Search results for the tag, "Free Speech"

February 11th, 2005

The Ward Churchill Debate

Ward Churchill

A version of this blog post appeared in the Utica Observer-Dispatch on February 11, 2005, and was noted on Cox & Forkum on March 28, 2005.

HAMILTON COLLEGE, February 1, 2005— On Thursday, February 3, Ward Churchill, a Professor and Chair of Ethnic Studies at the University of Colorado at Boulder, will participate in a panel here titled “The Limits of Dissent.” That he will discuss his infamous essay, “Some People Push Back: On the Justice of Roosting Chickens”—wherein, among other bizarre indictments, he calls the civilians in the World Trade Center on 9/11 “little [Adolf] Eichmanns”—has rightly invited debate.

What troubles many the most is obviously Churchill’s ramblings on 9/11, which are odious, fatuous and sorely lack both credibility and seriousness. Indeed, in an interview in April 2004, he said it was a “no-brainer” that “more 9/11s are necessary.” Last week he declined to back off his Eichmann analogy, which evidently is one of his pet phrases. Then, in a statement on Monday, he assured us that the phrase applies “only to . . . “technicians.’”

With such apoplectic venom for America and Americans, one might think Mr. Churchill would just as fiercely champion the freedom of speech. In fact, for more than a dozen years, he has led organized protests, the last one culminating in arrest, to suppress Columbus Day parades. He reminds his followers that the First Amendment doesn’t protect outrageous forms of hate speech. Apparently, hypocrisy doesn’t bother those who thrive on it.

Yet controversy, especially in academe, is necessary, no idea is dangerous or too radical, and the best disinfectant is sunlight. The bigger issue is that it behooves institutions of higher education, particularly elite ones like Hamilton, to maintain high standards in proffering their scarce and prominent microphones. A commitment to free speech—even an absolute one—does not require a school to solicit jerks, rabble-rousers or buffoons.

This is not to say that the grievance or blowback explanation of 9/11—that it’s not who we are and what we stand for, but what we (U.S. foreign policy) does—doesn’t deserve attention. It does, as Newsweek’s Christopher Dickey argued here last semester. The point is, What suddenly makes Ward Churchill an authority on Islamic terrorism? Ditto for Churchill’s colleague, wife and fellow panelist, Natsu Taylor Saito, whose newfound expertise and lecture subject is the Patriot Act. The answer lies not in “what?” but in “whom?”

That “whom” is the Kirkland Project for the Study of Gender, Society and Culture, a faculty-led organization, well funded primarily by the dean’s office. In recent months, the K.P. has become a lightning rod for Hamilton. Its appointment of Susan Rosenberg, a terrorist turned teacher who four years ago was serving out a 58-year sentence in federal prison, brought to the Hill heretofore the most damaging publicity in its 200-year history. Granted, since controversy inheres in its role as an activist interest group, the K.P. has made waves since its founding in 1996. The evidence, however, increasingly indicates that the group courts controversy—and only one side of controversy—as an end in itself.

To be sure, Churchill was initially scheduled to lecture on Indian rights and prisons, and the change in topic and format occurred at the direction not of the K.P. but of the college president. But surely no one doubts that Churchill was invited largely because he is a leftist radical (it’s worth noting that he lacks a PhD). Similarly, the K.P. excludes topics or speakers who don’t pass that ideological litmus test.

Whether it’s an appropriate for such a group to exist on campus is, fortunately, no longer taboo, since Hamilton’s administration has appointed a faculty committee to review the “mission, programming, budget, and governance” of the Kirkland Project. Formally, the review is a routine procedure about every 10 years, but in this case it’s overdue. Whatever the ensuing recommendations, one hopes that the Board of Trustees and the Kirkland Endowment will also take this opportunity to reevaluate the use of their generosity. The college boasts too much talent to be consumed by another gratuitous scandal.

Addendum (5/7/2005): On September 11, 2002, the following words were written: “The real perpetrators [of the 9/11 attacks] are within the collapsed buildings.” The writer? Saddam Hussein. Would Ward Churchill have disagreed?

Addendum (7/9/2005): Proving that what you say is as important as how you say it, now even Fouad Ajami is on record that U.S. foreign policy—specifically, our “bargain with [Mideast] authoritarianism”—“begot us the terrors of 9/11.”

Of course, there’s no outcry over Ajami since, unlike Churchill, this professor does not need to use phrases like “little Eichmanns” to make his point.

October 7th, 2004

Tolerating Intolerance: Why Hate Speech Is Free Speech

God Hates Fags

A version of this blog post appeared in the Hamilton College Spectator in two parts, on October 7, 2004, and October 14.

Fyodor Dostoyevsky once said that we can judge a society’s virtue by its treatment of prisoners.

