August 29, 2005

Is Politics the Next Venue for a Speech Code?

Is America in the early stages of developing a political speech code, similar to those now found on hundreds of college campuses across the country? These speech codes, often imposed in violation of basic free speech rights by state universities, obstensibly aimed at preventing harassment, in reality serve to contain speech that is subjectively offensive to one person or a favored group, making the free exchange of ideas difficult, if not disasterous, for those whose speech runs counter to the accepted “norm” of the college campus.

In his 1991 book on the changing campus environment, Illiberal Education: The Politics of Race and Sex on Campus, Dinesh D'Souza noted:

Universities are a microcosm of society. But they are more than a reflection or mirror; they are a leading indicator...Of all American institutions, perhaps only the military brings people of such different backgrounds into more intimate contact.

From the early 1980's onward, the cultural outlook on college campus swung decidedly to the left. In order to advance what D'Souza called the victim's revolution, speech codes became increasingly common as a means of controlling debate and dissenting (read not favored or politically conservative) views. The venues and content of speech were sanitized, dissenting views regulated, if not de facto banned, and thus was born a new world on campus, one in which any speech viewed subjectively as offensive was verboten. In other words, campus speech codes served as the progenitor of the political speech code now at hand.

Last week, a transcript of a Washington state case dealing with political ads became the subject of a little internet reporting, here and here.

One of the most interesting lines from the decision is this little gem from Judge Richard A. Jones:

Under any notion of rational interpretation the suggestion that an elected official engaged in a "cover up" is an assertion that clearly and unambiguously suggests the official engaged in an act of deceit, deception, fraud or concealment...The notion that this advertisement was desigened to discuss the issues and noted a personal attack on the character strains credulity. Any listener knowing of the citizen's candidacy for attorney general would have only one reasonable interpretation: that is, that the ad was an exhortation to vote against [candidate Deborah] Senn.(emphasis added)

The ad in question was one of a pair that attacked Washington State Attorney General candidate Deborah Senn. The inclusion of the line accusing Senn of a cover-up distinguished this ad from the other, more general issue ad.

Aside from the attack on Senn's character, this would have been a case of no import, but by interpreting an attack on a candidate's character as a type of campaign activity designed to pursuade the voter about a person rather than about an issue, the court said that the ad with the personal attack was subject to regulation by the state.

Admittedly, I am unfamiliar with the Washington State precendent cited in the ruling, but it seems to me we are looking a a different realm of political speech regulation than had been previously contemplated in earlier times.

With the passage of BCRA, the regulation of more types of campaign ads, and the growing calls for more regulation of the media of political speech (namely anonymous blogs), we as a nation head toward a world in which political speech is to be the next victim of a speech code.

Consider for a moment that under the old, pre-BCRA Federal Election Campaign Act as interpreted in Buckley vs. Valeo, in order for speech to be regulated political speech, the advertisement in question had to contan the so-called magic words, such as "elect, vote for, vote against," a particular named candidate. Under BCRA, any ads which promote, attack, support or oppose an indentifiable federal candidate are regulated. Thus if you put a picture up on the TV screen and say nasty things about a canddiate, that can be interpreted as a campaign ad and thus subject to regulation.

Thus, despite what I think is a dumb result, Judge Jones is exactly right in his ruling under federal law and I would presume state law. While this may be a correct legal ruling, the underlying question becomes, what about politics has changed so much that we need a speech code, a set of regulations designed to inform the voter as to who paid for the ads?

Politics has always been a bit of a blood sport. At the heart of politics is control over the policy-making and enforcing apparatus of the state. Politics has been the venue of a number of episodes of character assasinations, brutal outings and complete misinterpretations of the indiscreations of youth. Yet, in 2005, reformers like John McCain, Russ Feingold, Chris Shays, Charles Lewis and Fred Wertheimer and others think that our sensitivities are too delicate to allow unfettered debate. In their eyes, we need a speech code, because we dumb common folk are too stupid to understand that when one group charges a candidate allegedly covered up some incident, that we can see through the rhetoric to see an attack ad when presented with it.

The next several election cycles will surely test the growing political speech code. Too much regulation is a bad thing and leads to stagnation, indoctrination, and lack of diverse opinions. If you don't believe me, go to any college campus with a sign that says "Political Correctness and Speech Codes are Tools of Liberals' Repression" and see how long you last.


Posted by Matt Johnston at August 29, 2005 06:13 PM
Comments
Comment #76170

Earth to Matt Johnston, please come in.

