How Free Is Speech?

 Posted by on 21 November 2008 at 12:12 am  Free Speech
Nov 212008

William E. Perry recently sent me (and some other friends) the following thoughtful commentary on the state of free speech in America. I am posting it here with his permission:

Paul Hsieh’s NoodleFood post Leaving the Country? Pay the Price! about the exit tax contained in the HEART bill has given me serious concerns. It is another measure removing freedoms that was attached to a complex bill with a deceptive name. It is reminiscent of the internet gaming restrictions attached to the safe ports act.

Ayn Rand said that we should continue to fight and attempt to influence events as long as free speech remains. Lately I’ve been questioning whether we really have free speech in this country.

When the CEO of a major bank is afraid to speak out publicly even though he was forced to sign over part of his company to the government for a bailout that they didn’t need, I question whether we really have free speech. That was the case recently with the CEO of Wells Fargo. After the meeting detailed in the linked article, Wells Fargo has made statements about the use of the bailout money, but no statement about why they accepted it, or the pressure that was put on them.

We have speech codes in colleges, although FIRE fights very hard to limit the worst effects of them.

We have limitations on advertisements during elections due to McCain-Feingold. We have state level restrictions on political speech as well. Unrestricted political speech is necessary for a free country.

There is a strong movement toward reinstating the “fairness” doctrine, which is a further limitation on speech.

On the other hand we do have free speech in some contexts. Yaron Brook and the other ARI intellectuals are not stopped from making their statements in media venues. The people on the OActivists list are not stopped from writing Letters to the Editor and op-eds — and many of them are published.

Freedom and Individual Rights in Medicine (FIRM) and the Coalition for Secular Government (CSG) have had major successes thanks to the hard and smart work of Lin Zinser, Paul Hsieh, Diana Hsieh, Ari Armstrong, Gina Liggett and others.

So I think that we have free speech to some extent, but it is not a fully robust freedom of speech. At what point do we decide that we don’t have freedom of speech to the extent that it is safe to speak?

I’m not advocating leaving the country (to go where?); I’m not advocating setting up some kind of Galt’s Gulch. I’ve even been considering starting a group to deal with a looming issue that is very important to me, and doing advocacy about it with FIRM and the Coalition for Secular Government as models.

Rand famously said, “It’s earlier than you think,” when asked about some types of advocacy. That has become an overused cliche in some circles. But now I wonder whether it is later than we think.

Here’s my reply to him, somewhat edited:

I think that your concerns about free speech are very real — particularly having dealt with some of Colorado’s campaign finance laws these past few months. The federal and state governments won’t outright ban speech anytime soon, as is happening in Europe and Canada. However, they are increasingly regulating it with campaign finance laws and the like. These laws are so burdensome that most people would rather shut up than attempt to comply with them — and risk legal action if they do so wrongly.

More generally, my thought from the first serious talk of the financial bailout has been that perhaps we have less than the 20 years that Yaron Brook speculated at OCON to turn around the culture. That’s a very scary thought. Unless more Objectivists ramp up their advocacy efforts, we might go down in flames just as we’re gaining a real foothold.

Personally, my plan is to (1) finish my dissertation and then (2) speak in every forum open to me, full-time. I do plan to actively fight for free speech, because like you, I think it’s in very serious danger.

I will have more to say about the burdens of campaign finance laws — including my own experiences with them — in future posts.

Basically though, I would say that:

  1. It’s earlier than some might think — meaning that it’s too early for direct political action like running decent political candidates.

  2. It’s later than some might think — meaning that we have very little time to enact the necessary philosophical revolution.

Time-wise, we’re stuck between a political rock and a philosophical hard place. However bad that might be, there’s only one way out — namely fighting for our ideas in public forums of all kinds.

Oct 302008

Don Watkins, former NoodleFoodler, recently published an excellent op-ed via the Ayn Rand Center on prohibitions on indecent speech. Here it is:

Fleeting Freedom: The Indecent Assault on Broadcasters

The fleeting expletive case before the Supreme Court is about more than broadcasters’ ability to air dirty words–it’s about whether “community standards” should be allowed to override free speech.