Likewise, we can judge a society’s freedom by its treatment of minorities. For freedom makes it safe to be unpopular; this is why the First Amendment fundamentally protects dissent. Playing the title character in the movie The American President (1995), Michael Douglas crystallizes the point: “‘You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.’”

This is of course a Tinseltown vision, familiar more from the mind of Voltaire than in daily life. What if the speaker were calling interracial marriage “a form of bestiality,” a la Matt Hale of the Creativity Movement (formerly the World Church of the Creator)?[1] What if the speaker were waving a placard that says, “God Hates Fags,” a la supporters of Jael Phelps, a candidate for city council in Topeka, Kansas?[2] What if the speaker were suggesting that “more 9/11s are necessary,” a la professor Ward Churchill?[3]

Such notions represent so-called hate speech, which critics seek to criminalize. They argue that speech is a form of social power, by which the historically dominant group, namely, male WASPs, institutionally stigmatizes and harasses the Other. In this way, mere epithets can inflict acute anguish, so that certain words become inherently abusive, intimidating and persecutory. Explains Daniel Jonah Goldhagen, a historian of the Holocaust: We should view such “verbal violence . . . as an assault in its own right, having been intended to produce profound damage—emotional, psychological, and social—to [one’s] dignity and honor.”[4] Adds law professor Charles Lawrence, “The experience of being called ‘nigger,’ ‘spic,’ ‘Jap,’ or ‘kike’ is like receiving a slap in the face.”[5]

Now, that words are never just words, critics are right. With words, a speaker can reach into your very soul, imprinting searing, permanent scars. With words, a speaker can incite individuals to insurrection or vigilantism. Words are weapons. Yet words are always just words, since the breaking of sound waves across one’s ears is qualitatively different from the breaking of a baseball bat across one’s back.[6] Put simply, sticks and stones may break my bones, but words can never truly hurt me.

Specifically, as physical acts, deeds entail consequences over which one has no volition; an engaged fist hurts, whether one wants it to or not. By contrast, one can control one’s reaction to language; to what extent a locution harms one depends ultimately on how one evaluates it.[7] After all, taking responsibility for one’s feelings distinguishes adults from adolescents. Thus, as law professor Zechariah Chafee puts it, banning hate speech “makes a man a criminal . . . because his neighbors have no self-control.”[8] Indeed, with torture chambers in Egypt, genocide in the Sudan and suicide bombing in Israel, equating words with violence is odious. As writer Jonathan Rauch notes, “Every cop or prosecutor chasing words is one fewer chasing criminals.”[9] Plus, if we want to ban speech because it inspires violence, doesn’t history demand that we start with our most beloved book—the Bible—in whose name men have conducted everything from war to inquisition to witch burnings to child abuse?[10]

Still, critics assert that hurling forth scurrilous epithets silences people. The wound is so instantaneous and intense that it disables the recipient. But the law should be neither a psychiatrist nor a babysitter; it should not promote the message, “Peter cast aspersions on Paul. Ergo, Paul is a victim.” That lesson only entails a race to the bottom of victimhood, and implies that one should lend considerable credence to the opinions of bigots. To the contrary, one should recognize that the opinions of bigots are the opinions of bigots.

Consider an incident from the spring of 2004 at Hamilton Collee, wherein one student, face to face with another, called him a “fucking nigger.” Far from cowering, the black students on campus, with the full-throated support of their white peers and faculty, reacted with zeal. Just as the American Civil Liberties Union (A.C.L.U.) predicted 10 years earlier: “[W]hen hate is out in the open, people can see the problem. Then they can organize effectively to counter bad attitudes, possibly change them, and forge solidarity against the forces of intolerance.”[11] Sure enough, with a newly formed committee, a protest, a petition, constant discussion, letters to the editor and articles in the school newspaper, this is exactly what ensued. As if stung, the community sprang into action and bottom-up, self-censorship obviated top-down, administrative censorship.

This is likewise the case outside the ivory tower, since as a practical matter, the more outrageous something is, the more publicity it attracts. Perhaps the most famous example comes from the late 1970s, when neo-Nazis attempted to march through Skokie, Illinois, home to much of Chicago’s Jewish population, many of whom had survived Hitler’s Germany. Although the village board tried to prevent the demonstration, various courts ordered that it be allowed to proceed. Of course, by this time, notoriety and counterprotests caused the Nazis to change venues. Similarly, on September 13, 2001, the Christian fundamentalists Jerry Falwell and Pat Robertson accused those who disagreed with their ideology of begetting the terrorist attacks two days earlier. Both have since lost their once-significant political clout.

Better yet, the claim of Holocaust deniers that the Auschwitz gas chambers could not have worked led to closer study, and, in 1993, research detailed their operations. Even the repeatedly qualified, recent musings about gender differences by Harvard president Larry Summers ignited a national conversation about the latest science on the subject. The lesson here is that just as democracy counterbalances factions against factions, so speech rebuts speech. And rather than try to end prejudice and dogma, we can make them socially productive.