You need to check your facts. I live in Washington and saw the ads you mentioned. They ran right before the primary election, in the middle of the political season. There was NO DOUBT that the ads were intended to get people to vote against Senn. And they worked. The court got it right. You got it wrong.

Posted by: ElliottBay at August 29, 2005 07:07 PM
Comment #76182

This has already happened…debates are boring and meaningless because neither candidate can say anything that might offend anyone…just like no one can say anything in public if it offends a liberal

Posted by: The Game at August 29, 2005 07:58 PM
Comment #76189
Thus, despite what I think is a dumb result, Judge Jones is exactly right in his ruling under federal law and I would presume state law.

You’re right. The ruling is proper.

While this may be a correct legal ruling, the underlying question becomes, what about politics has changed so much that we need a speech code, a set of regulations designed to inform the voter as to who paid for the ads?

With the explosion of groups like MoveOn and SwiftBoatVets, it’s clear that the political climate has indeed changed to the point where to know the players - you need a scorecard. Do we really need to fight to encourage more media attack ads?

Maybe we would be better off spending our time fighting for people who are being punished for speaking out against the government.

Posted by: Burt at August 29, 2005 08:22 PM
Comment #76196

Far as I have read, it is only Bush supporters who fire their employees for having Kerry bumper stickers on their car in the company parking lot.

Liberals won’t drag you behind a car, or whup the shit out of you for disagreeing. That is largely the province of conservatives wearing white hoods or who revere John Wayne and his shoot ‘em up tactics in the movies.

Posted by: David R. Remer at August 29, 2005 08:41 PM
Comment #76197

Its not just free speech that’s getting a beating by Republicans….

__________________________________________________
US Army auditor who attacked Halliburton deal is fired
By Andrew Gumbel in Los Angeles
Published: 30 August 2005
An American government whistleblower who denounced the decision to give billions of dollars in Iraq reconstruction contracts to a subsidiary of Vice-President Dick Cheney’s old company Halliburton has been fired from her job, ostensibly because of poor performance.

Bunnatine Greenhouse, a senior civilian auditor of military contracts for the Army Corps of Engineers, went public last year with her concerns about a no-bid contract given to Kellogg Brown & Root (KBR). She told a congressional hearing that the decision was “the most blatant and improper abuse I have witnessed” in 20 years as a government contract supervisor.

She will now be removed from her post and offered a junior position in a different department. The Pentagon said she was offered the opportunity to retire early, but she turned it down.

Three Democratic Congressmen demanded an official investigation before the demotion goes into effect. Pentagon officials have denied the move has anything to do with her opinions on the KBR contract.

As the senior civilian in charge of procurement at the Army Corps of Engineers, Ms Greenhouse developed a reputation as a stickler for proper procedure and won high marks in her performance reviews. Those reviews began deteriorating at almost the same time she began speaking out against the KBR contract, causing her lawyer to accuse the Pentagon of malicious retaliation.

Pentagon officials have denied that her demotion is linked to her opinions on the KBR contract.

An American government whistleblower who denounced the decision to give billions of dollars in Iraq reconstruction contracts to a subsidiary of Vice-President Dick Cheney’s old company Halliburton has been fired from her job, ostensibly because of poor performance.

Bunnatine Greenhouse, a senior civilian auditor of military contracts for the Army Corps of Engineers, went public last year with her concerns about a no-bid contract given to Kellogg Brown & Root (KBR). She told a congressional hearing that the decision was “the most blatant and improper abuse I have witnessed” in 20 years as a government contract supervisor.

She will now be removed from her post and offered a junior position in a different department. The Pentagon said she was offered the opportunity to retire early, but she turned it down.
Three Democratic Congressmen demanded an official investigation before the demotion goes into effect. Pentagon officials have denied the move has anything to do with her opinions on the KBR contract.

As the senior civilian in charge of procurement at the Army Corps of Engineers, Ms Greenhouse developed a reputation as a stickler for proper procedure and won high marks in her performance reviews. Those reviews began deteriorating at almost the same time she began speaking out against the KBR contract, causing her lawyer to accuse the Pentagon of malicious retaliation.

Pentagon officials have denied that her demotion is linked to her opinions on the KBR contract.

Posted by: Aldous at August 29, 2005 08:44 PM
Comment #76203

Aldous, sounds very much like the General who said we would need 200,000 troops to get control of Iraq.

Posted by: David R. Remer at August 29, 2005 08:52 PM
Comment #76271

Earth to ElliottBay:

Frist, if you had bothered to read the whole post, you will note that I said that Judge Jones made the right decision based on my more extensive knowledge of federal law and my limited understanding of Washington state law. Whether his decision is upheld is an open question.

