Abridging too far?


Well, way to get myself into trouble, but hey, that rarely stops me, so here goes.

America lumbered itself with two amendments to the Constitution which have had a crippling effect on it ever since. Don’t want to talk about the Second Amendment here, since, with every individual citizen becoming his or her own unregulated militia, with 300 million guns and thousands of gun deaths every year, it was self-evidently foolish. Could Thomas Jefferson be brought into the future to have a look at how it was interpreted he would rush back and considerably change the wording.

So, Second Amendment obviously bad, but First Amendment seems to be universally accepted in the Western world generally, unquestionably good. Here it is:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Let’s break it down into components. The first part is excellent, and, for its time, brave and radical. Religion still had enormous influence on governments in Europe (and even more so elsewhere), and it was a remarkable step for this remarkable bunch of people to say “We want none of that here”. They would of course also be horrified at the religious influence on government in 2012, and may have want to rethink the “free exercise of” clause, but that’s another story. “Petition the government”? Yes indeed, again far-sighted and radical in the context of the autocratic and oligarchic governments of the Old World. In today’s world, in practice governments have found ways to ignore petitions, and conversely petitions can be corrupted (especially in the internet age) by astroturf groups and media. Essentially the idea of a petition by the citizens has been corrupted to the extent that it is no longer the safeguard envisaged in the eighteenth century, when individual citizens signed their John Hancock’s with quill pens on pieces of paper.

Not doing too well are we. I know, let’s try “peaceably assemble”. Another bold statement in the context of thousands of years of rulers suppressing “peaceful assemblies” of citizens by sending in the soldiers to cut them down or shoot them, and capture the ring leaders then have them hung drawn and quartered, hung in chains, or, if the ruler was feeling benign, beheaded. None of that for America, the citizens had a problem with the government they could assemble, perhaps carrying a petition, and let them know. Such a far-sighted move, but again, Jefferson would be horrified if he could see the response to “peaceful assembly” today in America and elsewhere. Protests banned, people with tee shirts with messages refused entry to events, protesters shut into pens far away from the place where the president will be, police (and indeed, in Europe once again, troops) dressed in full riot gear and with horses, water cannon, tear gas, pepper spray, breaking up demonstrations. We have ways of making you not talk.

Well, that just leaves one (or two I suppose), and it is the one which has become engraved in stone as the rock solid core of what America is about, what most western democracies are about, and what protesters in many other less democratic countries aspire to. Nobody, it seems, questions its utter goodness. Except me.

Let me draw your attention to: “Buckley v. Valeo (1976) upheld limits on campaign contributions, but held that spending money to influence elections is protected speech by the First Amendment.” and “Citizens United v. Federal Election Commission (2010) the Supreme Court of the United States held that corporate funding of independent political broadcasts in candidate elections cannot be limited under the First Amendment.” And now a billion dollars to elect a president? “Super Pacs” running unlimited attack ads full of lies? Koch brothers setting up astro turf groups? What say you, President Jefferson, this how you thought it would work out?

I used to be all in favour of a Bill of Rights, or a more prescriptive Constitution, for Australia, but watching the American Supreme Court tie itself, and the country, in knots because of a particular word written 230 years ago, I no longer am. The Law, when faced with indelible words on a sacred document, is quite often a Ass.

But it’s even worse than that. When the words were written the “press” was a small number of newspapers produced on printing presses. this “free press” clause meant that individuals could write and publish freely even strong denunciations of the government’s behaviour collectively or individually. Not true in Britain for example, right through the nineteenth century (poor old innocent , naive Leigh Hunt, for example, in 1813, wrote an attack on the Prince Regent in a newspaper he and his brother published, based on substantial truth, and was subject to prosecution and a sentence of two years’ imprisonment. His brother the same). So, yes, freedom of the press, right on, well done Founding Fathers.

Except, except, just as a well thought out law about militias armed with muskets in case the British ever came back was turned into a nightmare of mass killings by school kids with the availability of automatic pistols, AK 47s, and rocket launchers available in drug stores, so did the “freedom of the press” become overtaken by events. No way Jefferson, cosily reading his local newspaper at breakfast could possibly have guessed at the development of radio, tv, and the internet. Nor could he have guessed at the way a few giant corporations, each led by men who had no interest in the democratic traditions of America, would come to dominate every source of information available to citizens in 2012.