For this reason, we should practice extreme tolerance in the face of extreme intolerance. We need not give bigots microphones, but we need to give ourselves a society where, as a 1975 Yale University report describes it, people enjoy the unfettered right to think the unthinkable, mention the unmentionable, and challenge the unchallengeable.[12] Thomas Jefferson got it exactly right upon the founding of the University of Virginia: “This institution will be based on the illimitable freedom of the human mind. For here, we are not afraid to follow truth where it may lead, nor to tolerate error so long as reason is free to combat it.”[13]

Furthermore, with laws built on analogy and precedent, even narrowly tailored restrictions lead to wider ones.[14] Indeed, the transition to tyranny invariably begins with the infringement of a given right’s least attractive practitioners—“our cultural rejects and misfits . . . our communist-agitators, our civil rights activists, our Ku Klux Klanners, our Jehovah’s Witnesses, our Larry Flynts,” as Rodney Smolla writes in Jerry Falwell v. Larry Flint (1988).[15] And since free speech rights are indivisible, the same ban Paul uses to muzzle Peter, Peter can later use to muzzle Paul. Conversely, if we tolerate hate, we can employ the First Amendment for a nobler good, to defend the speech of anti-war protesters, gay-rights activists and others fighting injustice that is graver than being called names. For example, in the 1949 case Terminiello v. Chicago, the A.C.L.U. successfully defended an ex-Catholic priest who had delivered a public address blasting “Communistic Zionistic Jew[s],” among others.[16] That precedent then formed the basis for the organization’s successful defense of civil rights demonstrators in the 1960s and 70s.[17]

And yet critics contend that since hate speech exceeds the pale of reasonable discourse, banning it fails to deprive society of anything important. As much of the Western world has recognized, people can communicate con brio sans calumny. Human history is full enough of hate; shouldn’t we try to make our day and age as hate-free as possible?

Yes, but not as a primary. As writer Andrew Sullivan explains, “In some ways, some expression of prejudice serves a useful social purpose. It lets off steam; it allows natural tensions to express themselves incrementally; it can siphon off conflict through words, rather than actions.”[18] The absence of nonviolent channels to express oneself only intensifies the natural emotion of anger, and when repression inevitably comes undone, it erupts with furious wrath. Moreover, “Verbal purity is not social change,” as one commentator puts it. [19] Speech is a consequence, not a cause of bigotry, and so it can never really change hearts and minds. (In fact, a hate speech law doesn’t even attempt the latter, since it treats as bigots words instead of people.) Rather, a government gun sends the problem underground, and makes bigots change the forms of their discrimination, not their practice of it.

Finally, consider two crimes under a hate speech law. In each, I am beaten brutally, my jaw is smashed and my skull is split in the same way. In the former my assailant calls me a “jerk”; in the latter he calls me a “dirty Jew.” Whereas assailant one receives perhaps five years incarceration, assailant two gets 10. This is unjust for three reasons. First, we usually consider conduct spurred by emotion less abhorrent than that spurred by reason. This is why courts show lenience for crimes of passion, and reserve their greatest condemnation for calculated evil; hence the distinction between first and second-degree murder. A hate speech ban reverses this axiom. Second, such a law makes two crimes out of one, levying an additional penalty for conduct that is already criminal.

Third, the sole reason assailant two does harder time is not because hate motivated him, but because his is hate directed at special groups, like Jews, blacks or gays. Hate crime, then, turns out not to address hate, but politics. For to focus on one’s ideology—regardless of how despicable that ideology is—rather than on the objective violation of a victim’s rights, politicizes the law. Observes writer Robert Tracinski, such legislation “is an attempt to import into America’s legal system a class of crimes formerly reserved only to dictatorships: political crimes.”[20]

In the end, we must make a fundamental decision: Do we want to live in a free society or not? [21] If we do, then we must recognize that the attempt to criminalize hate is not only immoral, it is also impractical. For freedom will always include hate; progress thrives in a crucible of intellectual pluralism; and democracy is not for shrinking violets. As Thomas Paine remarked, “Those who expect to reap the blessings of freedom, must, like men, undergo the fatigues of supporting it.”[22] This, too, is the view of the United States Supreme Court, which in cases like Erznoznik v. Jacksonville (1975) and Cohen v. California (1971) has ruled that however much speech offends one, one bears the burden to avert one’s attention.

What then should we do? If the difference between tolerance and toleration is eradication vs. coexistence, then, as Andrew Sullivan concludes, we would “do better as a culture and as a polity if we concentrated more on achieving the latter rather than the former.”[23]


[1] As quoted in Nicholas D. Kristof, “Hate, American Style,” New York Times, August 30, 2002.

[2] Eric Roston, “In Topeka, Hate Mongering Is a Family Affair,” Time, February 28, 2005, p. 16.