Second, the whole purpose of the citation of the Washington state case was to point out that regulation of political speech has gotten to the point of being absurd and an abuse of our collective intelligence.

Third and finally, David, as much as I respect your input, I think you are wrong about conservatives like me. Instead of arguing for speech codes, I believe we don’t need them. I will be the first person to stand up and defend a liberal for speaking their mind, even if it makes my blood boil because that is the heart of our freedom. My problem with campus speech codes and the growing political speech code is that we as a society must couch everything we say and do in terms of political correctness. Not just mere politeness, but political correctness.

That we must regulate polite discourse offends deeper than anything anyone could say to me.

Posted by: Matt Johnston at August 30, 2005 09:41 AM
Comment #76272

David said,

“Far as I have read, it is only Bush supporters who fire their employees for having Kerry bumper stickers on their car in the company parking lot.”

I have not seen or heard any of those firings reported. Could you link me to one example.

Also, I have worked for companies that allow ONLY your parking sticker on the car and NO other stickers of any type. Can we be sure that the Kerry sticker was not just coincidental to the general sticker rule.


Posted by: steve smith at August 30, 2005 09:53 AM
Comment #76276

Steve,

This is old news, but here you go.

Posted by: Burt at August 30, 2005 10:05 AM
Comment #76277
My problem with campus speech codes and the growing political speech code is that we as a society must couch everything we say and do in terms of political correctness.

Matt, my problem with these arguments, is when did a college campus or a political ad become “all of society”? It Yes, different places have different acceptable practices. But you’re free to shout any politically incorrect remark you want on any street corner in America. You might get your butt kicked for it, but I trust you won’t get arrested.

Posted by: Burt at August 30, 2005 10:12 AM
Comment #76279

In his 1991 book on the changing campus environment, Illiberal Education: The Politics of Race and Sex on Campus, Dinesh D’Souza noted:

“Universities are a microcosm of society. But they are more than a reflection or mirror; they are a leading indicator”

I’m going to respectfully disagree with the premise here. With a student body composed on only high school graduates (and only those with good grades), and employees (the visible ones anyway) with advanced degrees, universities are hardly a “microcosm of society.” As anyone who has every stepped foot in a college town will tell you, there’s a huge “town-gown” divide. Not to mention that their supposed “liberal bias” certainly doesn’t appear society-wide on election day.

Rather, universities are a great place in America to go for intellectual experimentation and confront bizarre ideas. “PC” is just another one of those bizarre ideas.

Posted by: Steve at August 30, 2005 10:19 AM
Comment #76292

Matt Johnston-
What is your opinion on Bush’s call to ban 527s, then? Do you think he erred in suggesting that that sort of organization be eliminated?

As for Speech codes, I don’t think publically funded universities should have them. A Private university can do as it pleases, though, with the caveat that they can lose good paying customers by what they do.

I think the main reason for bringing this up is that these unfortunate rules embarrass liberals. Frankly they do. But to embarrass somebody like that, you must confront them with something they are not comfortable with, something they don’t really agree with.

Ergo, it’s just a wedge issue, and it doesn’t need to be dignified as a descriptive of the beliefs of all liberals.

Posted by: Stephen Daugherty at August 30, 2005 11:48 AM
Comment #76311

Stephen:

You suggest that a private university can impose whatever rules it wants to on speech. Taking that position into account, then a private company could do the same (since a private company and a private educational institute are essentially the same thing).

In that event, the story that Burt linked to about the woman being fired for having a Kerry sticker would be acceptable to you, wouldnt it?

Personally, I think its a highway paved to hell if we allow private or public organizations to ban free speech. I’d have thought you’d think the same thing, from what I’ve read of your thoughts in WB.

Have I misunderstood your position?

Posted by: joebagodonuts at August 30, 2005 01:04 PM
Comment #76326

Matt Johnston,

I read the whole post, and you got it wrong. Washington state law requires that all political ads disclose who paid for the ad. The “regulation” you mentioned in the judge’s ruling was regarding disclosure of who paid for the ad, not a limit on the content of the ad itself. As such, it was not a limitation of what was said.

Posted by: ElliottBay at August 30, 2005 01:44 PM
Comment #76327

THANK YOU LIBERALS,ONCE AGAIN, FOR PROVING ON A DAILY BASIS THAT LIBERALISM IS A MENTAL DISORDER!

Posted by: BOB RYMOS at August 30, 2005 01:47 PM
Comment #76346

Nope, Politics isn’t the next venue for a speech code:

http://www.law.com/jsp/article.jsp?id=1125318960389&rss=newswire

And it’s not the Left doing it either.