By Don Watkins

As the Supreme Court prepares to hear arguments Nov. 4 in the so-called fleeting expletive case, Federal Communications Commission v. Fox Television Stations, it’s clear that much more hinges on its outcome than broadcasters’ ability to air dirty words.

The FCC has had the power to fine broadcasters for “indecent” speech for decades. But following Janet Jackson’s infamous Super Bowl wardrobe malfunction in 2004, the government declared all-out war on indecency. Congress increased the maximum penalty per infraction tenfold, from $32,500 to $325,000; the FCC started issuing fines left and right; and Congressman James Sensenbrenner went so far as to recommend jail time for broadcasters who violated “indecency” guidelines. At the same time, the FCC began issuing fines for fleeting expletives. Suddenly a star’s offhand comment on live TV could cost broadcasters hundreds of thousands of dollars.

In the midst of all this, one question never got answered: just what is “indecency”? The Supreme Court had defined it as speech that “depicts or describes sexual or excretory activities and organs in terms patently offensive as measured by contemporary community standards.” But which Americans count (and don’t count) as part of the community? Why are they king? And how are broadcasters to divine their supposedly shared standards? In response to these unanswerable questions, the FCC issued a hodgepodge of rulings in specific cases and told broadcasters, in effect, “You figure it out.”

Multiple uses of expletives in Martin Scorsese’s PBS documentary The Blues? Indecent, said the FCC. Multiple uses of those same expletives in the movie Saving Private Ryan? Not indecent. Suggestion of teenage sexual activity on CBS’s Without a Trace? Indecent. Graphic discussion of teen sexual practices on Oprah? Not indecent. Bono’s use of the “F-word” during the 2003 Golden Globe awards? Even the FCC wasn’t sure about that one. Initially it said the word was not indecent, but later changed its mind and started handing out the fleeting expletive fines at issue in FCC v. Fox Television.

So what is a broadcaster to do? Engage in self-censorship, cutting any material that regulators might declare indecent.

Defenders of the war on indecency admit that the FCC’s regulations are murky. But without such restrictions, they say, Americans will be helpless against the stream of offensive programming pumped into their homes: either we allow the government to wield arbitrary power over broadcasters, or we give broadcasters arbitrary power to subject us to filth.

What this argument ignores is that broadcasters’ power is not arbitrary. They must earn their market by offering programming Americans choose to consume. We choose to buy a TV (or not). We choose to pay for cable (or not). We choose which channels we and our children watch. Broadcasters can’t force us to watch offensive programming any more than an author can force us to read an offensive book.

This is the meaning of free speech: people have the right to say whatever they want, no matter how offensive–and we remain free to listen or not. We don’t have to abide by the opinions, prejudices, and errors of our neighbors, but can judge for ourselves whether something is true or false, art or trash, insightful or indecent.

But once the government becomes the enforcer of “community standards,” no speech is safe. How long until, say, the Bible Belt declares that the theory of evolution is offensive, corrupts young minds, undermines community values, and must be suppressed? This question is not academic. Bolstered by the indecency precedent, efforts are already underway to regulate “excessively violent” broadcasts.

And if the government can suppress speech “the community” allegedly deems offensive, then why can’t it force broadcasters to engage in speech “the community” allegedly regards as good? In fact, it already does so: Univision was recently fined $24 million for failing to air a sufficient amount of educational children’s programming. On the anti-indecency movement’s premises, judging the value of programming is not the prerogative of broadcasters, who decide what to air, or viewers, who decide what to watch–it’s the prerogative of “the community” (and its self-appointed spokesmen).

This is what is at stake in FCC v. Fox Television. The question is not whether fleeting expletives are indecent, an issue that individuals have a First Amendment right to decide for themselves. It’s whether the Constitution grants government the power to trample on freedom of speech, using non-objective laws to dictate what we can say and hear on the airwaves. The Supreme Court should take this opportunity to respond with an emphatic “No!” Anything less would be indecent.

