What the Election Results Mean for the First Amendment

Troubling times could lie ahead for free speech and the First Amendment in the wake of Tuesday’s election. With so many political analysts saying that “values” played a major role in getting Bush re-elected and giving the GOP more seats in Congress, I think there’s a good chance that the pro-censorship crowd will come knocking asking for a payoff. Various Christian conservative and “pro-family” groups will lobby for increased indecency / obscenity enforcement efforts. Here’s how that might play out by branch of government:

Congress:
We’ll see ongoing effort to expand indecency fines and regulations. This effort really heated up with the Janet Jackson Super Bowl incident last year, but it will continue well into the next session. Fines are going to go up and some members will start to put more pressure on the FCC to consider license revocation too. I doubt anyone will lose their licenses, but the very threat of license revocation will result in indirect censorship of broadcast television and radio. In other words, more shock jocks will get laid off or move to satellite radio before they do.

Meanwhile, we will see the resurrection of an amendment introduced in this past session of Congress that would have imposed indecency regs on cable and satellite providers. The Breaux Amendment, which would have rolled all the old indecency regs onto subscription-based media, only missed passing by one vote in the Senate Commerce Committee last Spring. House Commerce Committee Chairman Joe Barton (R-TX) has already promised to pursue this effort again. I think they will pass a law eventually that does attempt to censor at least basic cable TV networks and possibly satellite radio too. This will set up the most important judicial challenge to federal indecency regulations since the Pacifica case in the 70s.

Finally, it is possible that the “media accountability” bandwagon will start rolling again. In the 107th Congress, “The Media Accountability Act” was given serious consideration and had a lot of bi-partisan support. The measure would have imposed federal standards on electronic advertising and marketing activities, such as ratings on video games. Don’t be surprised if this pops back up this session.

Executive Branch:
The FCC will continue to take its marching orders from Congress on the indecency front and hand out more (and greater) fines. But watch for a renewed effort to expand “public interest” obligations on broadcasters too. You wouldn’t think Republicans would join in a crusade to impose more obligations on business, but in this case their hatred of the supposed liberal media leads them to do some particularly un-capitalistic things.

In particular, pay attention to the continuing intersection of campaign finance law and communications regulation. Increasingly, lawmakers are threatening to use communications regulations to achieve campaign reform goals, like “equal time” rules or free airtime for political ads. At the end of the day, these are just back-door speech controls on broadcasters. The pre-election dispute over Sinclair foreshadowed where we might be headed.

Equal time regs or free airtime mandates would be bad enough; a reinvigorated Fairness Doctrine would be a nightmare. Luckily, most Republicans in Congress and the administration oppose the re-imposition of the Fairness Doctrine, if no other reason than it might negatively impact their beloved Rush Limbaugh. So, hopefully we won’t have to worry about that.

But one thing we might have to worry about is expanded DOJ obscenity crackdowns in the form of a “war on porn.” (I don’t know who in the DOJ has the job of reviewing all the evidence in this “war,” but that must be a fun job!) With John Ashcroft rumored to be departing, however, it remains to be seen if the next head of the agency (Rudy Giuliani?) will pursue such a crackdown. But Ashcroft already got things started and whoever is next will likely follow through on this to make social conservatives happy.

Courts:
With Supreme Court Chief Justice Rehnquist’s health failing, people are starting to wonder what a Chief Justice Scalia or a Chief Justice Thomas might mean for the future direction of the court. Actually, the more important question is who Bush appoints once other seats start to open up. While I’m concerned about the direction Scalia or Thomas might attempt to steer the court on free speech issues, let’s not forget that most of the Supreme Court jurisprudence on this front has been pretty good since the mid-90s. (Consider the CDA, COPA, the Playboy case).

What Ever Happened to the Democratic Party?
The most interesting question to be asked at this point is: Will the Democratic Party stand up and assert themselves as the party of free speech and the First Amendment, or will they go along with the agenda set by social conservatives in the Republican Party?

In the wake of another close election lose, a lot of pundits are saying the Democrats need to find a way to better define themselves to win back the hearts and minds of the electorate. Well, here’s the perfect opportunity for Democrats to define themselves and set themselves apart from Republicans.

But do Democrats want to define themselves as the Party of Free Speech any longer? It used to be the case that you could count on the Democrats to be there standing up for the First Amendment. Increasingly, that’s no longer the case. When you see the likes of Hillary Clinton and Joe Lieberman joining forces with social conservatives like Sam Brownback on many of these issues, you have to wonder if the Democrats have just decided to roll over and play dead on this issue. Perhaps they believe they can win over some of the social conservatives by doing so. Who knows. All I know is that free speech could be in some serious trouble over the next four years unless the Democrats rediscover their principles and hold the line on efforts to water-down our First Amendment rights.

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