When money and hatred undermine the First Amendment
By Martin A. Lee
The United States is mired in a full-blown First Amendment funk, and we the
people are getting a raw deal.
Last month a federal appeals court in San Francisco ruled in favor of
antiabortion extremists who run a Web site called the Nuremberg Files. The
Web site describes abortion providers as "Satan's food source" and features
Wild West style "wanted" posters of doctors who terminate pregnancies, along
with their private addresses, the license plate numbers of their cars, and
Over the last ten years, seven abortion doctors have been killed by far
right fanatics linked to the shadowy Army of God, a loose-knit underground
network. Three of the slain physicians had appeared on the Web site's wanted
posters. There were also 17 attempted murders of abortion providers and
dozens of bombed women's clinics during this period. For every doctor who
was killed, the Nuremberg Files placed a cross through his name, and injured
physicians were denoted accordingly.
In effect, the court determined that the Web site operators have a
constitutional right to publish what amounts to a hit list of doctors who
perform legal abortions. "If their statements merely encouraged unrelated
terrorists, then their words are protected by the First Amendment," declared
the written opinion of Judge Alex Kozinski. "Political speech may not be
punished just because it makes it more likely that someone will be harmed at
some unknown time in the future by an unrelated third party."
For additional proof of just how skewed and outrageous official thinking has
become with respect to First Amendment rights, consider the ongoing debate
over campaign finance legislation. Opponents of campaign finance reform
claim that limits on donations to political candidates are an abridgment of
free expression. Any serious effort to liberate the electoral process from
the stultifying clutches of big money will ultimately have to contend with
the Supreme Court, which ruled 25 years ago that cash expenditures in
support of political campaigns are a form of speech that deserves virtually
unqualified First Amendment protection.
We may be in for another zinger this summer, when the Supreme Court reviews
the tobacco industry's free-speech challenge to city ordinances that ban
outdoor cigarette advertisements. Rather than enticing kids to light up,
tobacco firms insist they are merely trying to convince adult smokers to
switch brands, and, therefore, government attempts to prohibit billboard ads
for tobacco products are a violation of the First Amendment. Apparently this
specious argument resonates with Justices Scalia and Thomas, who've
indicated that they don't see a valid reason for granting less than full
constitutional protection to so-called commercial speech.
It may seem paradoxical, but as the sphere of protected speech in the United
States has expanded during the last quarter of a century, our political
culture as a whole has gotten ever more impoverished. This crucial dilemma
is obscured by uncritical free speech advocates who cloud up our telescope
on the known world with a delirium of sweeping generalities and
First Amendment fundamentalists often tout a concept lifted from the realm
of products – the much-heralded "marketplace of ideas." According to this
theory, the government must not interfere with the free flow of ideas and
opinions that compete in our fabled marketplace. Discerning citizens will
make sensible choices based on the quality and persuasiveness of the
information they consume on a regular basis. It has become an article of
faith that putting up with disagreeable viewpoints, including hate speech
and other kinds of bigotry, is the price we all must pay for living in a
democratic society. The best response to offensive ideas and bad speech –
we're told time and again – is more good speech.
The problem with the marketplace metaphor is that it bears little relation
to the way ideas actually circulate in our society. Traditional First
Amendment lore assumes there is a level playing field upon which everyone
can participate in unfettered discourse. But as Richard Goldstein has noted,
"The clash of ideas in American mass media is not a cacophony but a
hierarchy of voices." Originally, only white, male property owners were
accorded First Amendment rights under the U.S. Constitution. Poor people,
women, ethnic minorities, and other historically disenfranchised groups have
never been fully able to strut their stuff and exhibit their wares in this
hypothetical marketplace, which has been slow to cure systemic ills such as
racism and second class citizenship.
Noting that there have always been exceptions to unconditional free
expression (copyright, defamation, official secrets), an emerging school of
legal scholars is waging a frontal assault on those who equate money with
speech. Critical race theorists and innovative feminists, among others,
point to the profound power imbalances and persistent social injustices that
dim the luster of the First Amendment, the jewel of our Bill of Rights (see
The Price We Pay, an anthology edited by Laura Lederer and Richard Delgado).
Eschewing solutions that smack of government censorship, these scholars
envision a new legal paradigm, one that balances free speech imperatives and
the 14th Amendment, which calls for equal protection under the law.
Columbia law professor Kimberle Crenshaw, who coined the phrase "critical
race theory," highlights the fallacy of First Amendment absolutism by citing
a series of legal cases at the beginning of the 20th century, when the
Supreme Court decreed that laws regulating minimum wage, maximum workweek,
union organizing, and child labor were unconstitutional because they
interfered with the rights of employers and employees to freely negotiate a
contract or to look elsewhere to fulfill their needs. The Great Depression
forced the Court to retreat from this position, but not before it had struck
down legislation that barred management from imposing a 14-hour workday or
prohibiting union organizing on the grounds that such measures violated
property and contract rights. "The power differential – that employees
frequently had no choice but to agree to the employer's terms – was
irrelevant to the Court's definition of freedom," says Crenshaw.
In a similar manner, today's adversaries of campaign finance reform ignore a
glaring power differential when they treat money as speech – as if Rupert
Murdoch and a homeless African-American woman are both duly entitled and
intrinsically free to subsidize a political campaign. Presumably, they are
also both free to wear tattered clothes and sleep under bridges if they so
choose. Under the guise of protecting free speech, the Supreme Court has
once again legitimized social inequality.
