He Don't Need No Stinking First Amendment

Hollywood Reporter: Sensenbrenner to cable execs: Indecency is criminal act. Rep. F. James Sensenbrenner III, R-Wis., told cable industry executives attending the National Cable & Telecommunications Assn. conference here on Monday that criminal prosecution would be a more efficient way to enforce the indecency regulations.

If what this politico is proposing is not unconstitutional, then we are well and truly screwed as a free society.

Why are people not screaming from the rooftops about the outrageous attacks we're seeing on the First Amendment, on free speech itself? Are people really that afraid these days to speak their minds?

Sensenbrenner surely knows he's playing craps with the Constitution when he makes these kinds of statements. He doesn't care. He's playing to an audience -- the people who don't realize that there is a personal censorship device that works infallibly. It's called the Off button.

Comments

[Alex Krupp]

Why are people not screaming from the rooftops about the outrageous attacks we're seeing on the First Amendment, on free speech itself?

Because no one listens.

[Michael Zimmer]

If you look past Jeff's language, there's been an interesting discussion of this over on Buzzmachine: http://www.buzzmachine.com/archives/2005_04_05.html#009409

In some ways, using the mechanisms of criminal law (where laws against indecency exist) rather than regulatory law makes sense. As Sensenbrenner suggests, it would allow for more specific prosecution of offenders, and avoid casting "too wide a net." Also, while I'm no lawyer, it seems the criminal system might offer more protections for the accused than the existing regulatory regime. For example, one's guilt would be judged by a jury of peers, not the commissioners of the FCC.

This isn't to say I'm in favor of speech regulation, but I can see the general logic in considering the criminal system over the regulatory one.

[gp]

Dan, sober analysis may not serve to hype "grassroots journalism", but you should really read about the dismissal of the obscenity case against Extreme Associates/Rob Zicari (the "feigned rape" videos) before concluding that we are in any way losing our right to free speech (on non-political matters it has almost been infinitely expanded in our lifetimes).

Then, take on McCain/Feingold, which directly impedes political speech, and you'll have more credibility on the subject.

[Scote]

gp wrote:
"Dan, sober analysis may not serve to hype "grassroots journalism", but you should really read about the dismissal of the obscenity case against Extreme Associates/Rob Zicari (the "feigned rape" videos) before concluding that we are in any way losing our right to free speech (on non-political matters it has almost been infinitely expanded in our lifetimes)."

The dismissal of the Extreme Associates case means virtually nothing since the Justice Department plans on refilling the case. Even with some favorable rulings for the defense, the Justice Department's prosecutions can bankrupt those it prosecutes and some cases are bound to be found in favor of the Administration's Puritanical views. Zicari faced **decades** of jail time for the federal obscenity charges. If that doesn't put a chill in speech then nothing will. (PS, from watching the Frontline special, it seems Zicari's work really is disgusting filth, but Justice doesn't plan on stopping with him. They are targeting all explicit porn. He was just a test case, and they aren't giving up.)

A little **actual** sober review of the facts favor's Dan's position, not yours, gp. When Republicans and the FCC talk about censoring the cable that I invite into my home and pay for, there really is no difference from them telling Border's Books what kind of books they can sell. If you don't like the channel, turn it off! For parents with children, use that "V Chip" that all TVs now come with, or better yet, don't let them watch TV at all!

[Anspar Jonte]

Dan, people are more easily herded than you want to believe, especially in America where we've been bred to be docile (people, not the government).

[Owen]

Anspar is right. To paraphrase an old saw: No politician was ever defeated for underestimating the intelligence and attention span of the people.

[howard sands]

Dan, you're making a non-point.

Speech is either protected by the First Amendment or it's not. If it's not, it's up to the democratically elected polity to determine whether and what sanctions are appropriate. Up to, I suppose, the boundaries of "cruel and unusual".

If you don't like the result, please go out and win some elections. But if you can't, please don't call for a "short-cut" to your policy preference with some new act of judicial activism.

