Down with the First Amendment

By John Nichols, The Nation. Posted March 2, 2005.

What is the issue on which congressional Democrats are least likely to take a bold – and appropriate – stand?

War and peace? No. More than 126 House Democrats voted against the use-of-force resolution that President Bush used as an excuse for the invasion of Iraq, as did 21 Senate Democrats. Some 118 House Democrats and 11 of their Senate colleagues had the courage to vote against the continued funding of the war – not because they do not "support the troops" but because they want to get the troops home alive.

The Patriot Act? No. While U.S. Sen. Russ Feingold, D-Wis., was the only Senate Democrat who opposed the Patriot Act, 62 House Democrats opposed that assault on the Constitution and the majority of House Democrats have since backed resolutions to address the law's worst excesses.

Freedom of speech? Yes. When the House voted in mid-February on the so-called Broadcast Decency Enforcement Act, only 36 Democrats took the side of the First Amendment. They were joined by one independent, Vermont Socialist Bernie Sanders, and one Republican, Texas renegade Ron Paul.

The vast majority of House Democratic Caucus members – they're the ones who are supposed to "get" the First Amendment at least a little bit better than their Republican colleagues – sided with House Majority Leader Tom DeLay, R-Texas, and his merry band of crusaders for censorship.

Don't let the bipartisan support for this measure cause you to think that this was an inconsequential measure. The draconian assault on the rights of artists and communicators to express controversial views was broadly opposed by unions representing the creative community. Under the provisions of the measure, an individual talk-show host, filmmaker, musician or on-air commentator could be fined as much as $500,000 for producing an image or expressing a point of view that is considered "indecent" by censors at the conservative-controlled Federal Communications Commission.

Additionally, broadcasters could be fined as much as $500,000 under the measure, a threat that assures that doors will be closed to controversial artists as a new era of self-censorship unfolds.

If the measure becomes law it will, in the words of U.S. Rep. Jan Schakowsky, D-Ill., "put Big Brother in charge of deciding what is art and what is free speech. We would see self – and actual – censorship rise to new and undesirable heights."

Schakowsky was one of the courageous 38 House members who voted "no." She was joined by many thinking progressives, including the sharpest observers of media issues in the chamber, U.S. Rep. Maurice Hinchey, D-N.Y., U.S. Rep. Diane Watson, D-Calif., and Sanders.

Noting that the fear of fines had already led 66 ABC-TV network affiliates to decide last year against showing the internationally acclaimed World War II film Saving Private Ryan, Sanders said, "Free [e]xpression and First Amendment rights are the real target of this legislation. Ironically, we already have television stations refusing to air a film about the sacrifice of America's Greatest Generation to preserve freedom because of the danger of arbitrary fines that the FCC imposes under its overly vague so-called 'indecency standard.' Vastly increasing the fines to $500,000 will only escalate this dangerous cycle of self-censorship, particularly (by) small broadcasters who could be bankrupted by a $500,000 fine. This is not what America is about."

Unfortunately, most Democrats appear to believe that censorship is what America is all about. House Minority Leader Nancy Pelosi, D-California, voted for censorship, as did 161 other members of the opposition party that is supposed to take civil liberties more seriously than does the Republican majority.

In fairness, some prominent Democrats did choose the Constitution over political expediency. U.S. Rep. John Conyers, the Michigan Democrat who is the ranking minority party member of the House Judiciary Committee, and U.S. Rep. Henry Waxman, D-Calif., another House veteran with a long record of defending free speech rights, were among the proud if somewhat lonely foes of censorship.

Waxman echoed the concerns of thinking members of Congress when he said, "No one knows when one person's creative work will become another person's definition of a violation of indecency."

Sanders made an equally appropriate point when he explained that, "The specter of censorship is growing in America today and we have to stand firmly in opposition to it. What America is about is not necessarily liking what you have to say or agreeing with you, but recognizing your constitutional right to say it. Today, it is Janet Jackson's wardrobe malfunction or Howard Stern's vulgarity. What will it be tomorrow?"

While the import of Sanders' question should be obvious, most Democrats answered that they simply did not care.

Talk about indecency!

John Nichols is The Nation's Washington correspondent.

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