Freedom of Speech...Just Watch What You Say
Niaz Kasravi and A. Rafik Mohamed
Issue #63, April 2003
The nefarious terrorist attacks on the World Trade Center in New York City and the Pentagon in Washington, D.C. triggered a series of changes that would, at least in the short term, significantly alter American society. First, it was clear that we were going to be militarily engaged with some country, regime, organization, or all of the above in the not-so-distant future. Second, our sense of national vulnerability and anxiety, which on September 10 was seemingly all but absent, was about to be heightened to levels unseen in most of our lifetimes. And finally, certain "rights" that we presumably have in official times of peace and profess to be inalienable were going to be called into question by government, corporations, and private citizens alike. The purpose of this article is to discuss this last aspect of our national crisis. Specifically, our focus is on our "right" to free speech, the extent to which we believe it to be a fundamental freedom, and the degree to which it in many respects has historically been and continues to be an idealized fiction, both legally and socially.
In order to really understand the life of free speech, it might be useful to return to the "simpler" times of the 1970s. In the middle of this decade perhaps best known for disco, bellbottoms, and Nixon, ABC TV began airing School House Rocks. Prompted in part by a bout of patriotic fever spawned by the bicentennial, School House Rocks brought to the viewing public a series of short cartoons that taught a generation of American kids about government, history, math, grammar, and science. In one of these cartoons, an anxiety-ridden little scroll of paper is dragged through the labyrinthine legislative process by which a bill becomes law. As the now infamous "Bill" described it, "some folks back home decided they wanted a law passed so they called their local congressman." This basic civics lesson and others in the School House arsenal effectively taught youth that, through our system of representative democracy, all of us have an equal say in politics. It would seem that this lesson has been well internalized by many Americans, including the President. But, virtually everyone involved in the business of scholarship knows this has never been true in the United States. And this is certainly not the case today, as evidenced by the campaign finance reform debate and the idea that large corporate contributions to political parties provide those of means undue access to government. Simply stated, some Americans are better "represented" than others. Nowhere, perhaps, is this representative void more pronounced than in the arena of free speech.
It is safe to say that virtually every adult American lays claim to freedom of speech and views it as one of the most axiomatic guarantees afforded us in our society. Even today, a year and a half after the September 11 attacks, as we still have troops in Afghanistan, and are in the midst of an invasion of Iraq, most citizens of the United States would probably prioritize their freedom of speech above all other personal freedoms, with the possible exception of freedom of religion. As David Kairys defines it in The Politics of Law, in its most basic form, free speech as we know it consists of the ability, without restraint, punishment, or content-based limitation, to criticize government and public officials and private institutions and individuals; to express one's view in public places; and to associate with others for political purposes. To an extent, these visions of what free speech ideally means are not that far from how it has been defined through sociolegal discourse and, most importantly, by the courts. Judicial interpretations of the First Amendment and review of laws limiting free speech have allowed government regulation only over a very limited class of expressions generally understood to include obscenity, so-called fighting words, and libel.
The free speech discussion often stops right here, however, simply outlining the limited areas in which governmental infringement of speech is tolerated by the courts. All other speech, we are led to believe, can be carried out without repercussion. We proud Americans typically fail to realize that current interpretations of the First Amendment and manifestations of our free speech rights are relatively recent phenomena. Despite its promise in the US Constitution and more recent carvings-out by the courts, this idea of freedom of speech did not exist in practice prior to the labor movement of the early/mid twentieth century. As Lawrence M. Friedman suggests in A History of American Law, it is foolish to imagine that legal words, concepts, and phrases such as "free speech" have an important life of their own. Instead, their meanings flutter over time in response to changes in conventional morality, economic interests, and other social forces. Essentially, the idea of a timeworn right of free speech is little more than an idealized fiction — a nostalgic clinging to a notion that has never been. And, as we are seeing in the wake of September 11, truly free speech is an idea that quite possibly still has not come to pass.
Furthermore, and contrary to what our little friend "Bill" might suggest, changes in the right of free speech did not come as the result of purely democratic processes. At the time of its ratification, the "We" in the Constitution's "We the People" excluded virtually everyone except the upper-class, white, landholding gentry. The Constitution protected "the people" from government tyranny, but some people, notably the relatively elite, mattered more than others. Thus, just as freedom of religion has been largely held in practice to mean the free exercise of most forms of Christianity, freedom of speech has, in practice, endured the same fate. As evidenced by those present during the drafting of the Bill of Rights, "the people" with the economic means to dominate politics have always been able to speak freely, while minority voices critical of the political and economic system have consistently been squelched by leadership.