[3] Ward Churchill, Interview with Catherine Clyne, “Dismantling the Politics of Comfort,” Satya, April 2004.

[4] Daniel Jonah Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (New York: Knopf, 1996), p. 124.

[5] Charles R. Lawrence III, “If He Hollers Let Him Go: Regulating Racist Speech on Campus,” Duke Law Journal, June 1990.

[6] Stephen Hicks, “Free Speech and Postmodernism,” Navigator (Objectivist Center), October 2002.

[7] Stephen Hicks, “Free Speech and Postmodernism,” Navigator (Objectivist Center), October 2002.

[8] Zechariah Chafee Jr., Free Speech in the United States (Cambridge: Harvard University, 1941), p. 151.

[9] Jonathan Rauch, “In Defense of Prejudice,” Harper’s, May 1995.

[10] Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights (New York: Scribner, 1995), p. 258.

[11] [Unsigned], “Hate Speech on Campus,” American Civil Liberties Union, December 31, 1994.

[12] “Report of the Committee on Freedom of Expression at Yale,” Yale University, January 1975.

[13] “Quotations on the University of Virginia,” Thomas Jefferson Foundation.

[14] Eugene Volokh, “Underfire,” Rocky Mountain News (Denver), February 5, 2005.

[15] Rodney A. Smolla, Jerry Falwell v. Larry Flint: The First Amendment on Trial (Urbana: University of Illinois, 1988), p. 302.

[16] As quoted in Terminiello v. Chicago, 337 U.S. 1 (1949).

[17] [Unsigned], “Hate Speech on Campus,” American Civil Liberties Union, December 31, 1994.

[18] Andrew Sullivan, “What’s So Bad About Hate?,” New York Times Magazine, September 26, 1999.

[19] As quoted in [Unsigned], “Hate Speech on Campus,” American Civil Liberties Union, December 31, 1994.

[20] Robert W. Tracinski, “’Hate Crimes’ Law Undermines Protection of Individual Rights,” Capitalism Magazine, November 16, 2003.

[21] Salman Rushdie, “Democracy Is No Polite Tea Party,” Los Angeles Times, February 7, 2003.

[22] Thomas Paine, “The Crisis,” No. 4, September 11, 1777, in Moncure D. Conway (ed.), The Writings of Thomas Paine, Vol. 1 (1894), p. 229.

[23] Andrew Sullivan, “What’s So Bad About Hate?,” New York Times Magazine, September 26, 1999.

Unpublished Notes

The vileness of the offense makes it a perfect test of one’s loyalty to the principle of freedom.[1]

Sunlight is the best disinfectant.[2]

Working toward what the free speech scholar Lee Bollinger terms “the tolerant society” by banning intolerance, institutes a do-as-I-say-not-as-I-do, free-speech-for-me-but-not-for-thee standard; our means corrupt our end.

“We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.”

“I disapprove of what you say, but I will defend to the death your right to say it.”[3]

Speech As Action

“The wounds that people suffer by . . . listen[ing] . . . to such vituperation . . . can be as bad as . . . a . . . beating.”[4]

Granted, such fortitude is idealistic; so is it naïve? Does it trivialize the sincerity or seriousness of one’s pain? Does it intellectualize or universalize something profoundly personal? While the range of responses to hate is vast, the common denominator derives from what Alan Keyes, a former assistant secretary of state, terms “patronizing and paternalistic assumptions. Telling blacks,” for instance, “that whites have the . . . character to shrug off epithets, and they do not. . . . makes perhaps the most insulting, most invidious, most racist statement of all.”[5]

Speech victimizes only if one grants the hater that dispensation.

In the end, one retains the capacity to check, and to exaggerate, the force of input.

As Ayn Rand showed in The Fountainhead, although protagonist Howard Roark endures adversity that would shrivel most men, “It goes only down to a certain point and then it stops. As long as there is that untouched point, it’s not really pain.”

“The only final answer” to hate speech, “is not majority persecution . . . but minority indifference . . . The only permanent rebuke to homophobia is not the enforcement of tolerance, but gay equanimity in the face of prejudice. The only effective answer to sexism is not a morass of legal proscriptions, but the simple fact of female success. In this, as in so many other things, there is no solution to the problem. There is only a transcendence of it. For all our rhetoric, hate will never be destroyed.”[6]

We should not prohibit speech because it leads to violence. The moment one graduates to action—when the harassment turns from verbal to physical taunts—that should be illegal. Then it is no longer a question of taunts, but a question of threats.


But don’t minorities deserve special protection? After all, they are invariably the canary in the coalmine of civilization.