Nor could President TJ have pictured the way these owners of the media would employ hate filled individuals, give them bully pulpits to spout their bile to millions, in order to move the whole political landscape over to where they wanted it, and bugger the destruction of the political conversation of the citizens. Same pattern in every western country. In Australia the ubiquitous Mr Murdoch owns 70% of the newspapers, including almost every leading newspaper in all the major cities. A small number of companies own the three commercial tv networks. Radio is similarly restricted in its ownership.

The phrase “Freedom of Speech” was almost certainly written with “political speech” in mind. No one was going to abridge the people talking about , say, farming, or trade, or technology. But in the Old World, saying the wrong thing about a king or his ministers or their actions or policies, and you would find yourself abridged into prison or onto the gallows. Jefferson and his friends were determined that this wouldn’t happen in America. More positively they believed that in the free expression of ideas, in the contest for ideas, in wide-ranging political discourse in which everyone had the right to express an opinion without fear or favour, speaking truth to power, would come the people expressing their will. This is still the idealised view expressed in all western democracies (most recently in the Australian context, in the decision to allow the abhorrent Geert Wilders a visa to visit Australia. The immigration minister, Chris Bowen, said, in a statement which Jefferson would have applauded “‘I think our society’s robust enough, our multiculturalism is strong enough, and our love of freedom of speech entrenched enough that we can withstand a visit from this fringe commentator from the other side of the world. We should defeat his ideas with the force of our ideas and the force of our experience, not by the blunt instrument of keeping him out of Australia.’”

But as with the rest of the First Amendment, the problem is the unforeseen way that it would be used 230 years later in a different world. The problem is in America, to be more specific, the deadly duo political operatives of Atwater and Rove. They realised that if you could say anything you like, then, with the blessing of the Constitution you could tell lies, heap shit on your political opponents, destroy them by any means you could find. Think “Swift Boating” think Max Cleland, think Obama’s birth certificate, and on and on. Politics as total war. Policies? Ability of candidates? So old fashioned, who do you think you are, Thomas Jefferson? In Australia the Liberal Party operatives watched and learned. Politeness? Civility? Mutual respect? Policy discussion? All out the window, America, a new light on a new hill lit by Karl Rove, had shown the way for conservatives to win elections even when the majority of the public disapproved of conservative policies had they known about them.

Meanwhile, in parallel, the likes of Rupert Murdoch and similar media moguls had also realised that if you could say anything you liked they would hire people who were prepared, for a good fee, to say anything at all. That there was an audience for nastiness. That these shock troopers (sorry, jocks) of the Right could work hand in glove with a Karl Rove war on the Left, both amplifying the lies he was telling, and creating a public discourse which was moving ever closer to that of a seedy bar where drunks argued late at night. It was a slippery slope (and was made worse when the conservatives managed to get the “Fairness Doctrine” scrapped as a restriction on free speech). To compete for a Tea Party audience which clung to guns and god, the shock jocks (Coulter, Hannity Malkin, Beck, Limbaugh, O’Reilly) had to be ever more outrageous, ever more vicious, ever more malignant. Same with the politicians. What once seemed (and was) outrageous (like the attacks on Cleland and Kerry) began to seem like Lincolnesque politics as the Tea Party (not coincidentally) grew and prospered, and politicians like Palin, Bachmann, Brewer, Brown, Akin worked for re-election while standing in the gutter.

Same in Australia. The parliament has had the conservative Opposition screaming abuse across the chamber in a way that could never have been imagined before 2010. Then going out to press conferences, or publicity stunts, where they simply told lies dutifully noted down verbatim by reporters, because, you know, free speech. And all the while the Australian shock jocks, modelling themselves, like the politicians, on their American counterparts, also became ever more abusive.

Australia of course doesn’t have a “freedom of speech” written in black letters on parchment. In practice though there have been really only two limitations on “free speech” – the laws of defamation and libel, and the Racial Discrimination Act (a recent notorious case discussed here), and they make little impact on what we are talking about.

This all, in a sense, came to a head in Australia in the last few days (which stimulated me to write about the general issue). One of the shock jocks, broadcasting for many years, who has made a habit of attacking our female prime minister in vicious terms, accusing her of constantly lying (and encouraging the use, generated I think by one of his viewers, of the name JuLiar, instead of, you know, Prime Minister or even Julia Gillard), saying she should be put in a chaff bag and dumped at sea, organising and taking part in protests where there were signs referring to “Bitch” and “Witch”, has recently stepped over an invisible line.

