This is an example of Nat Hentoff's take on the matter:
Liberal Trimmers of the First Amendment
By Nat Hentoff
In 1989 I began to understand which way the wind was blowing when Canetta Ivy, a leader of the student government at Stanford and a major in African American studies, declared: "We don't put as many restrictions on freedom of speech as we should."
Not long afterward, an ecumenical letter appeared in the Stanford Daily signed by the African American Law Students Association, the Asian American Law Students Association and the Jewish Law Students Association. They sternly called for harsh penalties for offensive speech.
Traveling to various campuses, public and private, I heard from students who had stopped asking such questions in class as whether affirmative action should enfold the children of black middle-class parents. These students preferred to escape into silence rather than being called racist. Some of that is still going on.
The relentless trackers of bad speech, on the faculty and in the student body, were and are predominantly liberals. In my younger days, punitive contempt for the wrong kind of speech came from such warriors of the right as J. Edgar Hoover. When I finally got my FBI files, they were full of articles I had written and petitions I had signed against the Vietnam War -- some of them sent directly to the ever-vigilant director of the bureau -- with sulfurous notations from field agents about my offensive language.
These days, the political and religious right still attack offensive expressions. They make themselves vigorously heard concerning books in school libraries that tear asunder family values, inflammatory rap recordings and perniciously infectious television programs. Some of these watchdogs say they don't intend to censor; their aim is to censure. But they clearly want to censure their targets out of existence.
Meanwhile, liberal critics of the First Amendment are growing in number and influence. In a recent issue of the Columbia Journalism Review, Floyd Abrams -- who has litigated many First Amendment cases in the Supreme Court and is a sturdy supporter of James Madison -- has written, "Look who's trashing the First Amendment."
He cites a declaration by the Nation -- a proudly liberal magazine -- that the First Amendment is being used "to thwart progressive reforms such as caps on campaign spending, public access to the airwaves, and regulation of cigarette advertising." In all these battles, the Nation complains that "the wrong side kept winding up with the First Amendment in its corner."
Yale Law School professor Owen Fiss is also among the liberal trimmers of the First Amendment referred to by Floyd Abrams. "To serve the ultimate purpose of the First Amendment," says Prof. Fiss, "we may sometimes find it necessary to restrict the speech of some elements of our society in order to enhance the relative voice of others."
Fiss was speaking of the need for restrictions on campaign expenditures. But who will draw these exclusionary lines determining who can express his or her view by contributing? The trusted government, of course, against whom the First Amendment was intended to provide protection of expression.
Another believer in using the good faith offices of government to "enhance" the distribution of free speech through regulation is University of Chicago law professor Cass Sunstein. Writes Floyd Abrams: "According to Sunstein, the government should . . . be permitted to require the news media to provide a 'right of reply to dissenting views'; and to impose in public universities significant limitations on 'hate speech' on campus."
For government to mandate that the press provide "a right of reply" requires government involvement in the content of the press. This prospect might well win a large majority vote from the American people, but the First Amendment was not intended to be subject to a vote -- or to a revision by a law professor. As Chief Justice Warren Burger said in Miami Herald v. Tornillo (1974), the First Amendment forbids government "intrusion into the function of editors."
Floyd Abrams, aware of the decline in liberals' understanding of the First Amendment, emphasizes: "It is at the very heart of the First Amendment to deny government the authority to pick and choose among speakers and messages, determining that some may and others may not be heard -- and how often."
In 1989, Canetta Ivy, insisting that the First Amendment is too generous in its protection of speech, may have been anticipating a bipartisan Zeitgeist. Conservatives and liberals -- though different in their priorities and strategies -- are uniting in wanting to restrain freedom of expression. For the greater good of the greatest number, of course.
--- --- --- --- --- --- --- ---
This column was published on January 17, 1998.
Nat Hentoff's column appears in the Washington Post
Click on ThinkLinks to read more by Nat Hentoff.
© Copyright 1998 The Washington Post Company
gis.net |