Don Watkins is a writer and research specialist at the Ayn Rand Center for Individual Rights. The Ayn Rand Center is a division of the Ayn Rand Institute and promotes the philosophy of Ayn Rand, author of “Atlas Shrugged” and “The Fountainhead.”

Free Speech Versus Campaign Finance

 Posted by on 28 October 2008 at 11:25 pm  Free Speech, Politics
Oct 282008

Ari and Linn Armstrong recently wrote an excellent column for the Grand Junction Free Press on the clash between campaign finance laws and freedom of speech. Ari was kind enough to give me permission to repost it here, and he also sent me a version with links added. Also, below the column, you’ll find the full text of his interview with Eric Daniels.

Also, if you’re not reading Ari’s blogs — (on faith and politics) and (on politics and culture) — you should be.

Time to speak out for free speech

by Linn and Ari Armstrong

Free speech is under assault in America by state and federal governments, despite constitutional protections.

Both major presidential candidates are enemies of free speech. In 2002, John McCain rode the McCain-Feingold campaign censorship law through Congress. Among other things, the law prohibited select groups from running certain political ads before elections, though the Supreme Court struck down some of the worst parts of the law. Barack Obama wants federal controls on media ownership, his spokesperson told Broadcasting & Cable.

Some conservatives want more censorship over pornography. Many on the left call for censorship of the radio by forcing broadcasters to air certain views; supporters laughably call their scheme the “Fairness Doctrine.”

Here in Colorado, various activists have faced legal threats for daring to exercise their rights of free speech. For example, in 2006 Becky Clark Cornwell put up yard signs and protested a plan to annex her community of Parker North into the city of Parker in Douglas County.

A supporter of annexation filed a legal complaint against Cornwell and others, claiming they had engaged in “illegal activities” under Colorado’s campaign censorship laws.

Lisa Knepper of the Institute for Justice (IJ), a civil rights group that defended Cornwell and her neighbors, said that, while the U.S. District Court ruled the group could not be penalized, the court “failed to change the law to prevent such abuses of campaign finance law in the future, so we’re appealing to the 10th Circuit.”

ABC’s 20/20 featured Cornwell in an October 17 story about the campaign finance laws. Cornwell said “the lawsuit was used in an effort to shut us up about the annexation, to scare us enough and clobber us with these laws so that we wouldn’t talk about it any more.”

20/20 paid people to try to fill out Colorado’s campaign forms. Nobody did so successfully. One subject said, “A regular citizen cannot read this legalese.” Another said, “I’d rather just not get involved in the political process if I have to go through the nonsense that I had to go through today.”

Steve Simpson, the IJ lawyer defending the Parker North residents, said he’s also defending the Independence Institute, which was sued over its criticisms of Referenda C and D in 2005. Simpson is awaiting a decision from the Colorado Court of Appeals. He said “it would be impossible” for the Independence Institute, a think tank, to comply with the reporting requirements as an issue committee, because the group gets funds for general purposes and spends them on a wide variety of issues.

Even though we’ve condemned Amendment 48, which would absurdly define a fertilized egg as a person in the state constitution, we were displeased to see that a fellow named John Erhardt sued the Amendment 48 campaign for petty violations of the campaign censorship laws. Erhardt gloats on his blog, “So, while the fine of $150 won’t break their campaign, they did have to spin their wheels to defend this.”

Diana Hsieh, co-author of the paper “Amendment 48 Is Anti-Life” at, said the advocates of 48 “should be free to advocate their views — not bogged down in opportunistic legal action by opponents… I want opponents of Amendment 48 to be spending their time arguing against the substance and philosophy of it, not playing campaign finance dirty tricks.”

Finally, Douglas Bruce has taken flak in the media [one and two] for mailing a flyer against Amendment 59 and Referendum O through a nonprofit group, Active Citizens Together, without filing the legal paperwork that some think applies.

It’s past time to rethink the validity of the campaign censorship laws, along with all the other restrictions on free speech. We checked in with Eric Daniels of the Clemson Institute for the Study of Capitalism, and he offered a refreshingly consistent defense of our rights.

Daniels said, “Free speech means the right (not privilege) of individuals to express their opinions without government censorship of any kind, whether by hindering speech through regulation or through restricting it through prosecutions after the fact.”

