Last week I blogged excitedly about the GOP’s position on campaign finance reform in their 2012 platform. Unfortunately, I titled the blog post “Free Speech Gets Its Due on the Republican Platform.” As far as campaign finance goes, this is correct, but there is still room for improvement in the broader sense.
First, the platform calls for “vigorous” enforcement of anti-pornography laws. This is not so bad, when taken in context:
The Internet must be made safe for children. We call on service providers to exercise due care to ensure that the Internet cannot become a safe haven for predators while respecting First Amendment rights. We congratulate the social networking sites that bar known sex offenders from participation. We urge active prosecution against child pornography, which is closely linked to the horrors of human trafficking. Current laws on all forms of pornography and obscenity need to be vigorously enforced. (Emphasis added.)
Professor Eugene Volokh deftly breaks down the likely outcome of the last sentence if it’s acted upon. Most starkly, Volokh opines that the only way vigorous enforcement could work is by mandating “nationwide filtering” on the Internet. Regardless of where one stands on pornography as speech, “How can the government’s policy possibly achieve its stated goals, without creating an unprecedentedly intrusive censorship machinery, one that’s far, far beyond what any mainstream political figures are talking about right now?”
I agree with Volokh’s assessment, but think the qualifiers in the rest of the paragraph whittle down the teeth of the last sentence. The platform does not call for laws that would force internet providers to do anything, congratulates the efforts of social networking sites to keep out sexual predators on their own prerogative, and does not propose any new laws whatsoever. In fact, the most proactive sentence in the paragraph calls for government action against child pornography. People may certainly advocate that child pornography is protected (and I freely opine that people who say such things are subhuman gutter trash), but there are no First Amendment problems with prosecuting child pornographers: “documenting” such exploitation of children has about as much of a “speech” element to it as a snuff film, that is, none at all.
Nevertheless, we should heed Volokh’s concern: a serious crackdown on pornography would be more foolish than the Drug War and Prohibition, and those are pretty hard to top. To be effective, that crackdown would likely chill or censor a lot of speech that no one considers pornographic.
Although pornography is an area of concern, there’s one major First Amendment issue that I do not compromise with and has no qualifiers in the GOP platform: flag burning. The GOP resuscitates the issue, which has come up sporadically since the 1990s when it was all the rage following a 1989 Supreme Court decision:
The symbol of our constitutional unity, to which we all pledge allegiance, is the flag of the United States of America. By whatever legislative method is most feasible, Old Glory should be given legal protection against desecration. . . . .
Free speech means different things to different people, and nothing quite brings that out better than flag burning. Opponents will rightfully call the Republicans hypocrites for including this language in the same section of their platform where they state “We oppose any restrictions or conditions that would discourage Americans from exercising their constitutional right to enter the political fray or limit their commitment to their ideals.” However, many of these same progressives gleefully cite to Justice John Paul Stevens’s dissent in the Citizens United case, where he argued that prohibitions on corporate and union political speech were constitutional. The same Justice Stevens dissented in the Texas v. Johnson flag burning case, and concluded that “[t]he prohibition would be supported by the legitimate interest in preserving the quality of an important national asset. Though the asset at stake in this case is intangible, given its unique value, the same interest supports a prohibition on the desecration of the American flag.”
The principles behind the American flag, like free speech, are sacrosanct. These principles are so strong that they transcend their symbols, and their importance is dwindled if we consider their survival dependent on symbols. But that’s what the GOP believes when it calls for legal prohibitions against flag desecration. Even if flag burning is a statement calling for the destruction of the United States, that speech is protected. Take it from Thomas Jefferson, who said this in his first presidential inaugural address: “if there be any among us who would wish to dissolve this Union, or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated, where reason is left free to combat it.”
Campaign finance is currently the most contentious area of free speech. It certainly keeps us busy. But there is much more to free speech, and unfortunately the unequivocal words that “Congress shall make no law . . . abridging the freedom of speech” are still selectively applied.