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

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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 SaveCalifornia.com 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.                                                                                                   

Privately organized boycotts and other campaigns to pressure corporate media obviously enjoy First Amendment protection; you might even describe them the way ACLU describes the Shockley Park protests, as "exercises of core free speech values."  But as an official (and often ignored) ACLU policy suggests, protests by private pressure groups sometimes effectively restrict rather than expand the marketplace of ideas.  Naturally, liberals tend to be sensitive to this problem when boycotts threaten liberal speech while conservatives are sensitive to it when boycotts threaten conservative speech, which is why the ACLU's traditional role as an honest broker of free speech disputes is so essential.  In fact, ACLU policy requires the organization to "call attention" to the dangers of private protests, even as it affirms the right to engage in them:     

Defending the right of all to advance their points of view by whatever nonviolent methods they may choose, however, does not mean that the ACLU should refrain from objecting when the likely consequences of private pressure group activities would be inimical to civil liberties, and particularly if the consequences would be to restrict a free and diverse marketplace of ideas. Under such circumstances, the ACLU will call public attention to the dangers of such consequences.                                           

 
Are there dangers in liberal boycotts of Glenn Beck's advertisers?  Did the furor over Don Imus's cracks about the Rutger's women's basketball team, resulting in his 2007 firing by CBS, restrict or expand the marketplace of ideas? Civil libertarians argue endlessly about the wisdom or desirability of private protests aimed at silencing hate-mongers, lunatics, or provocateurs who enjoy corporate support: "There is something disturbing about the fact that the self-appointed PC police have accumulated sufficient power to cause talk-show hosts to look warily over their shoulders every time they say something remotely offensive," my friend Harvey Silverglate wrote lamenting protests by "the would-be censors of  'hate speech.'" 

I share his concerns about speech policing but doubt that it poses an appreciable threat to many provocative talk show hosts, whose popularity is directly proportionately to their offensiveness.  Besides, in the battle between private citizens groups and private corporate media there are de facto censors or "would-censors" on both sides, exercising their respective First Amendment rights to engage in content based discrimination against speech.  When media moguls decide what to air and who to hire and fire, whether they act in the interests of corporate profits or their own partisan ideologies, they do not act as disinterested civil libertarians, aiming to extend everyone's right to speak.  Are private corporations better defenders of a healthy, diverse marketplace of ideas than ideologically driven private citizen pressure groups?  As I've noted before, that is not a rhetorical question.

Photo Credit: Flickr User Marcin Wichary


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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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