Tuesday, January 23, 2007

Censorship by Nickels and Dimes

In what seems another age, some thirteen years ago, when Hillary Clinton attempted to foist socialized medicine on the country without even the courtesy of being elected to office, I wrote an article, "Here Comes a Chopper to Chop Off Your Head: Freedom of Expression Vs. Censorship in America," for the quarterly Journal of Information Ethics (St. Cloud State University, Minnesota - Fall 1995). The subject was the steady encroachment of censorship in all fields of expression, ranging from the banning of tobacco advertising to the mandating of the "V-chip" in new television sets as a means of "protecting" children against sex and violence in programming.

Now Hillary Clinton wants to foist herself on the village - excuse me, the country - as president, while censorship itself has inched up like a slow-rising flood to engulf political campaign ads, cresting, for the moment, at the McCain-Feingold campaign finance law. The principal subject here is the jeopardy in which "political speech" has been put, and this commentary may be treated as a shortened, revised version of my original "Chopper" article.

Let's start by quoting Article One of the Constitution:

"Congress shall make no law respecting the establishment of a religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Now, that is very clear. "Congress shall make no law...abridging the freedom of speech" - period. No exemptions, exceptions or special circumstances are mentioned or specified in that statement. No particular subject or form of speech is singled out or exempted from that broad assertion. It is as clear as "two plus two equals four." It means that regardless of one's financial status or political persuasion or the rightness or looniness of one's ideas, one has an inalienable right to say what one thinks, on any issue, about any person, about any thing. It means that one can agree with others on a specific issue and speak with them as a group, or speak as a lone individual, to anyone willing to listen or read.

On what moral principle is the First Amendment based? On the sovereignty of one's mind, a sovereignty given value in reality by the recognized and protected liberty to say what is on one's mind. The least proscription of that liberty is a shackle that ought to be contemptuously rejected, while the would-be censor should be damned. A mind free to think what it pleases, but prohibited from expressing what it thinks, is not a practical, life-enhancing value. A statutory or literal gag does nothing to further an individual's existence or happiness. But it is not any individual's happiness that a censor is concerned with, but rather his mindless obedience or his sanction by silence.

Man lives by his mind, by thinking, and by taking actions based on his thinking. If he is prohibited from taking action - in this instance, from speaking - then the freedom of thought is nullified by the destruction of the freedom to speak, negated as surely as if a lobotomy had been performed on his brain. You will not hear him, you will not know what he thinks, because to speak will earn him punishment.

Punishment? By whom? By those who do not wish him to speak, or by those who do not wish to hear what he has to say or who do not wish others to hear his thoughts. What gives them the power to gag an individual? Fiat, non-objective law. What is the motivation behind the gag? In most circles, and in editorials and commentary, one encounters reams of verbiage about "fairness" or "equity." But all that discussion focuses on irrelevancies.

Fundamentally, the motivation is fear. Fear of the mind, and most especially fear of reason. Reason is the foundation of rational persuasion. A politician or group that does not want others to hear an articulate, rational, persuasive argument against a particular program or policy, will want that opposition suppressed or neutralized. It is mindless agreement such creatures want, not agreement by serious reflection or thought.

The censors will not admit they are censors, or that they are advocating censorship. Those terms still frighten them with nearly superstitious awe. Cowards that they are, they prefer to introduce censorship by subverting the concept of freedom of speech. To paraphrase Ellsworth Toohey in Ayn Rand's The Fountainhead, "Enshrine 'fairness' or "equal access' or 'diversity of opinion,' and the concept of freedom of speech is razed."

The First Amendment has been abridged, and the issues that have nickeled-and-dimed it to bankruptcy have so atomized the subject -- one might even say vaporized it -- by such a prodigious volume of non-conceptual thought and politically-biased interpretation by theorists, jurists and legal philosophers, that one is virtually stopped in one's mental tracks by the plethora of sub-issues generated by those kinds of thought and interpretations: political speech, hate speech, corporate speech, commercial and non-commercial speech, obscenity, campus speech codes, balanced viewpoints, the "Fairness Doctrine," content-neutral speech, employer and employee speech, harm-based restrictions on speech, government-mandated product warnings, high- and low-value speech....the list goes on. And none of this even begins to address the subject of libel law.

Nielsen ratings, Gallup polls or any other species of "spot democracy" cannot determine the goodness or badness, the truth or falsehood, or desirability or undesirability of anything. A tally of nods and shakes of heads, whether of the entire population, or of a small fraction of it, is no substitute for thought, objectivity and reality. A consensus, real or imagined, is not a valid substitute for a moral standard.

For example, in an Associated Press article on January 21, "Smoke-free-law movement catching fire across the nation," it was reported that,

"In Virginia, a recent Mason-Dixon poll indicated a majority of the state's voters favored a ban."

