Confronting the Changed Circumstances of Free Speech in a Media Society

• Author: Patrick M. Garry
• Position: J.D., Ph.D.
• Pages: 551-565

Page 551

In 2003, the Supreme Court handed down its much-awaited decision on the McCain-Feingold campaign finance bill.¹ Among its provisions, the bill abolished "soft money" contributions to national party committees,² placed restrictions on fundraising by federal officeholders and candidates,³ and curtailed certain political advertisements from being televised within sixty days of a general election.⁴ As it severely limited the rights of people and groups to engage in various types of political speech, the bill's constitutionality was challenged on First Amendment grounds.⁵ But to the surprise of many, the Court in McConnell v. Federal Election Commission upheld the bill⁶ -a bill that clearly exceeded the existing limits of First Amendment doctrine, as laid down in various post-Watergate judicial opinions.⁷ The Court's decision in McConnell, which runs 166 pages, would require an entire book to exhaustively analyze. In short, the decision can be summed up in one phrase: changed circumstances.

Since the last major Supreme Court opinion on campaign finance and political speech, circumstances were seen to have changed. The costs of political campaigns were spiraling.⁸ Fundraising scandals had plagued the Clinton presidency.⁹ The public was becoming exasperated by the perceived influence of money in politics. The appearance of corruption had, in the view of both Congress and the Court, reached crisis levels.¹⁰ And so, because of these changed circumstances, the Court's doctrinalPage 552 approach changed. It approved of legislation that just several decades earlier would have been declared unconstitutional.¹¹

Just three decades earlier, however, the Supreme Court had declared that the First Amendment "has its fullest and most urgent application precisely to the conduct of campaigns for political office."¹² Five years later, the Buckley decision overturned limitations on individual political expenditures, reasoning that such limitations restricted "political expression 'at the core of our electoral process and of the First Amendment freedoms.'"¹³ Five years after that, the Court struck down an ordinance placing ceilings on contributions to committees formed to support or oppose certain ballot measures.¹⁴ And as recently as 1996, the Court ruled unconstitutional various restrictions on the expenditures of political parties.¹⁵

In Buckley, the Supreme Court stated that the speech freedoms of one person could not be curtailed in an effort to level the political playing field and remove any financial advantages enjoyed by that person over another.¹⁶ Similarly, in First National Bank of Boston v. Bellotti,¹⁷ the Court rejected the "systemic corruption" argument as a rationale for restricting political speech.¹⁸ Nonetheless, by the time the McCain-Feingold bill came to the Court, circumstances had changed. According to the Brennan Center for Justice, the bill was a needed legal adjustment to "changing circumstances and the most pressing problems."¹⁹ But as the dissent in McConnell argued, the end result of the decision is that what was formerly the most protected of speech-political speech-now carried more restrictions than virtual child pornography, sexually explicit cable programming, tobacco advertising, and nude dancing.²⁰

Just as with political campaign advertisements, there have been escalating calls for new restrictions of indecent material appearing on radio, television, and the internet, but the courts have steadfastly opposed any such restrictions.²¹ Even though changed circumstances have certainlyPage 553 occurred over the years in the quantity and quality of media content, the courts have resisted making the type of doctrinal adjustments to entertainment speech that it made in McConnell v. FEC regarding political speech. Indeed, over the past half-century, few areas of American life have changed to the degree that media content and pervasiveness have changed.

If changed circumstances can justify regulation of the kind of speech that lies at the core of the First Amendment, then they should likewise lead to changes in the doctrines applying to the plethora of vile, vulgar, and violent entertainment speech increasingly filling the modern media. Violent and sexually explicit video games are marketed to children under the age often.²² Pornographic and hate-speech sites on the internet can be accessed with just a click of the mouse. The radio, which is perhaps the medium most available to young children,²³ can contain truly repugnant speech. The Opie & Anthony show on WNEW in New York broadcasts a contest in which it awarded points for play-by-play descriptions of couples having sex in public places such as the zoo, a toy store, and St. Patrick's Cathedral.²⁴ On another occasion, the show featured a graphic song about a father having oral sex with his daughter.²⁵ The Deminski & Doyle Show in Detroit asked callers to be as graphic as they could when narrating their favorite sexual practices.²⁶