Obviously this notion of unequal representation and influence on government is nothing new. For example, in his theory of democratic elitism, Max Weber reasoned that direct democracy is impossible in large-scale societies like the United States. Representative multiparty democracies help defend against arbitrary decision making by leadership and against the monopolization of power by any one group. However, Weber conceded, even in these systems, rule by elites is inevitable. Our best hope, according to Weber, is that ruling elites will enact policy that is consistent with the collective interests of the rest of us relatively voiceless masses. Building on Weber's theory, economist Joseph Schumpeter more optimistically, but still cautiously, argued that modern democracies only offer voters the opportunity to replace one political leader or party with another. Because of this, Schumpeter deduced, politicians are at least minimally responsive to the demands of the electorate as they need to secure votes to stay in office.
During both Weber's and Schumpeter's time, the late nineteenth and early twentieth centuries, economically prosperous people certainly had a hand in politics. However, these two perhaps never foresaw a time when the ruling elite would choose to almost completely shape policy from the outsides of formal government. Instead of directly assuming positions of government power and vying for votes, as was the historical norm in the United States, the elite would use their financial wherewithal to externally shape legislative, executive, and judicial decisions in their interests. Typically, these interests involve the preservation of a status quo that secured to them economic windfalls at the expense of the populous. Thus, the electorate to whom politicians are most responsive in contemporary times are those very same types of people who used to control government from the inside.
Beginning in the mid-to-late twentieth century, what the increasingly powerful corporate elite effectively happened upon was a backdoor to American politics that offered them all the benefits of leadership without the hassle of bureaucratic red tape. The beauty of this backdoor approach was, because of their non-governmental status, the corporate elite could not only control politics through their enormous financial resources, they could also place limitations on the actions of others without being beholden to an electorate or running afoul of the political constraints and constitutional safeguards that typically reign in formal government actions. Thus, the corporate elite have now taken on a quasi-governmental status without the political accountability that goes with formal governance. What is even more disconcerting is that they also control the electronic and print media — the primary outlets through which we may "freely" exercise speech that would be potentially critical of the leadership that their campaign contributions elected and the leadership that subsequently allows them to run amok.
In our technology-driven nation of 280 million people, speech that threatens governmental policy and the system's legitimacy are no longer going to come from a disenchanted reverend in the village square. In order to muster up the public interest necessary to trigger a viable challenge to the status quo in today's society, access to mass media is an absolute must. Toward preventing the possibility of such challenges, in exchange for seemingly unfettered and unpoliced access to outrageous and increasingly disparate material rewards, corporate elites now quietly police many of those areas where the formal government is constitutionally hindered from restricting public access. This relatively new corporate backdoor has ensured is that no one will be able to, without restraint, challenge or be significantly critical of government unless it is in corporate interests to have this voice heard.
Among these new domains of corporate power is that of policing "dangerous" speech. As evidenced by the swift, certain, and severe backlash directed at those critical of our foreign and domestic policies in the wake of September 11, it is now corporate America leading the charge to silence political dissidents, not the government. Certainly, the government has received some limited criticism for its seeming suspension of due process for those accused or suspected of terrorism, but the government did not do much to silence these critics. Rather, corporate America has moved much more aggressively than the government to mute those openly critical of our response to the terrorist attacks. Like the politicians who personally opposed the draconian drug laws enacted in the 1980s but who voted in favor of these laws for fear of seeming soft on crime, corporate officials seem to feel that it would be financial suicide to allow rational voices critical of US policy to grace the airwaves.
The plight of Bill Maher drives this point home. For those unfamiliar with his work, Maher is a former stand-up comedian turned professional political satirist and talk show host. His late-night show, Politically Incorrect, originally part of the repertoire of cable TV's Comedy Central, was aired by ABC affiliates. From its inception, the show's creed was a critical but humorous discussion of politics. The show appeared to be pushing along fine — a seemingly wise investment. However, on September 17, 2001, less than one week after the attacks, and in response to another panelist on the program, on-air Maher commented:
But also we should [blame ourselves for other nations' animosity toward the United States] — we have been the cowards lobbing cruise missiles from 2,000 miles away. That's cowardly. Staying in the airplane when it hits the building, say what you want about it, it's not cowardly. You're right.
Needless to say, news of Maher's comment spread like summer wildfires and, at the highest point of post-terrorism patriotic fervor, elicited widespread, largely negative high-profile response. The day after Maher's comment White House spokesman Ari Fleisher lamented, "There are reminders to all Americans that they need to watch what they do, and this is not a time for remarks like that; there never is." Fleisher later implied that Maher and his program were just as reprehensible as the terrorists who attacked the World Trade Center. While Fleisher's official reaction is noteworthy in and of itself, in reality it lacked teeth. Fleisher's disdain on behalf of the White House was duly noted; however, it did little to affect the fate of the show.