It is irrelevant whether the poll truly canvassed all voters or just an infinitesimal percentage of them and then performed a hocus-pocus, statistics-based mathematical projection that would allow someone to say that it "indicated" a majority favored a smoking ban. At stake is the selective seizure of private property to benefit nonsmokers, in the name of "public health" or the "general welfare." Similarly, the Americans with Disabilities Act also mandates the seizure of private property to accommodate mostly wheelchair-bound individuals. Doubtless a poll or survey would "indicate" that "most" people approve of the Act. These and other such policies are a species of eminent domain.

And, similarly, the McCain-Feingold campaign finance law was intended to "limit" the employment of private property - in this instance, money - during elections. Its target is "big money," donations in the hundreds of thousands or even millions of dollars to the campaign chests of candidates for office or to official organizations that promote the candidates. It is a kind of reverse seizure of property; instead of confiscating it, it prohibits its use to publicly endorse a candidate or a cause.

The law, however, will not restrain the likes of George Soros, the ultra-left billionaire, who will always find a way of circumventing it (he spent $26 million trying to defeat George Bush in 2004), nor will it prevent the creation of numerous ploys to circumvent it through organizations affiliated with political action committees (PACs) that a court, panel, or commission may or may not deem are in compliance.

The flood of censorship has crested with that law, because on December 21st a single spillway was opened that may portend the demise of the law or its stricter enforcement or simply more confusion. It is but a nickel's worth of respite.

A three-judge panel ruled against a ban on corporate or union money that paid for issue advertisements in the weeks before a federal election. A rationalistic distinction was made by the panel between ads that promote a specific candidate and "general issue ads" that may or may not merely mention a candidate's name. In this instance, the Wisconsin Right to Life, an anti-abortion group, brought a case before the Federal Election Commission on the grounds that the rule violated the group's freedom of speech.

It lost the case, but the Supreme Court, instead of throwing out the entire law, returned the matter to the three-judge panel, which ruled in the group's favor. The group's ads, it found, did not violate restrictions against "express advocacy" for or against a federal candidate and so were not "campaign ads" but "general issue ads," because they did not endorse or oppose a candidate, but instead urged voters to contact their senators. Therefore, it was exempt from the "big money" rule and the 60- and 30- day ban of "campaign" ads before elections and primaries.

With such pretzel-like logic, governed by an epistemology which holds that arbitrary rules and not principles are the primary measure of legally permitted speech, we should not delude ourselves that this represents a step in the right direction, which would be a total repeal of the campaign finance law as unconstitutional. Neither the Wisconsin group, the three-judge panel, nor the FEC, nor the Supreme Court knows any more what is or is not constitutional.

In the meantime, Section 220 of the lobbying reform bill now in the Senate would require "grassroots" organizations, bloggers, and individuals who communicate with 500 or more members of the public to register and report quarterly to Congress if their subject is Congress or any political issue, whether or not money changes bank accounts. An amendment to the bill, passed by the Senate, would impose criminal penalties, including one year in jail, for failing to register with Congress.

What does the First Amendment state? "Congress shall pass no law...prohibiting the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." In short, the bill would require individuals to seek permission of the Congress to speak and attempt to petition the government to redress grievances. The bill exempts corporations, unions and large organizations, such as Soros's Move On, from having to comply with the proposed law. (Incredibly, the bill is seen as a curative to Congressional corruption! You can be sure that most members of Congress will find a way to get around the "reform.")

Finally, Accuracy in Media reports that "liberals in the House and Senate intend to push legislation giving the Federal Communications Commission the authority to monitor and restrict what conservatives in the media say and how they say it." They want to revive the "fairness doctrine" that would empower the FCC to force broadcasters and popular conservative talk show hosts such as Rush Limbaugh to grant "equal access" to their programs.

What is censorship? Most dictionaries agree, in their definitions, that it is the practice or system of officials suppressing or deleting material in books, films, letters, news, and so on. Webster's Seventh New Collegiate Dictionary and the Oxford Concise Dictionary (6th Edition) both imply, in their use of the term "official," that censorship is strictly a government action. The American Heritage Dictionary (2nd College Edition), however, is less exact in implication; censorship, in its definition, is the "act, process, or policy of censoring," while a censor is defined as a "person authorized to examine literature, plays, or other material and who may remove or suppress what he considers morally or otherwise objectionable." The latter definition could apply to government and private actions alike, since it neither identifies a censor as an official, nor specifies on whose authority he acts. Moreover, no extant definition mentions the use of force, and none incorporates the concept of property rights.

The role of force is a crucial element in the action of censorship, and so is the property status of that which is being suppressed. The only institution granted the legal use of force in our society -- or in any society -- is government. The author's definition of censorship, therefore, would be: The employment or threat of government force in the suppression of ideas, information, or material in privately produced books, films, plays, artwork, letters, news, programming in any broadcast medium, and in all other kinds of private written or spoken material.