At the end of our century, we have once again been faced with an outburst of hatred and destruction based on racial, political and religious differences, which has all but destroyed a country—former Yugoslavia—at least temporarily. Rwanda, Sudan…

But why should an anti-Semite be prosecuted for targeting Jews, while the Unabomber is not subject to special prosecution for his hatred of scientists and business executives? The only answer is that the Unabomber’s ideas are more “politically correct” than the anti-Semite’s.[7]

is, of course, to try minds and punish beliefs.[8]

Hate crime expands the law’s concern from action to thought

But a free-market solution to hate effectively perpetuates the status quo. And though laudable in principle, such a solution lacks force in the face of much of human history, especially the 20th century.

It requires great faith in the power of human reason to believe that people will ultimately become tolerant if left to their devices. Surely, in the absence of the 1964 Civil Rights Act, which among other things banned private discrimination, things would not have changed as much anyway.

“require us to believe too simply in the power of democracy and decency and above all rationality; in the ability of a long, slow onslaught” on bigotry.[9]

[1] Ayn Rand, “Censorship: Local and Express,” Ayn Rand Letter, August 13, 1973.

[2] “Sunlight is said to be the best of disinfectants.” Louis D. Brandeis, Other People’s Money: And How the Bankers Use It (New York: Frederick A Stokes, 1914 [1932]), p. 92.

[3] Evelyn Beatrice Hall, under the pseudonym Stephen G. Tallentyre, The Friends of Voltaire (1906).

[4] Daniel Jonah Goldhagen, Hitler’s Willing Executioners: Ordinary Germans the Holocaust (New York: Knopf, 1996), p. 124.

[5] Alan L. Keyes, “Freedom through Moral Education,” Harvard Journal of Law and Public Policy, Winter 1991.

[6] Andrew Sullivan, “What’s So Bad About Hate?,” New York Times Magazine, September 26, 1999.

[7] Robert W. Tracinski, “’Hate Crimes’ Law Undermines Protection of Individual Rights,” Capitalism Magazine, November 16, 2003.

[8] Jonathan Rauch, “In Defense of Prejudice,” Harper’s, May 1995.

[9] Ursula Owen, “The Speech That Kills,” Index on Censorship, 1998.

April 20th, 2004

Defending the Disgusting

The judicial history of free speech in America is the story of how Supreme Court justices—whom the Constitution designates to check and balance the power of Congress and the president—are instead unwilling to act against them, lest a backlash against judicial activism ensue. As FDR put it while trying to pack the Court in 1937, the American people expect the unelected third branch of government to fall in line behind the elected other two.[1] Of course, the judiciary is a deliberately antidemocratic body; as the last bulwark against the tyranny of the majority, it tempers democracy’s excesses. In this way, judges should ensure that government’s powers remain wedded strictly to the protection of the Constitution, which, regarding free speech, means the protection of the First Amendment. The specific purpose of that Amendment, then, is the protection of minorities and dissent.

Alas, from its inception, the Supreme Court has viewed the First Amendment as subject, if not subordinate, to majority rule, or “democratic deliberation.” To be sure, the Court sometimes protects offensive speech, always lauds the value of free speech, and elevates the First Amendment above other constitutional guarantees. Yet the Court simultaneously undercuts free speech by acknowledging a higher value. That value goes by different names—“social utility” and “community standards” summarize them—and mandates the categorization of speech into “political” vs. “commercial” pigeonholes. This technicalized morass is today’s state of the First Amendment.

Now, just as we can best measure the strength of steel under stress, so the best tests of principle come over the most nauseating examples. As philosopher Ayn Rand observed, although it is uninspiring to “fight for the freedom of the purveyors of pornography or their customers . . . in the transition to statism, every infringement of human rights has begun with the suppression of a given right’s least attractive practitioners . . . [T]he disgusting nature of the offenders makes . . . a good test of one’s loyalty to a principle.”[2] The test here is Ashcroft v. Free Speech Coalition (2002), in which the latter challenged the constitutionality of the 1996 Child Pornography Prevention Act (C.P.P.A.). The C.P.P.A. criminalized sexually explicit images that depict minors but were produced, typically via computer imaging, without using any actual children.

C.P.P.A. supporters argue, in the Court’s summary, that “harm flows from the content of the images, not from the means of their production” (3). In other words, virtual child pornography threatens children in “less direct, ways” than real-life child pornography (3). For instance, by increasing the chance that pedophiles become molesters, virtual images “whet the appetites of child molesters” (4).

But any way one rationalizes the C.P.P.A., such images fail to intrinsically harm any flesh and blood minor; the Ferber test requires an “intrinsic” connection. Viewing, after all, does not necessitate acting; one can be a pedophile but not a child molester. Similarly, whereas viewing virtual images coerces nobody and involves only the viewer and the producer, viewing real images, as per New York v. Ferber (1982), constitutes criminal coercion of children. The C.P.P.A. collapses these distinctions—distinctions that Ferber relied on as a major reason for its verdict—but the “casual link,” as the Court notes, “is contingent and indirect” (12); the government needs a “significantly stronger, more direct connection” (15-16).

