'Appearances of Impropriety' threaten free speech Silencing: From political comment to bad jokes to chat about the weather, government intrusion is dangerously increasing.


October 26, 1997|By David Marston | David Marston,special to the sun

TO: All Television and Print Media

FM: The Commission

RE: Express Advocacy Communications

This is to advise you that, pursuant to Section 406(b)(20)(A)(iii) of the Act, from this date until 60 days from the date hereof, any political communication which refers to any clearly identified candidate, or which a reasonable person would understand as advocating the election or defeat of any such candidate, is unlawful, and any telecast, broadcast or publication of such communication will subject the party in violation to the penalties specified in the Act.

A mandate from the mullahs in Iran?

An ultimatum from Fidel Castro?

No, just a routine advisory such as the U.S. Federal Election Commission might issue, should the Bipartisan Campaign Reform Act of 1997, otherwise known as McCain-Feingold, become law.

Free speech is under attack. The weapons against it are both blatant and subtle (some word processing software, unless disabled, modifies offensive references as you type). For much of our history, the main thing you couldn't say was " 'FIRE!" in a crowded theater and the answer to bad speech was more speech. Now, speech limits are increasingly accepted without alarm, appearances are what count, and the radical notion of criminalizing offensive speech is being debated in law journals. In short, once muscular and sacrosanct, free speech is declining into debilitation.

For example, McCain-Feingold's little-noticed Section 406 imposes an absolute media blackout on independent political ads that mention candidates by name during the final 60 days before an election.

That should be chilling: a government commission will decide which words may be said on political ads on television. But few seem chilled. As sweeping as any gag the Gestapo might impose, Section 406 has nevertheless drawn minimal critical comment.

"Campaign reform" is the good government issue du jour, and right-thinking people are not going to let constitutional technicalities get in the way. Pernicious "soft money" is what McCain-Feingold aims at, and if it turns out that what it really hits is free speech, well, we can deal with that later.

It's an emerging pattern. Given the chance to cast a popular vote, members seem increasingly unintimidated by the First Amendment's stern command that "Congress shall make no law" abridging freedom of speech or press. Kids watching porn on the Internet? That's easy, outlaw it. The Communications Decency Act whizzed into law, problem solved, and if the Supreme Court takes exception (it did), well, elected officials can't be blamed for that.

The core problem, as set forth in "The Appearance of Impropriety in America: How the Ethics Wars Have Undermined Government, Business and Society," by Peter W. Morgan and Glenn H. Reynolds (The Free Press. 258 pages. $25), is that public policy is increasingly about appearances.

Why? The authors' answer, only slightly oversimplified, is blame Dick Nixon. First, he presided over the "greatest-ever expansion of federal authority," fathering wage and price controls, EPA and OSHA, a "regulatory explosion" that transformed Washington from JFKs "city of northern charm and southern efficiency" into a high-rolling "parasite culture" of lobbyists, lawyers and trade associations.

Then, Watergate. With Congress determined to restore moral purity, the avalanche of post-Watergate reforms went beyond bad practices and focused instead on "the appearance of impropriety," a fuzzy standard at once too strong and too weak. Still, the "appearance" standard sounded virtuous, was embodied in a blizzard of ethics memos and codes, and was handy for many lawyers/lobbyists who needed to justify their existence.

Gradually, the authors argue, it became clear that other problems - not just ethical issues -might also have tidy "appearance" solutions. Dissatisfied with public schools? School uniforms. Crime rate up? Three strikes and you're out. Patriotism fading? Anti-flag burning bill. Campaign financing corrupt? McCain-Feingold. And if some of this offends local school districts or civil libertarians or free-speech purists, so be it.

But on free speech, Congress is by no means the only censor. Largely unnoticed, federal agencies have muzzled lots of workplace speech: swear words, sexually oriented jokes, comments suggesting "gender animosity" are all taboo, even when unintentionally overheard.

One man said he'd "like to smoke a cigar but the 'Nazi feminists' wouldn't let him," which turned out to be an understatement; the offended parties also hit his employer with a $500,000 jury verdict (hostile work environment).

As one observer noted, "Today's law routinely suppresses verbal comments, literature, and other expression of political, nationalist, and religious views in the workplace, and it does so very much on the basis of their content."

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