German. Every English speaker knows that “shit” is a more honest word than “defecate.” Yet it ruffles feathers precisely because it so honestly describes “a coarse bodily function.” “Defecate” distances the listener from the body. That is why it is permissible to broadcast “defecate” during a daytime radio show, but not “shit.” The same reasoning should apply to “sex;” it is a medical coinage that distances the listener from the honest truth about sexual contact between human beings. In this case, however, the usual reasoning does not apply.

Why the inconsistency here? You would think that using the word “sex” instead of its coarse Germanic cousins would satisfy the decency police. After all, it purifies the language from uncomfortable honesty. “Sex” inevitably will offend fewer prudes than “fuck,” even though both words refer to precisely the same activity. But in this case, the censors bleeped out “sex,” too. In a way, I pity Jeremih. He tried his best to write a sensual song without using “traditional vulgarities” because he knew those words would be censored. Yet despite his efforts to use satisfactory words, the censors muffled him anyway.

I can only explain this new hostility toward the word “sex” by positing that popular morality does not like sexual conduct in the abstract. Although doctors created the word “sex” to make it easier to discuss sexual conduct without using uncomfortable Germanic vulgarities, apparently the subterfuge isn’t working anymore. The subject matter is apparently so uncomfortable that even Latin circumlocution can no longer suppress the shame. What can explain this if not a profound discomfort with anything concerning sexual contact between human beings? The word “sex” was supposed to disguise the raw, bodily truth about sexual conduct. It is deliberately uncolorful, undescriptive and unmemorable. But now, it is just as bad as the subject matter it was intended to conceal.

This is not just censorship. It is sloppy, incompetent censorship. A good censor has consistent reasons for suppressing certain words. For thirty years, censors at the F.C.C. consistently applied the “traditional vulgarity” test to determine whether a word “could be heard” on the airwaves. That test protected young ears from “overly honest descriptions” about sex and bodily function while preserving some “decorum” during daytime broadcasts. The test was exquisitely formal and categorical: Either the word was on the “dirty words” list or it was not. But now, the F.C.C. has scrapped the categorical approach. “Sex” was never on a “dirty words” list; it is a euphemism calculated to avoid using a word on that list. Yet now it is just as bad as the words it was intended to circumvent.

This is censorship by moral fiat, not reasoned analysis. I argue that such an approach disparages government’s obligation under the First Amendment to “make no law…abridging the freedom of speech.” The Supreme Court has steadily eroded our right to speak as we please under the Constitution. But it has nonetheless always reminded government that it cannot drive certain words from discourse without compelling justifications based in reason. See, e.g, Cohen v. California, 403 U.S. 15 (1971). The Court said that driving “traditionally vulgar words” from discourse could be justified because it was important to “protect children” and “unwilling listeners” from coarse language. F.C.C. v. Pacifica, 438 U.S. 726, 748-750 (1978). But it never said anything about words that are not “traditionally vulgar,” “shocking” or “coarse.” Viewed linguistically, the word “sex” is neither vulgar nor coarse. It is not “shocking,” either. In fact, it is supposed to take the “shock” out of traditionally “vulgar” expressions. Its capacity to give offense lies solely in the subject matter to which it refers, not the honest tone in which it describes the subject matter. By any test ever used to judge “decency” under the First Amendment, “sex” clearly passes. It is therefore shocking that the F.C.C. now decides to rewrite the law to censor a word that violates no legal standard.

If we allow the F.C.C. to drive the word “sex” from discourse, how are we supposed to “properly” talk about sex? What about shows like “Sex in the City” or songs like “Sexual Healing?” Those titles contain the word “sex.” What about a broadcast discussing “sexually transmitted diseases” or “sex therapy?” What about the countless advertisements for products addressing “sexual dysfunction” and “normal sex lives?”

In short, the word “sex” has evolved into an “acceptably neutral” means to express human sexuality without offending the decency police. We rely on it to discuss a profoundly important aspect of our lives. If it suddenly becomes as “bad” as the other “dirty words,” how are we supposed to discuss it? This may sound extreme, but we are on that path. The F.C.C. censored the word “sex” in Jeremih’s song. For all concerns and purposes, government decided that we should not hear the word because it was somehow “bad” or “offensive.” Yet “sex” is not a “bad word.” It was invented in order not to give offense. It is ironic that authorities now seek to suppress a euphemism.