Furthermore, the government’s arguments turn, not on any actual coercion, but on potential coercion; this is why the C.P.P.A. resorts to such hesitating, noncommittal words as images that appear to show minors in sexually explicit conduct (3), or that convey that impression (4). The cardinal principle of liberty, however, must always take precedence: so long as one refrains from directly initiating force against others, one must be free to pursue one’s own version of happiness—including, however despicable, taking pleasure from virtual pedophilia.

C.P.P.A. supporters argue next that child pornography “as a whole . . . lacks serious literary, artistic, political, or scientific value” (8). Any redeeming values are de minimis, since kiddie porn only perpetuates prurience, pedophilia, and child molestation. Yet however indecent one’s values may be—with the exception of child molestation, which necessitates coercion—freedom does not mean upholding a social consensus, but the autonomy of each individual to choose his own values. No, one’s man treasure is not another’s trash, but using the government to ban certain trash necessarily foists the values of some, usually the majority, on others, usually a minority. American history is rife with examples. The Comstock Act (1873) criminalized as pornography any information concerning birth control. The National Endowment for the Arts continually funds “art” that many would taxpayers consider unworthy of that name. In Vietnam and in Iraq today, we try to impose Western values on many who simply do not want them (at least without their own adaptations).

Indeed, it is sheer folly to make government the arbiter of whether books, magazines, newspapers, radio, television, theater and film have value, let alone “literary, artistic, political, or scientific” value—or, most ominous of all, “serious value.”[3] Judges call such speech lacking “unprotected,” but this is the zenith of censorship. For when government takes it upon itself to decree which of its citizens’ values have value—to dictate which words deserve freedom and which make you a criminal—it exceeds its job of impartiality and assumes arbitrary power. As such, the First Amendment no longer derives from the Constitution but from popular predilections.

And yet, in his dissent, Chief Justice Rehnquist observes that although the “C.P.P.A. has been on the books, and has been enforced, since 1996,” movies produced thereafter, like American Beauty (2000) and Traffic (2001), which the defendants argue the C.P.P.A. would have banned, nonetheless proceeded unabated—and won Academy Awards (Rehnquist, dis. op., 5). Rehnquist thus argues that the C.P.P.A. “need not be” construed to ban such movies (Rehnquist, dis. op., 7). Of course, this is Rehnquist’s construal; one can easily envisage how Attorney General John Ashcroft, or some like-minded zealous puritan, would think otherwise. After all, America is not Alice in Wonderland, and words do not mean, as Humpty Dumpty said, “what I choose [them] to mean.” Rather—if we are to have a government of laws, not a government of men—words must mean what they actually say.

Finally, since laws are rarely repealed, ideological organizations have become notorious for mining case law digests to unearth some obscure precedent, whose language they construe, years if not decades later, to push for a ban on something else—and then something else.[4] Therefore, the alleged limits on censorship, the legalistic conditions of where and when, are insignificant. While the high court today may ban “only” nonvirtual child pornography, using the same nonabsolutist precedents, a future Court may well ban gay porn, and still another Court may ban pornography altogether. Since we have already surrendered such power, the principle has been established, and, as Ayn Rand observed, the “rest is only a matter of details—and of time.”[5] Censorship is the canary in the political coalmine, and the anti-minority, collectivist rationales, however piecemeal and whatever pullbacks, bring us ever-closer to a Fahrenheit 451 society. Do not say “it” cannot happen in America. Having already criminalized defamation and “fighting words”—and with a legal history including Dred Scott, Prohibition, Bowers v. Hardwick, the Patriot Act, and now the Federal Marriage Amendment—it already has.


[1] The “American people . . . expect the third horse to pull in unison with the other two.” Franklin D. Roosevelt, Fireside Chat 46, March 9, 1937.

[2] Ayn Rand, “Censorship: Local and Express,” Ayn Rand Letter, August 13, 1973.

[3] Mark Henry Holzer, Sweet Land of Liberty? The Supreme Court and Individual Rights.

[4] For instance, the Federal Vocational Rehabilitation Act of 1973 prohibits discrimination against otherwise qualified handicapped people. Although the act did not address the specific issue of HIV and AIDS discrimination, subsequent court cases have held that the act protects AIDS as a handicap. See the movie Philadelphia (1993).

[5] Ayn Rand, “Censorship: Local and Express,” Ayn Rand Letter, August 13, 1973.

Unpublished Notes

Thus, banning such personless, harmless speech criminalizes mere thoughts and constitutes preemptive law.

Small but significant

the deep-seated, indelible destruction of pure and innocent children.

Virtual child porn is “neither obscene under Miller nor child pornography under Ferber” (2). Hence?

Possession of nonvirtual child pornography is a federal crime, and soliciting and sexual relations with minors constitutes statutory rape.

