Government Speech, Corporate Speech, Citizen Protests, and the Hitler Card

Right and left, activists in California are organizing against publicly honoring people they don't like:

"Assembly Democrats attack children's innocence, parental rights," the headline of a recent press release from declares, attacking a bill establishing a day of recognition for Harvey Milk and exhorting the governor to veto it (as he did last year.)  "The Democrat politicians are telling schoolchildren to honor a sexual predator of teens, a homosexual sex addict who advocated polygamous relationships, and a public liar who justified his deceit," SaveCalifornia president Randy Thomasson fulminates.

Thumbnail image for shockley park.jpgMeanwhile, the NAACP and ACLU are protesting a decision by the Auburn, California parks board to accept a gift of land establishing a park named after late Nobel laureate and eugenicist William Shockley and his wife.  "It is an insult to people of color and anyone in the Placer area with an IQ under 100," Jim Updegraff, chair of the ACLU's Sacramento chapter declared, playing the Hitler card.  "Would (the parks board) have accepted land to be named after Adolf Hitler?  (If only Adolf Hitler had been no worse than William Shockley.)                                                    

Of course, the First Amendment is on the side of the protesters in these controversies.  (The state has power, not rights; the people have rights to restrict state power.) From the ACLU's perspective, it is standing up for free speech in organizing against the Shockley Memorial Park: "This act of petitioning the government is not just consistent with the First Amendment, it is in fact an exercise of core free speech values," Alan Schlosser, Legal Director of the Northern California ACLU stresses.            

That's a legally accurate statement, obviously.  And the ACLU regularly petitions the government, when it engages in lobbying at the state and federal level.  But generally its lobbying efforts are aimed at securing rights and liberties - none of which are at stake in the Shockley Park controversy: it involves a content-based protest of government speech  which, unlike government mandated speech about the alleged dangers of abortion (for example) does not infringe on the exercise of any individual rights.  The decision of a civil liberties group to organize a protest like this is problematic, (as a matter of policy, not law) precisely because it entails choosing sides in a political dispute over the content of speech, instead of acting as a neutral arbiter or guarantor of disputant's rights on all sides.                                              

Taking sides, the ACLU also effectively suggests that government decisions to memorialize controversial figures should be determined by citizen protests and either the reality or appearance of majority rule, which could put the organization in the awkward position of implicitly approving decisions denying recognition to a gay rights leader or extending it to a racist, so long as the decisions enjoyed majority support. That, however, is democracy. How might legislators fairly resolve these controversies without consulting the majority?                  

But apply this principle of majority rule over the content of government speech to disputes over the content of corporate speech, and you confront the interesting, complicated questions of de facto marketplace censorship raised by both corporate control of speech and citizen protests of that control, like boycott threats against Glenn Beck's advertisers, (partly reflecting outrage over Beck's comparisons of Obama to Adolf Hitler) or protests of Pat Buchanan's apologies for (who else?) Adolf Hitler, or demands that CNN bar Lou Dobbs from appearing at an anti-immigrant rally.                                                                                                   

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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