Of far greater significance was the equally immediate and considerably more debilitating corporate response to Maher's commentary. With the complete support of the network, local affiliates, including Washington, D.C.'s WJLA affiliate, presumably afraid to offend their viewers with anything too critical of government in this time of crisis, yanked Politically Incorrect from the airwaves. Advertisers, not wanting their products to be associated with anything that could even marginally be construed as unpatriotic in this time of crisis, threatened to pull their sponsorship from Disney-owned ABC and its affiliates if Politically Incorrect was not taken off of the air. When asked about Maher's right to express himself freely, network executives and advertisers alike unabashedly stated that profits and loyalty to corporate shareholders superceded any interest they might have in protecting free speech.
Here we see the corporate backdoor to political hegemony in all of its splendor. For exercising what he thought to be his First Amendment right, without restraint, punishment, or content-based limitation, to criticize government and public officials, Bill Maher and Politically Incorrect were pulled from the airwaves. Ironically, last year ABC once again made room for School House Rocks in their Saturday morning lineup, initiating the minds of another generation on the principles of democracy while doing its own part to limit free speech.
What happens when it is no longer government who attempts to deny individuals' rights of free speech? What happens when corporate America — by virtually every account as influential in American politics as any branch of government — skirts the traditional routes of lobbying for political influence and more or less directly takes on the task of limiting our constitutional right to speak freely and to be critical of government? The short answer to this question is, as evidenced in the aftermath of September 11, "nothing." The Constitution only protects us against state action — improper governmental intrusions into our lives. When corporate elites curtail our ability to speak freely, regardless of their quasi-governmental status, the US Constitution is impotent to protect us.
Corporate Censorship and Michael Moore
Does this mean we are without hope or indemnity against the tyranny of the new corporate government? Not necessarily. Another example whose outcome is perhaps more optimistic also came in the aftermath the September 11 drama. Author and filmmaker Michael Moore was scheduled to release his most recent book, Stupid White Men...And Other Sorry Excuses for the State of the Nation, in the days immediately following September 11. Moore's book offers a critical look at the present Bush administration and politics in general. Had the attacks never happened, the book would probably still have been a best-seller, but its political significance would more than likely have been negligible and written off by the powers that be as the rantings of a disgruntled leftist. However, in the wake of the attacks, HarperCollins, the book's publisher, apparently felt it too risky for profits in a hyper-patriot social climate to ship the book as it was written. Despite the fact they had already produced thousands of copies, the publishers refused to release the book without substantial rewrites. The short of the story is Moore refused to rewrite "a single word," HarperCollins opted to "pulp" the book instead of releasing it in its originally approved form, and after a substantial battle between Moore and the publishing giant, David amazingly slew Goliath by getting the book released un-re-edited.
Stupid White Men was ultimately released, but not because the publishing house felt remorse for curtailing Moore's freedom of speech. Rather, during the back and forth, Moore mustered the nationwide support of librarian organizations that got wind of the censorship, were immediately incensed, and reacted with threats of their own to HarperCollins. The term "librarians" often captures images of mousy and sensibly dressed bookworms rather than activists and people of political consequence. But, contrary to this stereotype, librarians have considerable clout with publishers as, through their book orders for library systems, they are responsible for a significant share of publisher revenues. Weighing the costs of censoring Moore's pre-9/11 critique of government against the costs of alienating the librarian community, apparently HarperCollins saw it fit to acquiesce. Thus, by default, Moore's freedom of speech was eventually recognized.
What was once a concern about government tyranny and censorship of "suspicious opinions" has become a generally accepted pattern of private sector, quasi-governmental abridgement of free speech. Since we are taught from the days of eating Froot Loops and watching School House Rocks that the profit motive and protections for business are desirable in the capitalist American marketplace, we rarely question such censorship. Instead, we see it as just and simply them, the corporate elite, exercising their rights to free speech. So, free speech gets turned completely on its head, from something that most Americans believe to be a protection of their right to criticize government and otherwise act freely in the United States to how it actually plays itself out in contemporary politics, with the vast majority of American voices remaining marginalized and by silencing in the interest of corporate free speech those few voices of dissent that slip through the cracks. After all, who owns the means of communication? Unfortunately for the rest of us, this behavior is arguably as insidious as outright government censorship with the effect of taking us back to the days when our speech was not yet free. All the while, the federal government has the luxury of sitting back and reaping the benefits of unfettered and unquestioned behavior. In America we still have freedom of speech — just watch what you say.
Niaz Kasravi received her doctorate in Criminology, Law and Society from the University of California, Irvine. She currently conducts research on civil liberties and racial profiling for Amnesty International's US Domestic Human Rights Program. A. Rafik Mohamed is an assistant professor of sociology at the University of San Diego. He is currently writing a book on race, masculinity, and resistance in urban America.
Credit: Second image courtesy Progressive Austin.