To clarify this point, some distinctions must be made. A government cannot practice censorship on its own publications. It can practice fraud, falsehood and propaganda. It can suppress, falsify, manipulate or omit information which any of its branches or agencies may generate, and only the honesty of a government employee or the alertness of a journalist may expose the wrong-doing. The federal government already practices informational fraud in a wide range of fields, especially in environmental, health, and economic matters. But this is another subject altogether.

Censorship is not a publisher, broadcaster, newspaper or other medium refusing to carry, promote or otherwise associate with a writer's, artist's or advertiser's material. The reasons which the owner of a medium may cite in any instance of refusal can be rational or irrational, incomprehensible or repellant, but the reasons are irrelevant. No one has a moral obligation to publicize positions or viewpoints with which he disagrees, or to provide a free or paid podium for others because they lack the means of promulgating their viewpoints.

It makes as much sense to mandate a "fairness doctrine" or "balanced opinion" policy for broadcasters, newspapers and other forms of expression as it would to require one to allow a stranger to include remarks in one's own private correspondence, or to force a shopping mall to give space to someone who advocates the overthrow of capitalism. One problem in the matter of "fairness" or "balance" can be found in the assertion by many publishers in their mottos, slogans and public statements that they exist to "serve the public's right to know" or to "serve people's need for information." Flaunting obsequious sentiments of this kind is an invitation to regulation and control by those claiming "needs" and "rights" and by politicians and bureaucrats who wish to satisfy those "needs" and "rights."

Censorship, then, is a government power reserved exclusively for the control of private expression or communication, whether in books, newspapers, films, letters, visual art, advertising, or over the airwaves. None of these forms of expression or communication is "public" in the sense that it is "collectively" owned. It is "public" only insofar as publishers, film studios, or advertisers wish to reach as many readers or as wide an audience as possible, just as restaurants or workplaces are "public" only insofar as their owners wish to trade with individuals.

But as all these forms of expression or communication employ private property (or, as in the case of broadcasters, licensed property) as vehicles, there is no argument that can justify the control of either the form of expression or communication or the property on which it is based. An attempt to control the property is not necessarily an attempt to impose censorship; but control over it can lead to de facto censorship.

What the Constitutional Convention of 1787 established was a republic, or a system of government in which rights are not only recognized and firmly established as absolutes, but are protected from abridgment by the whims and caprices of conniving politicians and envious majorities and minorities. This is the system of government -- albeit imperfect in practice -- which the country had up to around the Civil War. It was designed as best the Founders could to thwart the "democratic" forces in existence even in the late eighteenth century America. The Constitution, unfortunately, was not then, and certainly is not now, democracy-proof.

It is apropos to cite one of the Founders, James Madison, on the subject of power:

"Where the real power in a government lies, there is the danger of oppression. In our Government the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of constituents."
The author would append to this truth the observation that government can also become the instrument of a minority of constituents who have the sympathy and support of intellectuals, the courts, the news media, and last, but not least guilty, politicians with axes to grind or nothing else to do but try to justify their continued presence in Washington.

Behind this phenomenon are the ideals of American thinkers such as Herbert Croly, who wrote early in the 20th century:

"The Promise of American life is to be fulfilled not merely by a maximum amount of economic freedom, but by a certain measure of discipline; not merely by the abundant satisfaction of individual desires, but by a large measure of individual subordination and self-denial."
Croly's lengthy, detailed proposal for a fascist reformation of America was published in 1909. Observe the contradiction in his theme. While he deprecates "economic freedom" and "individual desires," he proposes "discipline and self-denial." Now, either one has the freedom to fulfill one's individual desires -- including the desire to speak one's mind -- or one does not. What is the "discipline" but an altruist selflessness subordinated to the collective or the state?

Croly, it should be noted, was a leading theoretician of the Progressive Party. The principal planks of that party's 1912 platform have since been adopted and in place for decades. It might also be noted that he was an admirer of Otto von Bismarck, the German chancellor, who united the contentious German states, instituted the welfare state, and imbued Germans with a national spirit for the nation's "historical mission." That historical mission led, inexorably, to Adolph Hitler.

The question then remains: Are Americans so beaten or so stubbornly complacent that they will allow themselves to endure tyranny? Are they so cynical that they hope that things will last only for their own lifetimes, and let the devil and their children take the hindmost? Time will tell.

In conclusion, another original American should have the last word. Patrick Henry, who was so prescient about the flaws in the Constitution and the powers he was certain the federal government would eventually accrue by default, and who passionately campaigned against ratification, and then for the original ten amendments, said that "if the people would not die or be free, it was of no consequence what sort of government they lived under."

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