We don’t even like requirements to report contributions. People have a right to speak anonymously. There’s no clear way to distinguish between advocacy and education. And, the voters can demand disclosure with their votes.

Daniels agrees: “If politicians wish to disclose the source of their financing to the public, they are free to do so… The electorate can indeed decide through voting whether to support candidates who do or do not disclose their financing. Contributing money to a political candidate or to supporters or opponents of a ballot measure should properly be a matter between the private parties themselves.”

Government should not abridge “the freedom of speech, or of the press.” Politicians have gotten away with doing just that for far too long. If we wish to retain and restore our other liberties, we must above all fight for our rights of free speech.

Linn is a local political activist and firearms instructor with the Grand Valley Training Club. His son Ari edits from the Denver area.

Full Interview with Eric Daniels

Note from Ari: My purpose in contacting Daniels was not to cover familiar ground, but to elicit responses about some of the most difficult implications of free speech. Until I thought more carefully about the matter on October 23, talked with another friend about it, and contacted Daniels, I wasn’t sure about my position on the matters of campaign-finance disclosure and campaigns by foreigners. Now I am sure. I am for freedom, not controls.

Daniels’s answers follow the questions in italics:

Briefly, why do you think free speech has come under attack by both right and left in recent decades?

Fundamentally, the reason free speech is under attack by both is because both fail to understand the nature of individual rights. The majority opinion in politics today holds that rights are gifts from the government that allow individuals to do some things as long as they do not upset certain vested interests. In the case of free speech, politicians believe that you should be allowed to say what you want as long as it does not, for example, offend religious or ethnic groups or as long as what you say is not backed by too much money, or as long as what you say meets some vague notion of community standards. But that is not free speech. Free speech means the right (not privilege) of individuals to express their opinions without government censorship of any kind, whether by hindering speech through regulation or through restricting it through prosecutions after the fact.

Should the law require disclosure of campaign-related expenses? I’m leaning no. People have a right to speak anonymously. There’s no clear way to distinguish between advocacy and education. And, the voters can demand disclosure with their votes. Do you agree with this? Explain.

I do not think the law should require public disclosure of campaign- related financing. If politicians wish to disclose the source of their financing to the public, they are free to do so. Likewise, if they choose to keep their donors’ identities to themselves, they should also be free to do so. The electorate can indeed decide through voting whether to support candidates who do or do not disclose their financing. Contributing money to a political candidate or to supporters or opponents of a ballot measure should properly be a matter between the private parties themselves. It does not matter how much a person gives or how much air time he buys, voters always remain free to take the message for which he has paid in the appropriate context. No one forces the voters to believe or discredit any given message, they do so of their own will.

Should the law prohibit campaign contributions from foreign entities and people? For instance (Diana Hsieh raised this example), if the U.S. were going impose a tariff on British goods, should British citizens be able to campaign against it in the U.S.?

Giving money to a political campaign is an issue of individual right — that is, the donor who has earned his wealth has a right to give it to whatever candidate he chooses, and the candidate has a right to accept money from anyone he chooses. Foreign citizens or political action committees have just as much right to speak as do Americans. Again, if there is some belief on the part of voters that foreign influence is unduly affecting some candidate, the voters retain the right to demand that the candidate disclose the source of his funding or face losing their votes.

Is there anything else we should know about free speech in the modern era?

Even though much of the recent controversy about free speech is tied to speech about political issues, it is important to remember that we have the freedom of speech not just because it facilitates a robust discussion of public policy (which is the unfortunate modern interpretation), but because it is a right of each individual to express his ideas in the manner he chooses and to reach whatever size an audience his rightly-earned wealth will allow.

Oct 272008

Notice of a Special Event: A Lecture by Mr. Flemming Rose, editor of Jyllands-Posten, publisher of the Danish Muhhamad cartoons, on “Free Speech in a Globalized World.”