Posted by: Jarandhel at August 30, 2005 03:20 PM
Comment #76383

Politics next venue for a Speech Code? There has been a Political Speech Code in place since the late 1950’s. Known as “New Speak”, elected Federal Politicians (Including all of our Presidents both Republican and Democrat) have been using this code to communicate with The “Elite Insiders”, who are in the know of Washingtons closed door policy making decisions!Through the use of this code, messages are conveyed to the “Elite”, while a completely different messeage is conveyed to everyone else. The message conveyed to the Elite is the Real meaning, while the message conveyed to everyone else is a False meaning! Having two family members who have worked in the White House directly with past President’s, and other family members who have worked indirectly in order to carry out policy, this code has been confirmed to me. It is also described in detail and how it can be understood in the National Bestseller “The Rich and The Super Rich”, by Ferdin and Lundberg!
There is also a reason why college Campus Political Science Instruction swung to the far left in the 80’s. I know the answer to this too, but it is a long story in, and of itself!

Posted by: Rob Martin at August 30, 2005 06:30 PM
Comment #76390
THANK YOU LIBERALS,ONCE AGAIN, FOR PROVING ON A DAILY BASIS THAT LIBERALISM IS A MENTAL DISORDER!

Yes, of course! If everyone adopted the “I’ve got mine, screw the rest of ya” mentality, the world would be far more psychologically healthy.

Posted by: Taylor at August 30, 2005 06:48 PM
Comment #76402

Joe-
I said they had greater discretion along those lines, but I do see where you could get the wrong idea about my beliefs from that passage.

However, Keep in mind that I said publically funded universities shouldn’t have them, that many liberals don’t like them, and that because of the very nature of how conservatives use it, the successful use of that point logically indicates that liberals do like it themselves.

It would be strange for a person who likes the idea of speech codes to defend his party as largely offended by the idea.

I think language is too fluid to be so trapped by laws and regulations. Time, place and manner are another story. We had a whole class, I think a required one, at my school that looked at nothing but the laws governing telecommunications, and one important issue was what was and was not protected as free speech. There are reasonable expectations at any university, and I think they should have the power to enforce those. They should also be willing, though, to allow academic freedom to remain open. Artificially imposed consensus is just disillusionment waiting to happen in the real world.

Posted by: Stephen Daugherty at August 30, 2005 07:47 PM
Comment #76501
the successful use of that point logically indicates that liberals do like it themselves.

do not like them. Pardon me.

Posted by: Stephen Daugherty at August 31, 2005 09:50 AM
Comment #76533

Political correctness is nothing more than “New Speak” al la 1984
Funny how the Left seems to think that tis us on the right that would like to limit things such as free speech, when they regularly attack talk radio as “hate speech” and are actively trying to get the plug pulled so that the Hildabeast can run in 08’

In reality the manta of the left should be: “Well, communism has only killed over 100 million people, let’s give it one more chance!”

I Looking forward to the revolution when the seditious and treacherous are made to pay for their crimes.

May God almighty save the United States of America from those who would destroy her.

Sean

Posted by: Sean at August 31, 2005 11:27 AM
Comment #76540

Matt —

It’s refreshing to hear a defense of free speech coming from the Red side of the page. You’re right, attack ads are nothing new and they’re not going to go away, because ours is a confrontational society. Would it be better if we could all play nice? Yes. Should we legislate that? HELL, NO.

The Left rails against legislating morality while hoisting the hideous Orwellian flag of political correctness. The Right pays a lot of lip service to the First Amendment while destroying the credibility of anyone who dares speak out against them. In this, the protection of our right to express ourselves, we should be united and consistent, because every time we allow our right to speak to be infringed, we lose some of the ability to protect our other rights as well.

Posted by: Alejo at August 31, 2005 11:53 AM
Comment #76571

I agree that policitical correctness was an invention of the left. It was born of concern about sensitivities of disadvantaged minorities and expanded to include a host of liberal causes. The shoe is now on the other foot. Liberal ideas are met with a barrage of invective from the right in a parallel attempt to suppress speech which goes against conservative initiatives. Look at the rage at which the right met Cindy Sheehan’s speech, the Swiftboat Vets attach on Kerry, the attacks on Joe Wilson, Richard Clarke, etc., not to mention the firings and demotions mentioned above.

That’s what I like about this blog: critique the message, not the messenger. Political correctness attacks the speaker for even expressing the idea, rather than dealing with the idea directly.

I don’t think the case Matt Johnson cites is an example, however.

Posted by: Mental Wimp at August 31, 2005 01:14 PM