Higher Interest

In Chaplinsky v. New Hampshire (1942), the Court affirmed: “[A]ny benefit that may be derived from [such utterances] is clearly outweighed by the social interest in order and morality.”

Meaning of Free Speech

As Voltaire said (actually, it was Evelyn Beatrice Hall, under the pseudonym S[tephen] G. Tallentyre, in The Friends of Voltaire [1906]): “I disapprove of what you say, but I will de-fend to the death your right to say it.”

Marketplace of ideas theory of free speech: ideational diversity is an essential ingredient, the stew out of which bubble the best ideas, if not eventually truth itself.


Additionally, repealing the C.P.P.A. would embolden molesters, who if indicted for vir-tual child pornography, could evade liability because their images are computer-generated (Con-ner, 5).


In Dennis v. United States (1950), the Supreme Court declared: “[C]ertain kinds of speech are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no absolutes.” Yet the First Amendment reads that “Congress shall make no law . . . abridging the freedom of speech.” Common sense tells you that these words constitute an absolute. The Amendment does not say no law except in wartime, or except when the speech gainsays community standards, or except when it lacks redeeming value, or social utility, or fails to serve a public interest.

Granted, the framers never intended the First Amendment to allow, nor has any Supreme Court allowed, absolute free speech. Yet the bottom line is if speech is not absolute, it is arbi-trary.

And don’t tell me that me the slope may slippery, but we can be reasonable about where it slides. The ever-growing number of restrictions show otherwise.

If from the very first days of the republic restraints on speech were commonplace, if no less a patriot than Thomas Jefferson believed that states could censor speech and that a selective prosecution now and then of an unpopular speaker was just, if during World War One antidraft activists could be incarcerated for quoting the Ninth and Thirteenth Amendments, if American communists could be incarcerated not for throwing bombs but for merely agreeing to organize and advocate—if there are no absolutes—then it should not surprise that truly free speech has never existed in America, albeit the country that has the fewest restrictions thereon.

Indeed, if the First Amendment says that “Congress shall pass no laws . . . abridging the freedom of speech,” then Congress should pass no such laws, period.

The genie, once out of the bottle, can never be coaxed or stuffed back inside.

As Chief Justice Frankfurter explained in Dennis v. United States (1951): “The language of the [Constitution] is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. Not what words did Madison and Hamilton use, but what was it in their minds which they conveyed?”

“’[P]rotecting the children,’” as columnist Robert Tracinksi puts it, “is no excuse for muzzling the adults.”

Theoretically, in a democratic republic, politicians are supposed to represent the views of their constituents. Hence, if people disagree with how our representatives are voting, we can vote them out of office. But this principle assumes limited government in the classical liberal sense, not the leviathan we have today.

February 26th, 2004

Buckley v. Valeo

Does campaign finance reform restrict free speech?

In the aftermath of the Watergate scandal, Congress amended existing campaign finance laws to limit the amount that could be contributed to, or spent by, political campaigns. The Supreme Court considered these regulations in Buckley v. Valeo (1976) and made a momentous hash of the legislation. The verdict therefore both protects and violates free speech rights, though its arguments for the former (expenditures) apply equally to the latter (contributions).

Those who want to limit contributions argue that, in contrast to expenditures, contributions are less connected to my speech; only indirectly does my check, after proceeding through the local campaign office to the national office to an advertising firm, really express my views, or my own voice. Yet, as Chief Justice Burger observes in his dissent, the distinction between contributions and expenditures “simply will not wash.” It is more semantic than substantive. Limits are limits, regardless of their consequences or one’s intentions.

Second, political contributions of any size are still a form of speech, as the Court implicitly acknowledges in allowing up to $1,000 (now $2,000) of it. “Your contribution to a candidate,” notes the radio host Andrew Lewis, “is de facto the publication of your ideas.” Thus, however a candidate uses your money, however it reaches him, however “symbolic” it may be in constitutional parlance, it’s still your money—which means it’s still your speech. If you give money to a candidate, you bolster his candidacy; if you withhold your financial sanction or contribute to another candidate, you implicitly sap the former candidacy. This is how people communicate politically in a representative republic.

Thus, as writer Michael Hurd argues, the “extent to which we ban money from campaigns is the extent to which we ban our . . . ability to express ourselves”;[3] the only proper limits are each individual’s willingness to spend the fruits of his labor. A free society cannot survive as such without the expression of ideas unfettered.

Furthermore, as the Court itself argues regarding expenditure limits, a cap “naively underestimates[s] the ingenuity and resourcefulness” of those who seek vicarious political influence. According to Todd Gaziano, Director of the Center for Legal and Judicial Studies at the Heritage Foundation, caps are “like trying to dam a stream with a pile of sticks. Campaign spending eventually will flow through the dam, over the dam, or find another path.” Indeed, as Bradley Smith shows in Unfree Speech: The Folly of Campaign Finance Reform, caps affect the channels through which money reaches political campaigns, rather than the total amount of money.