Television is just as bad. A morning news program in San Francisco had as its guest a cast member of the theatrical production Puppetry of the Penis, who during his brief appearance exposed himself while engaging in dramatic fondling of his genitalia.²⁷ Even national rituals like the Super Bowl are no longer safe for a family audience. Public outrage occurred after the 2004 Super Bowl halftime show when singer Justin Timberlake tore away the clothing covering co-singer Janet Jackson's breast.²⁸ But amidst the uproar over this flesh-baring incident, attention seemed diverted from the lyrics of the song being performed at the time: "I'm gonna havePage 554 you naked by the end of this song."²⁹ Such public speech certainly did not exist when the First Amendment was ratified, nor during much of the twentieth century when the current doctrines covering free speech were being formulated by the courts.

Another strikingly changed circumstance involving media speech is its sheer prevalence. Those who wish to avoid violent and offensive speech can hardly do so because it can appear anywhere and at anytime, with little advance warning. Using the seek key on the radio to find a clear station in an unfamiliar market may suddenly produce a Howard Stern monologue on anal sex. Surfing the cable television stations will bring to the screen a couple discussing their most recent sexual encounter. Walking through the mall, past a music store, may expose the passerby to the crude and violent lyrics of a rap artist. Pop-up advertisements on the internet can interrupt a child's research session with an invitation to join a sexual chat line. Unsolicited emails containing sexually explicit material can be waiting in the internet mailboxes of unsuspecting users. Patently offensive music lyrics can be heard from someone else's CD player in a park or even while waiting for a traffic light to change.

When the Supreme Court developed its current free speech doctrines, largely during the period from the 1950s to the 1980s, most of the controversies involved dissident political speech: socialists and communists trying to convey their political ideas to a largely unreceptive public. Though unpopular, the ideas were nonetheless politically relevant. However, such is not the case with most of the current speech controversies. These disputes have very little to do with politics, even radical politics. Most controversial speech now takes the form of entertainment programming being packaged and sold by large media corporations that profit off the peddling of raunchy shows. The conflicts are not, contrary to the image often created by self-martyred artists, connected with political issues or causes; they are not at all similar to the government crackdowns on suspected communists Senator Joseph McCarthy instigated during the early 1950s.³⁰

Despite the claims of multi-millionaire entertainers seeking victim status, popular art is not being stifled by any fear of government censorship. Instead, it is being driven by an accelerating race to the bottom with each artist trying to outdo the other in outrageousness. When entertainers do come under scrutiny, as Howard Stern did from the Federal Communications Commission (FCC) during its briefly increased vigilance following the Janet Jackson Super Bowl incident, they argue that they are being singled out for political reasons and are being punished forPage 555 advocating views critical of the government.³¹ But if anyone has ever listened to Howard Stern, they know that political commentary is not a characteristic of his show. Granted, there might be a passing phrase lambasting the government, thrown into a thirty-minute trash-talk on lesbian sex, but it is nothing more than a quip, a filler of some dead air-time.

A disconnect has occurred between the speech that actually exists in the American media and the law governing that speech-a disconnect between reality and legal doctrine. As Oliver Wendel Holmes once wrote: "The life of the law . . . has been experience."³² The Supreme Court's campaign finance decision in McConnell reflects this pronouncement. Because of "changed circumstances" in the reality of political campaigns, the Court reacted with a change in the law. Other constitutional rights have similarly undergone such changes. The Second Amendment right to bear arms has been curtailed because of the prevalence of guns and violence in America.³³ An assault weapon ban was enacted into law,³⁴ as were various gun registration requirements.³⁵ The Fourth Amendment freedom from search and seizure has been modified to allow law enforcement officials to conduct warrantless searches of homes if they suspect evidence is about to be destroyed or a crime committed.³⁶ The Equal Protection prohibition against racial targeting has been altered so as to permit affirmative action programs aimed at assisting specific racial groups.³⁷ But despite all the changes in American's media environment, constitutional law has...