At a fund-raising dinner for “Young Liberals” (plus some federal and state Liberal politicians) he gave a speech in which he again said the prime minister constantly lied, that all her cabinet knew she constantly lied, and that her father (who died a few weeks ago, aged, I think, 82, and who of course was enormously proud of his daughter the PM) who she loved dearly, and for whom she was still grieving had “died of shame because his daughter was such a liar”. The audience laughed their heads off (except, presumably, the senior politicians, who had, it would turn out later, heard not a word). After the speeches a number of “amusing” political items were auctioned including a coat made out of chaff bags (geddit?).

Now all this only came to light because a reporter from News Ltd had the initiative to sign up to go to the dinner, pay his fee, unquestioned, and record the speech. As soon as his paper published the transcript, and the recording was made available, social media erupted in a storm of protest. It was a case, it seems, where the old adage “your right to swing your arms ends just where the other man’s nose begins”. Oh other shock jocks and conservative politicians quickly rushed to his defence, muttering about freedom of speech and so on until, by the end, it seemed the whole thing had been the Prime Minster’s fault, and the shock jock himself was the real victim. Such has our political discourse been coarsened, that such offensive nonsense passes for normal, almost unremarked. But for the rest of Australia wasn’t buying it. At some point it seemed, the “normal” offensive shock jock speech, bellowed out every day on our airwaves, filling our newspaper columns, increasingly appearing on tv, which we had grown resignedly used to, had crossed a previously invisible line. The public may not have known much about shock-jockery, but they knew what they didn’t like.

I can understand conservative politicians and opinionators screaming about “freedom of speech”, a toxic political atmosphere suits their agenda, but what about the ordinary citizens who did the same this time? It is often said that poor people vote for rich people, vote for tax cuts for them, because they believe one day they will be rich and then the tax cuts will apply to them. The rich exploit this. Same with “freedom of speech”, people imagine themselves in the Gulag, or facing the Inquisition, and think that they might need a “freedom of speech” get out of jail free card themselves, although never having had any problem speaking their mind. Shock jocks and conservative politicians exploit this.

But this time a lot of “ordinary people”, those with fathers, those who have recently lost a loved one, those who wouldn’t want to be called a liar by a shock jock, those who are sick of misogyny, dug their heels in and protested. Flooded social media with their anger, contacted advertisers, voted in opinion polls. And what they were saying was this – “free speech” has limits, we know them when they have been breached. “Free Speech” in the American sense was written into the Constitution in a gentler time. It can’t cope with the cynical use to which it has been put. It relies on a social contract in which shock jocks and politicians agree that there is a line you don’t cross, that “Free Speech” is enhanced by the individual decision not to push it to the limits. Rather in the way that a champion boxer would stop himself getting into a fight in a bar. That you have the freedom to speak but the character not to say any nasty thing that comes into your head.

And that limit? Well over recent years the shock jocks have been like those “drone” technicians who, sitting in Colorado, blow up people in Afghanistan, never seeing the consequences of pushing the button (just as, in earlier times, a bomber unleashing a load of bombs on, say, Coventry or Dresden, did not see the consequences of their action. Nor did the Enola Gay crew, far above the screams and the burnt flesh. Being involved, on the ground, looking into children’s eyes, hearing people scream, makes it harder to commit atrocities. No, not impossible, as we know, but harder).

So too with shock jocks. Easy to sit in a studio, earphones on, speaking into a microphone, miles away from where the victim of your nastiness is listening. Or speaking at a function involving a hundred of your political friends, or taking part in a “protest” involving your listeners. The real test is, would you say those things to the face of your victim? Would you scream abuse, face to face, at someone at the funeral of their father? Would you tell someone, face to face, they should be drowned, killed, that they were a bitch, a witch?

If there are things that you wouldn’t say to someone, face to face, that marks the boundary of “free speech”. But let’s not define it legally and write it down in a Constitution or “Bill of Rights”. OK?

PS the opposite view on Mr Jones, written more-or-less at same time as this, is here.

Note for American, UK, and probably other visitors. The “Liberal” Party of Australia is certainly not “liberal”. It is equivalent in ideology, policies, and behaviour to the Republicans and the Conservatives (and indeed it has strong links, exchanging ideas and tactics, with both).