Still, the Court argues that because its cap still leaves people “free to engage in independent political expression,” pursuing other avenues such as resource-rich advertising, caps do not have “any dramatic averse effect,” like undermining “the potential for robust and effective” campaigns “to any material degree.” But it doesn’t matter if caps preserve some speech. As Barry Goldwater declared, “[E]xtremism in the defense of liberty is no vice! And . . . moderation in the pursuit of justice is no virtue!” Accordingly—especially as the last bulwark against tyranny—free speech is too sacred to be restrained or subjected to a cost-benefit analysis; it needs no checks or balances, for it is its own.

Finally, the appellants argue that contributions exceeding $1,000 tend toward bribery. Since running for office requires significant donations, politicians increasingly offer pork barrels to those who underwrite their campaigns. Both the “actuality and appearance” of this influence peddling thus “undermine[s]” the “integrity” of and our “confidence” in the government. After all, how can I, a college student with a $25 check reserved for my favorite candidate, compete with Fortune 500 companies that contribute (however indirectly) hundreds of thousands of dollars—to multiple candidates?

Now, concerns that electoral contributions amount to quid pro quos are legitimate. The need to curtail the pressure-group warfare that engulfs Washington is urgent. Yet the criteria the Court use employ the yardstick not of the First Amendment—which should guide all discussion of free speech issues—but of its consequences. Consequences are important, but we cannot eliminate a problem by manipulating its effects.

Rather, we must consider the root cause. The Court believes this cause is unlimited contributions, in which “corruption inhere[s].” But, in fact, corruption inheres in unlimited government, toward which ours increasingly tends. Thus, to take money out of politics, we should take politics out of money. As journalist Frank Pellegrini explains: “The thicket of bendable laws [and] targeted tax breaks . . . are what keeps the campaign checks in the mail and the lobbyists in the corridors of power. When one tweak in one bit of fine print can save a corporation millions, how can we expect them to stop trying to secure that advantage.” Concludes writer Edwin Locke: only when politicians “have no special favors to sell will lobbyists stop trying to buy their votes.”

Unpublished Notes

by reducing the scope of government, we reduce the power of politicians

Statism gives the state the power to dispense favors, and so compels entrepreneurs to secure, as Time magazine put it in 1992, the “backing of big, sophisticated companies that know which bureaucratic buttons to press and which deep [governmental] pockets to pick.”

Third, the appellees argue that a cap reduces the costs of campaigning and, hence, the chance for corruption. Similarly, the Court says bribes concern “only the most blatant and specific” acts, and that disclosure laws are only a “concomitant” (612). These scanty laws thus necessitate caps that prohibit all forms of corruption. But bribery, in whatever form, has been illegal since time immemorial. Moreover, in trying to stanch all corruption, the cap stanches the free speech rights of citizens who seek no influence, but simply to be left alone.

In this way, a cap also “necessarily reduces the quantity” and “diversity” of political speech and the “size of the audience reached” (610).

Compare caps to Prohibition

As Bill Safire once put it, “Money talks, but money is not speech.”

You can’t change the consequences without changing the cause.

What first strikes me are the criteria the Court uses. For instance, in his per curiam decision, Justice Souter refers to state “interests,” which if “sufficiently important” (612), may override the rights of the people. Yet for a country whose Declaration of Independence proclaims man’s rights to be inalienable, invoking these illusionary “interests” is utterly contradictory; dictatorships, not free countries, have “interests,” which they typically use to rationalize their despotic rule.

Rather, the state cannot ban anything except acts that violate individual rights.


Appellees argue that expenditure limits serve a “public interest” by equalizing the financial resources of candidates.

Court said money spent must necessarily vary according to the “size and intensity” of support for the candidates.

Ceilings also handicap minor candidates lacking name recognition

The definition of an “expenditures” is unconstitutionally vague.

Publicly Financed Elections

Additionally, presidential campaigns would, for the first time in American history, be eligible for public funds.

saddling the country with our present dysfunctional system of election finance.

Upheld a public-financing scheme for presidential elections that patently discriminates in favor of the established Republic and Democratic parties—by paying them in advance of the elections—and against third parties, who must gain at least five percent of the national vote before being compensated for any of their expenditures in the course of the campaign.

One consequence is that millionaires, constitutionally protected in unlimited spending on their own campaigns, are given significant advantages over less wealthy opponents. And, of, course, the existing two parties were given a major hedge against possible third-party competition—unless headed by the Texas billionaire Ross Perot.

Buckley increased the prominence of many unusually wealthy candidates who swamped less affluent opponents, not to mention the disgust expressed by nonwealthy candidates over the increasing amount of time they had to spend raising money in self-defense.