I strongly resent any government attempt to control language. Our Constitution grants American citizens a broad right to speak freely. We should only tolerate restrictions on our language for the most compelling reasons. Moral awkwardness about sex does not even remotely rise to that level. Yet if we do not express our disapproval about censorship when it happens, we tacitly certify government’s power to regulate our language. That is why it is important to oppose censorship whenever it appears. “Birthday Sex” may be stupid, juvenile and absurd. But if we don’t say something to oppose government’s attempt to outlaw a perfectly legitimate word in our language, we empower government to take even more steps to muzzle us. In this case, government has applied its own moral queasiness to suppress a neutral word we all have a right to use. Moral queasiness is no justification for ignoring the First Amendment, no matter how many supersensitive mothers call to complain.

America has deep and fundamental social problems with sex. But those problems should not be allowed to impact our rights under the First Amendment. Censorship should worry us all, no matter where it appears. Our language existed before the Constitution and before the government. It is ours. As long as we do not use it to injure others or foment violence, government has no right to trespass against it. When government targets our language, we all lose expressive possibilities. Without expressive possibilities, we do not truly enjoy our rights as individuals. That is why I detest ungrounded censorship. It is not just an attack on the speaker’s expressive powers. It is an attack on us all.

PUNISHING "BAD WORDS" : MORALITY, JUDGMENT AND THE FIRST AMENDMENT

OESTERHOUDT STRIKES

I like May and June because they are the months in which the Supreme Court issues its most contentious opinions. This not only invigorates my critical spirit; it also gives me plentiful fodder for satire. After all, with a bitter conservative majority on the bench determined to buck Democratic control in Washington, I expect especially rancorous and divisive opinions this year. I have often written that I have lost much faith in the Supreme Court. In recent years, it appears to me that the Justices merely translate their own political beliefs into “opinion-speak,” then try to fool their readers into thinking that they actually made principled decisions. Although I have greater contempt for conservative justices than liberal ones, both sides are guilty. Doctrines that avoid questions altogether—like standing, political question and “constitutional avoidance”—typically arise when the prevailing side uses it to win the case. For example, Justice Scalia may extol “judicial restraint” by “deciding only the statutory question” if the statutory question will lead to conservative victory. But when conservative victory depends on “ignoring the statutory question” and interpreting the Constitution, all his “restraint” rhetoric goes out the window. At the same time, the liberals will argue “restraint” when the conservatives interpret the Constitution, and they will interpret the Constitution when the conservatives argue “restraint.” It is pitifully predictable. It is pitifully political. In short, the Supreme Court has become expedient. They merely dress up their prejudices and subjective inclinations in perplexing jargon. But prejudices and subjective inclinations they remain.

I find this disheartening because I truly believe that the Constitution stands for something greater than ourselves. When justices infuse their own foibles and political judgments into questions involving lofty principles such as the “freedom of speech” or “Equal Protection,” they forget what the Constitution really means. In my view, “constitution” is a good word. It brings to mind abstract freedom, liberty, justice, rights, humanity, goodness and compassion. I think most people share that impression. Even R&B King James Brown echoed this “positive” impression about the Constitution in his 1971 recording “Get Up, Get Into, Get Involved” when he sang: “We don’t need Revolution/ We Got to have Constitution/ We don’t need sorry fools/ We got to have better schools.” Revolution of the Mind Album (1971). Mr. Brown thought that the Constitution represented America’s great solution to burning social problems. In his view, we did not need revolution because the Constitution already provided us all the liberty and justice we need. And he equated the Constitution with “better schools.” Schools are good. In other words, the Constitution, too, means something good. It is so good that we do not need to revolt against our government. In the popular view, the Constitution is good. It stands for all the great ideals that Americans think represent America: justice, equality, freedom, etc., etc.

At least, this is what people believe. If they went to law school and read some Supreme Court cases, they would discover the sad truth that our Constitution does not always lead to justice. While the Constitution theoretically offers America a path to justice, more often it operates simply as a “governing document” that provides for “basic peace, security and stable commerce.” True, the Constitution guarantees individual rights against governmental interference. But rights are hazardous. If the people have too many rights, the government could not get anything done. Recognizing this, the Supreme Court has done much to curtail the “majestic generalities” contained in constitutional language. For example, while the Fourteenth Amendment, § 1 reads: “No State shall…deny to any person within its jurisdiction the equal protection of the laws,” this does not literally mean that States must treat everyone equally. Indeed, the Supreme Court has effectively eviscerated this hopeful-sounding language by allowing States and the Federal government to make whatever legal distinctions they wish, provided they can show that the distinction “rationally relates” to a “permissible State interest.” See, e.g., Railroad Retirement Board v. Fritz, 449 U.S. 166, 174-176 (1980). Sometimes the State must show greater justifications. But the point is that constitutional language does not mean exactly what it says, no matter how nice it looks. The Supreme Court limits it until the original language becomes a virtual mockery unto itself. Nonetheless, most Americans do not know about Supreme Court decisions. They cling to the idea that the Constitution is good. They continue to think it stands for liberty and justice.