When: Thursday, October 30, 2008, 7:00 PM

Where: Page Auditorium, Duke University (directions)

In September 2005 the Danish newspaper Jyllands-Posten published a series of cartoons depicting the Islamic figure Muhammad with images of terrorism. The newspaper’s publishers stated that they wanted to bring issues of free speech and censorship forward into public awareness. The result was a firestorm of protest, ordered by clerics some weeks after the publication, that highlighted the seriousness of this issue. Over one hundred people were killed in the ensuing riots.

This event will be a unique opportunity to hear the cultural editor of this publication explain the decision to publish these cartoons, the issues at stake in the decision, and the meaning of the protests and the violence that followed. A Q&A will follow the talk.

Flemming Rose is a journalist with long experience in European, Russian, and American issues. He has been awarded the “Free Speech Award” from the Danish Free Press Society.

Web Site:

Contact: John Lewis, Visiting Associate Professor of Political Science, Duke University, [email protected]

Fairness Doctrine for Blogs?

 Posted by on 13 October 2008 at 11:03 pm  Election, Free Speech, Politics
Oct 132008

A few hours ago, Stephen Green of VodkaPundit sent out a mass e-mail to over 100 notable bloggers (and others) with this post on the threat of Obama attempting to apply the Fairness Doctrine to blogs, if elected. What the hell, I thought. So I replied to all with the following:

Stephen (and others) –

Like you, I’m seriously worried about free speech under Obama. But damned if I’d feel any more secure with McCain. The man has absolutely no respect whatsoever for the First Amendment — and he showed that by sponsoring and passing the most severe restrictions on political speech in recent decades.

When asked whether McCain-Feingold violates freedom of speech, McCain said, “I would rather have a clean government than one where quote ‘First Amendment rights’ are being respected that has become corrupt. If I had my choice, I’d rather have the clean government.”

Campaign finance laws are strangling political debate in America. In recent months, I’ve been forced to spend hours of my time filling out campaign finance forms — just to spend a whopping $200 of my own money fighting Amendment 48. (That’s the Colorado ballot measure that would grant full legal rights to fertilized eggs.) The money was used to print and mail copies of an issue paper I co-authored, i.e. simply to advocate my views. After that, I realized that spending money to defeat the measure just wasn’t worth my cost in time. Galt help me if I was actually taking donations — or spending serious money. I would have had to hire an army of accountants!

For more on Colorado’s Amendment 48, see:

For more on the injustice of campaign finance, see Yaron Brook’s article in Forbes:…0321yaro n.html

The next four years will be very bad for freedom of speech, regardless of the name of the man in the Oval Office. Blogs will likely be on the chopping block, and we’ll have to fight for our most basic right to speak our mind.


A few notes:

(1) I’m familiar with the basics of the Fairness Doctrine, but it’s not clear to me how it might be applied to online media (in general) and blogs (in particular). Does anyone know?

(2) I’m not sure that I agree with my last sentence: “Blogs will likely be on the chopping block.” The fact is that blogs are substantially dependent on mainstream media. If the government effectively controls those sources of information, then it might not need to enact any controls particular to blogs to effectively silence them.

(3) For more on the kind of campaign finance laws that I’ve dealt with in my fight against Amendment 48 in Colorado, see this post by Ari Armstrong.

European Cartoonists

 Posted by on 30 July 2008 at 11:31 am  Free Speech, Religion
Jul 302008

Those who are interested in the future of free speech in Europe might find this article from the July 12, 2008 Wall Street Journal noteworthy. It documents the contrasting responses of Denmark and Holland to cartoonists accused of insulting Islam. Here are a few excerpts:

“Denmark protects its cartoonists. We arrest them,” says Geert Wilders, a populist member of the Dutch Parliament…

The contrasting Danish and Dutch responses “show that there is a serious struggle of ideas going on for the future of Europe,” says Flemming Rose, a Danish newspaper editor who commissioned the drawings of Muhammad in Jyllands-Posten. At stake, he says, is whether democracy protects the right to offend or embraces religious taboos so that “citizens have a right not to be offended.”

As Arts & Letters Daily notes, “The Netherlands once sheltered Jews and other refugees from the Inquisition. Now it runs its own Inquisition…”

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