Freedom of expression, especially by political and social dissidents, is
indispensable to a healthy democracy. But we would be quite naive to think
that the government is the only agency that limits speech. Most censorship
in our society is exercised privately by those who wield editorial clout at
media conglomerates. Functioning as gatekeepers, these mega-corporations
confer credibility on some people and not others, selecting who gets to be
heard and who is rendered voiceless, what information is articulated, what
needs are ignored, what visions are squandered.
Several studies by the media watch group FAIR and other researchers have
demonstrated that corporate censorship is pervasive and insidious,
discriminating against women, people of color, and public interest
viewpoints that challenge the prerogatives of commercial advertisers, media
barons, and big business in general. Yet this type of routine censorship is
generally not identified as such; nor is it subject to public
In the lopsided world of the Supreme Court, big media corporations are
somehow akin to very loud street corner orators who have just as much right
as anyone else to speak their mind. Overlooking the fact that the speaker
with the strongest amplifier may drown out other voices, the Court has
invoked the First Amendment as an alibi for the corporate suppression of
speech and as a justification for reinforcing enormous concentrations of
Apparently, the Court is incapable of telling the difference between
government efforts to stifle expression and necessary measures to curtail
excessive power over any market, including the alleged marketplace of ideas.
Whereas early speech cases protected the rights of progressives and
radicals, today's speech cases "are often won by corporations, the media,
and other powerful insiders," observes University of Chicago law professor
Mary Becker. "Free speech has become a negative right, a principle that
protects the speech of those with the resources to speak, and that protects
them only from regulation by the government. Powerful private actors . . .
are free to control, suppress, and distort the speech of others and when
they do, political processes cannot redress it."
Critical race theorists go a step further, drawing attention to the
subordinating mechanisms of hate speech as well as corporate speech, both of
which promote and reinforce power disparities that cleave along racial and
gender lines. Of course, misogyny, racism, and queer-baiting can be very
lucrative for corporate entertainment empires, thanks to celebrity bigots
like Don Imus and Eminem who rake in big bucks while spewing insults about
bitches, fags, and jungle bunnies.
Commercial media stoked ethnic prejudice during the recent spy plane
confrontation between Beijing and Washington. The most egregious incident
involved two radio talk show hosts in Springfield, Illinois, who called for
the internment of Chinese-Americans in the same way that the U.S. government
locked up Japanese-Americans during World War II.
We live in a society marred by social inequalities that are to a significant
degree created and perpetuated through words and images. "In some, hate
speech inhibits the ability to be assertive; in others it produces a chronic
anxiety that becomes part of the personality, while still others are driven
to outbursts of ferocity," says Goldstein.
Critical race theorists contend that hate speech diminishes the human and
civil rights of an entire targeted group. More often than not, those who are
intimidated and silenced by hate speech are already among the people who are
least heard in the public arena due to corporate censorship and ingrained
patterns of media distortion.
Hate speech harms its victims and adversely affects all of us "by
undermining core values in our Constitution," explains Georgetown University
law professor Charles Lawrence. "One of these values is full and equal
citizenship as expressed in the Fourteenth Amendment's Equal Protection
In 1996, the Supreme Court ruled that white youths in St. Paul, Minnesota,
had a First Amendment right to burn a cross in front of a black family's
house - a decision that betrays a myopic legal bias, according to Lawrence,
in that it ignores the victims' right not to be terrorized or otherwise
harassed by racist hooligans.
Is hate speech primarily a form of discrimination that contravenes the 14th
Amendment or is it a form of free speech that should be protected by the
First Amendment? Can these two constitutional provisions be reconciled
without favoring one over the other?
We need to think about freedom of expression and its limits in a different
way, says Lawrence, who asserts: "When a husband threatens to beat his wife
the next time she contradicts him, a First Amendment injury has occurred.
When a gay basher forces gays and lesbians into the closet, he denies us all
the insight and beauty of their voices."
The silencing impact of hate speech is most extreme in cases where the
victims are made permanently voiceless. Killing an abortion provider is not
only an act of murder; it is also a crime against the First Amendment.
For the most part, civil libertarians resist the argument that hate speech
deprives people of their civil rights and should be punishable as such. This
notion is anathema to those who fear that regulating hate speech would
impair precious liberty. They would have us believe that the victims of hate
speech are able to speak out whenever they want - as if mass media were
willing to offer them equal time.
"We are asked to assume that the purveyors of hate speech and the targets of
hate speech are on the same plane," says Crenshaw, who muses that a black
family is also "free under the First Amendment to burn a cross on a white
family's lawn." Such is the loopy logic of the Supreme Court, which shrouds
the stark reality of social power in the United States while professing a
commitment to formal equality.
"The cure is more speech" may sound like a fine idea in the abstract, but it
is not always a viable response to speech that muzzles people, deepens
inequality, and undermines the robust discussion that civil libertarians
ostensibly favor. In addition to "more speech," we need genuine equality and
more empowerment throughout our society.
Martin A. Lee (email@example.com) is the author of Acid Dreams and The Beast
Reawakens, a book on neofascism. His column, Reality Bites, appears here