Consider the First Amendment. I deeply care about the First Amendment, especially its protection for “free speech” (“Congress shall make no law…abridging the freedom of speech, or of the press…). U.S. Const. Amd. I. The First Amendment has assumed mythical status in the American value system. After all, what would “freedom” mean if we could not speak out on issues without fear of governmental sanction? How could we claim “liberty” about anything if our own government could punish us for speaking our minds? What would individuality mean if the State could punish individual expression? To my mind, “freedom of speech” is my core liberty. Without it, I could not express my own ideas. I could not challenge, criticize, satirize or lampoon my government. Perhaps I could, but I may go to prison for it. Yet that would be quintessentially “un-American,” wouldn’t it? After all, Americans think that they have the right to criticize the government and to speak their minds on virtually any issue. That’s what makes us “free.” According to this common understanding, the First Amendment stands for much more than the freedom to say things. It stands also for the freedom to think for ourselves and to have a conscience, even if our thoughts cause tension with others. To my mind, the First Amendment is a glowing beacon of liberty in otherwise cold and remorseless legal world. It is my shelter to be who I am, and to say what I think, even if it is not “appropriate,” “decent,” “moral,” “just,” or “appetizing.” That is breathtaking liberty. And that is why people think that the Constitution is “good.” After all, if it stands for such wonderful rights, how could it be bad?

But the First Amendment has not escaped the Supreme Court’s pruning shears. While the Court sometimes strengthens the First Amendment and sings praises to the fundamental liberty it guarantees (see, e.g, New York Times v. Sullivan, 376 U.S. 254 (1964)), more often it steps in to “put a sock” in speakers’ mouths. Especially in recent decades, true “freedom of speech” has been whittled down into an illusory guarantee, in much the same way the “equality principle” housed in the Fourteenth Amendment has been qualified into oblivion. How could this happen? How could the bastion of our rights as individual citizens be interpreted away like this? Easily: Because the Supreme Court is a political institution. Justices in our times do not think about liberty in the abstract. They think about how they can disguise political judgment as constitutional law. That approach has savaged our constitutional liberties. Not only can we not speak as freely as we could in times past, but we are also not as secure in our persons, property and dignity as we once were. It is much easier for the police to wring confessions and search homes today than it was in 1970. Through an endless series of fact-based exceptions, qualifications, explanations and limitations, the Supreme Court has stripped our liberties, rendering them technical shibboleths with no romantic appeal at all. Our “freedom of speech” is no exception to this trend.

When the Supreme Court takes a wrecking ball to the First Amendment, I get upset. When justices impinge upon our liberty to speak by disguising their own moral and political prejudices in fancy legalese, my blood boils. Recently, the Court broke out the demolition equipment again in the case F.C.C. v. Fox Television Stations, Inc., 556 U.S. ___ (2009). Here, the Court revisited the “indecency in broadcasting debate” that began with the classic case F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). In essence, Pacifica held—without precedent—that “indecent, nonobscene” language in broadcasting could be banned because it had a “unique power to offend,” it was “uniquely pervasive” and it was “uniquely accessible to children.” Even though there was no constitutional basis to ban such “nonobscene” speech outright, the Court created a special “category” for so-called “indecent speech” that might “injure a listener who does not want to hear it” because it had “lower value” than other protected speech. In the usual case, the First Amendment’s free speech guarantee prohibits government from regulating speech based merely on its “content” or “message.” Rather, the government may only regulate speech based on content if it fits a “traditionally proscribable category,” such as “fighting words,” “obscenity,” “incitement to riot,” or “libel.” In Pacifica, the Court admitted that the broadcast at issue was not obscene—it merely “deliberately and repeatedly” referenced “sexual and excretory functions and organs.” Nonetheless, based on “moral considerations” and “context,” it decided that government could fine a broadcaster for crossing the “decency line.” After all, according to the Court, such language has “low value.” In essence, the Court made a moral judgment. It concluded that certain otherwise constitutionally protected speech has “lower value” than other speech. Because the Court found the broadcast “patently offensive” on moral grounds, it fined the broadcaster.