[Owen]

This subordinating of our individual liberties to the orthodoxy of legislators with a theocratic agenda isn't about policy preferences. For the first amendment to mean anything, it requires both legal and procedural safeguards and objective standards supported by our courts to avoid having them set as part of the hysterical pandering of our legislators. In past years I would have expected conservatives to embrace constitutional principles; now we've lost our compass. It's heartbreaking that public apathy and misinformation (and Democratic Party vacillation and ineptitude) has allowed this Orwellian future to loom on the horizon.

Unlike you, I hope the courts remain active in protecting our rights...that's their job. If we rely on protection of those rights by elected politicians, no minority is ever safe from the tyranny of those elected by the majority.

Apparently "activism" is in the eye of the beholder anyway...the SCOTUS involvement in some new issues like the Florida election was activist to the same people who moan because they didn't intervene in the Schiavo mess.

[howard sands]

Changes to the penalty mix for violations of laws **long upheld as Constitutionally proper** does not raise new constitutional issues.

Black letter law.

And no, I do not mean to include laws that would, e.g., impose a penalty of death for indecent expression that violates the sensibilities of Catherine McKinnon or Andrea Dworkin.

(On that note, if you haven't noticed, the far left, anti-violent-expression-against-women "sex=rape" contingent IS aligned with Sensenbrenner on this, and I doubt anything less than the RACK would molify them).

[Owen]

Understood, Howard, but when you get beyond the legal history, the current context here is illustrative...and important. The current crop of national leaders seem inclined to substitute their definition of acceptable morality and to institute new and arbitrary procedures supporting enforcement. These have, as in the case of the FCC faux indignation about Janet's aureole, replaced any concerns for broader implications, the kind of chilling effect Dan often refers to. In many ways they have made the old-line liberals look more like their conservative counterparts a generation ago than the amoral, wild-eyed radicals beloved of Rush and the religious right.

The oft-remarked desire of ethical giants like DeLay and Santorum to remake the court system to support their religious posture makes the potential for mischievous enforcement of the law far greater. The protections afforded us through the courts are the only protections immune -- at least theoretically -- from political interference.

The darkest days of Court history, IMHO, were not when they exercised judicial activism to extend rights, but when they stepped back from the protection role and reflected too well popular majority or power bloc perspectives.

[Dan Gillmor]

Howard, as several people have pointed out, the role of the courts is, in part, to say no when the majority acts in ways that violate the Constitution.

This isn't a pure democracy. Thank god for that.

[Matt Roush]

I love the smug line, "If you don't like the result, please go out and win some elections." Like that's easy to do with easily hackable machines & software tabulating the votes with no paper trail.

Luckily the Terri Schiavo case has many Republicans backing away from the theocratic nutjobs, so we may not be headed for the Handmaid's Tale just yet.

[howard sands]

Owen wrote:
> The current crop of national leaders seem inclined to substitute their definition of acceptable morality and to institute new and arbitrary procedures supporting enforcement

I suppose it depends on where you sit along the ideological divide, Owen.

I for one am glad I no longer have the Clinton Administration imposing its extreme ideological views by spending my tax money on overseas abortion. Or signing treaties like the Kyoto Treaty (later rejected 97-0 by the Senate) which would impose ideological, not scientifically proven, views on my freedom to purchase petroleum products without new outrageous taxes and rationing. Or "Hillarycare" style mandatory coverage for mental health (a litmus test-issue for the ideological left wing), funded by burdensome "no-opt-out" taxes on my wages and salaries.

I'm also glad that we no longer have the Clinton Administration clamping down on intellectual and political freedom by surpressing our rights to use encryption software for private communication. (Don't equate Bush's flirtation with Hollywood for Clinton's fellow traveling with extreme elements of the FBI and NSA seeking control over free expression).

I'm happy we have halted the forward momentum of judicial activism, and no longer have young leftists on the bench setting up this nation for another generation of top-down, undemocratic constriction of liberty and freedom.