Liberty took a significant hit in Pacifica. In the ensuing decades, the Federal Communications Commission began policing broadcasts for “indecent speech” that could potentially “offend an unwilling listener” with “sexual or excretory” language. Over the years, the Commission developed a torturous, morality-laden common law by which it analyzed whether particular words were “patently offensive,” looking to such details as whether the “words were deliberate or repeated,” whether they “literally referred to sexual or excretory function” and whether “they merely were fleeting, expletive uses” that would not offend as many people. In other words, it would be “indecent” to broadcast: “I need to take a shit” because that “literally refers to excretory function, but it would not be indecent to broadcast: “Oh shit! I’m on fire!” because that is merely a fleeting, expletive “non-literal” use of the word. Under this labyrinthine common law, referring to real excrement was “indecent,” “disgusting” and “offensive.” But merely making an “exclamation” was not.

In the Fox case, Justice Scalia tightened the “indecency” noose even further. In a predictable 5-4 decision (conservatives Roberts, Scalia, Thomas, Alito and Kennedy v. liberals Stevens, Souter, Breyer and Ginsburg), the Court concluded that the Commission could fine Fox for broadcasting the words “fuck” and “shit” during the Billboard Music Awards in 2003. Cher uttered her bad word when she lashed out at her critics: “I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. Fuck ‘em.” See slip opinion at p. 6. Paris Hilton and Nicole Richie uttered their bad words with a joke about “cleaning cow shit from a Prada bag; it’s not that fucking simple.” Id. The Commission said that Fox violated its rules prohibiting “indecent language” on the airwaves. See, e.g., 18 U.S.C. § 1464. In the Commission’s view, even “fleeting, non-literal” “bad words” could be “patently offensive,” despite a prior rule to the contrary. The Board reasoned that the word “fuck” was always offensive “because that word has an inherently sexual connotation” and “[it] is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language.” Id. at p. 7. Why exactly is “fuck” so offensive? According to the Commission: “Because it invariably evokes a coarse sexual image.” Id. And why was Cher’s “fuck ‘em” comment so offensive? According to the Commission: “Because she metaphorically suggested a sexual act as a means of expressing hostility to her critics.” Id. Justice Scalia implicitly agreed with this linguistic analysis, adopting the Commission’s reasoning: “An expletive’s power to offend derives from its sexual or excretory meaning.” Id. at p. 8.

Justice Scalia proceeded to expressly reject a constitutional challenge to the Commission’s action, choosing instead to review the case as “an administrative matter” under the Administrative Procedure Act, 5 U.S.C. § 551. See slip opinion at pp. 9-12. Under that deferential standard, the broadcasters were doomed to fail. The Commission merely had to show that its reasons for adopting the new “no expletive” policy were not “arbitrary or capricious.” Id. at p. 9. To meet that standard, the Commission simply had to say that it explained its reasons and believed them. Id. at p. 11. Justice Scalia even refused to apply a somewhat “heightened review” to the Commission’s action because its “policy change” did not “contradict any previous factual findings,” nor did the old policy engender “serious reliance interests.” Id. at pp. 11-12. After all, this was merely a case involving “bad words.” There was no need to bring up the First Amendment.

This reasoning outraged me because it so dismissively rejected the constitutional implications inherent in the Commission’s action. In my view, no matter how offensive a word may be, it is still “speech,” and if government has a problem with the content, it must proffer a very compelling justification to suppress it. See United States v. O’Brien, 391 U.S. 367 (1968). Worse, the Court implicitly adopted the Commission’s rhetoric that a word’s “power to offend” flows from “sexual or excretory meaning.” This is not constitutional law, nor even detached legal analysis. This is pure value judgment. According to this logic, any word that has a “sexual or excretory meaning” has “the power to offend.” It follows, then, that not just “fuck” or “shit” would be “offensive,” but also “coitus,” “intercourse,” “copulation,” “defecate” or “poopie.” All those words have “sexual or excretory meaning,” and thus—according to this preposterous analysis— “the power to offend.” What does this moral oversensitivity have to do with the liberty to speak and use language? To me, this is Puritanism masquerading as constitutional analysis. And value-laden Puritanism is no basis upon which to make decisions that impact every American’s rights under the First Amendment.

Under the Court’s reasoning, Cher could have said: “Intercourse my critics” and the Court would still have approved a fine for “indecent speech.” Nicole Richie could have said: “Have you ever tried to clean cow dung from a Prada bag? It’s not so copulatingly simple” and she still would have used words that “have the power to offend” because they have “sexual and excretory meaning.” Further, the Court agreed that the phrase “Fuck ‘em” was “bad” and “offensive” because it “metaphorically suggested a sexual act as means of expressing hostility to [Cher’s] critics.” It also said that the word “fuck” “invariably evokes a coarse sexual image.” This is pure rubbish. Anyone with a rudimentary understanding of English slang knows that the word “fuck” is immensely versatile. It is not always sexual, nor does it always “evoke a sexual act or image.” Dictionary.com provides the following definition: “Fuck (verb used with object): 2. slang to treat unfairly or harshly.” Cher used the verb in exactly this sense. She expressed harsh contempt for her critics. It had nothing to do with sex. In that light, the Commission’s linguistic reasoning is demonstrably false and exaggerated.

I find these matters critically important, even if they involve only “vulgar speech.” Although the Commission identified “fuck” as a “bad word” because it was “one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language,” I defend language for its own sake. I like knowing that I can use whatever word I please to describe my own thoughts and impressions. Words are not evil in themselves, nor should we ban them because they engender moral revulsion in faint hearts. If we entrust governmental agents to screen out certain words based on their own, regressive moral sensibilities, we cede our individual liberty to their judgments. And if the Commission and the Supreme Court represent the “standard” for “decency,” we can expect to cede a great deal more.

I often criticize dominant morality because it is not based in reason. Rather, morality derives from age-old intuitions concerning a general societal belief that something is “disgusting,” “revolting,” and thus “blameworthy” and “inappropriate.” Yet the Constitution and individual rights should be based in reason, not intuition. The Constitution is not a moral treatise. But the Fox case, as well as the whole “indecency doctrine” in general, make morality the entire basis for constitutional decisionmaking. Reason did not influence the Commission’s rationale for banning “offensive” speech. Rather, intuitive moral revulsion influenced the rationale. Some overly moral tightass got uncomfortable when he heard the word “shit,” then prevailed upon his fellow overly moral tightass friends in power to ban the word. The Supreme Court majority in Fox agreed in principle with these overly moral tightasses, even if it disguised its moral approval with vacuous legal nonsense about “standards of review” and the “Administrative Procedure Act.” These legal mechanisms represent a mere technical subterfuge for brazen moralizing. And Justice Scalia’s refusal to address the constitutional dimension to “indecency bans” reflects his own moral belief that “indecent speech” is “bad” because it is “disgusting.” Again, this is not constitutional analysis. It is value judgment.

Reason should guide the United States Supreme Court, not morality. In many cases, reason and morality can coexist. But when it comes to constitutional liberty, morality must give way to the abstract guarantees to which citizens are entitled. Morality is intensely subjective. It plays upon emotion and passion. Indeed, any belief system that draws upon disgust necessarily disparages reason. As such, any so-called “constitutional jurist” must handle morality with the greatest care when addressing constitutional questions. Morality has the power to introduce concerns that have no place in the pantheon of constitutional liberty. The First Amendment contains positive abstractions that favor the individual and his expression. Morality, on the other hand, provides a basis to judge other individuals and their expression “revolting.” A prudent jurist will recognize that tension and rule for abstraction over morality, even if he finds the individual’s expression “disgusting.” In the Fox case, the Court should have addressed the constitutional dimension to the Commission’s morally charged rule-making. When morality treads too harshly on core constitutional guarantees, a conscientious jurist must address the constitutional issues. The fact that the Court here did not even broach the First Amendment bespeaks its modern-day malaise—and even cowardice.

If we truly are a “Nation of laws,” our Supreme Court would disapprove the “indecency doctrine.” Law dictates that only certain “speech categories” may be banned. “Indecency” is not one of them. The Court allowed morality to tarnish its respect for liberty. Pacifica was a mistake. Fox perpetuates its error. Until the Court recognizes that liberty must win over morality, we can expect more absurdities in the future, as well as less freedom to speak.

And I don’t give a damn about the children. Parents should start paying attention to what their children are watching. I cannot bear the fashionable rhetoric that justifies reducing constitutional liberties to protect some fanciful child. Our Constitution is timeless. Our children are not. I would rather have my liberty than overprotected children who will wind up speaking vulgarities anyway. It is a harsh world. “Bad words” will reach them some day, somehow.