I'm happy to affiliate with a political party that invites pro-Lifers, pro-choicers, big-government types, limited government advocates, aggressive interventionists, neocons and our-own-shores limitationists into one big tent.

I am sickened when I see the ideological thought police among the Democrats weeding out all diversity of views. Although, as a Republican, I am delighted to see self-eviceration by the dying carcass of ideological socialism.

[Owen]

I guess, Howard, the only thing I agree with you on is "I suppose it depends on where you sit along the ideological divide".

I do think you could exchange "liberal" and "conservative", "Democrat" and "Republican" and all the other labels and get agreement from a substantial part of the citizenry; getting them to act on their true convictions is the role of the parties, not the courts.

The funny thing to me is that I grew up a conservative, which means I respect the rule of law, am accountable for my own life, and have expectations for others to do likewise. I expect value from my tax dollar, fairness from the law and quality of service from those I elect to office regardless of their personal ideology.

From this conservative foundation, I could move with confidence and compassion in a world filled with unfairness, suffering and hypocrisy, and by my efforts and example try to help it to become a better place for all. I’ve always tended to vote for candidates who I felt served the public, not the party or even my own preferences; in my younger years these were mostly Republicans; that hasn’t been the case of late.

I still feel I don't have to apologize for worrying about the less fortunate just to keep taxes low for those in our society who are the most fortunate. I don't see a conflict between human rights, personal responsibility and the role of government. I don't see the need to put down those who worship god in different ways than I do. I don't need government bureaucrats pushing themselves into my life, my bedroom or my hospital. I don't need somebody else deciding what I could read or listen to, what I should teach my children or who my friends should be. And I don't need to tolerate politicians whose only interest is their own class' wealth and power, not the best interests of all the citizens of this country.

Increasingly this has taken me from my party. I didn't change, but the liberals became more like me and the "conservatives" became more like the selfish powermongers the liberals always portrayed them to be. The truth was that labels -- liberal or conservative, patriotic, religious or America – don’t mean much any more. They have meanings rooted in PR, in Lewis Carroll and George Orwell, becoming marketing tools, not values rooted in our own history and heritage.

Now, with what I hope is wisdom hard earned over the years, I realize that ethics isn’t taught in a class. I know that I can’t possibly know what God intends, and that those who hide behind a cross or a flag while serving their own ends are more despicable than run-of-the-mill street thieves. I understand that leadership shouldn’t use our differences to divide us, but to unite us.

[howard sands]

> I didn't change, but the liberals became more like me and the "conservatives" became more like the selfish powermongers the liberals always portrayed them to be.

ROFL. If (i) you are conservative, (ii) you haven't changed and (iii) the liberals have become more like you, then ergo you're saying the Left has become more moderate in recent years.

A more absurd proposition I cannot imagine.

Who would have thought that Republicans, having swept the majority and dominated government for five years (aside from the undemocratic Jeffords-Daschle putsch), would make massive new federal investments in education, grown government, forestall the all-but-seemingly-inevitable Clinton "dot bomb" depression, and create massive new entitlements for our seniors? And that it would be the Republicans standing ready to commit the full faith and credit of the U.S. government to backstop social security benefits for the next generation - which is the effect of the Bush plan - while Democrats favor nothing more than higher and higher taxes?

It's the conservatives who have moderated their views, with Bush as an overriding moderating force on modern conservatism, left wing delusions to the contrary.

[Ran Talbott]

"Or signing treaties like the Kyoto Treaty (later rejected 97-0 by the Senate)"

There was no "Kyoto Treaty".

The agreements reached in Kyoto were never voted on by the Senate.

"I'm also glad that we no longer have the Clinton Administration clamping down on intellectual and political freedom by surpressing our rights to use encryption software for private communication."

And the way that they did this (on your planet, anyway...) was?

"It's the conservatives who have moderated their views, with Bush as an overriding moderating force on modern conservatism, left wing delusions to the contrary"

Interesting. I never would have believed I'd live to see the day where someone who claims to have the power to declare American citizens "un-persons", and imprison them for life without trial, would be called a "moderating force" in American politics.