Thursday, December 11, 2008

Blaska blows it on free speech

"Libel: An untruthful statement about a person, published in writing or through broadcast media, that injures the person's reputation or standing in the community. Because libel is a tort (a civil wrong), the injured person can bring a lawsuit against the person who made the false statement. Libel is a form of defamation , as is slander (an untruthful statement that is spoken, but not published in writing or broadcast through the media)."

Remember that word and its definition, as it will prove to be important in the following debate.

Dave Blaska, Isthmus' token blogger and reliably far-right guy, today takes on what he (and many other far right columnists) perceives to be an attack on free speech. He's mad about several things:
  • On the Friday before the Tuesday, November 4, general election, at the behest of the Democrat(ic) Party, a circuit court judge in Jackson County yanked a political advertisement off the airwaves without holding a hearing because he didn't like the ad.

  • Wisconsin's Government Accountability Board (the merged Ethics and Elections Boards) is about to manufacture rules governing third-party "issue ads," those being defined as advertisements not placed by the candidates themselves but by those who are interested in the results — aka: citizens.

  • The Wisconsin Judicial Commission has taken it upon itself to determine whether it agrees with an advertisement aired by successful State Supreme Court candidate Michael Gableman.

  • A Democrat(ic) Congress appears poised to re-instate the Orwellian-named "Fairness Doctrine" in order to shut down conservative talk radio.
Ignoring his continued misuse of the title of the political party with which he most disagrees, there are several points of contention within this neat bullet list.

What Blaska seems to be most upset about is the push to ban third-party issue ads during campaigns, and the push to force these third-parties to publish their lists of contributors. He muddies the issue by throwing in the panicky accusations about an alleged move to re-institute the Fairness Doctrine, even though no legislation has been introduced to that effect (even in the current, Democratically dominated Congress), and president-elect Barack Obama has stated that he does not support it. What Obama did say he supports, however, is more important:
In June 2008, Barack Obama's press secretary wrote that...Obama "does not support reimposing the Fairness Doctrine on broadcasters," but that he "considers this debate to be a distraction from the conversation we should be having about opening up the airwaves and modern communications to as many diverse viewpoints as possible," adding, "That is why Sen. Obama supports media-ownership caps, network neutrality, public broadcasting, as well as increasing minority ownership of broadcasting and print outlets."
Making sure one giant corporation doesn't own the majority of media outlets in a particular region seems more than reasonable to me, and would serve to make sure that multiple voices were able to find airspace without government intervention, simply by helping to insure diversity and accessibility. Net neutrality is something I'm also a big proponent of, and a subject well worth reading up on if you haven't already.

The Fairness Doctrine is a trickier beast, though, because it could easily be used for good or bad ends. It's difficult to debate the issue rationally, however, when both far sides tend to get a little hysterical over it. Folks like Blaska like to use it as a bogeyman to claim the squashing of their free speech rights, when all they really want is for conservative talk radio hacks to be able to go on spewing unsubstantiated claims and attacks (if this isn't true, then why do they only get up in arms when their ideological kin are singled out, and not folks on the other side?). Folks on the flip side may be inclined to let the government regulate what stations can and cannot air, which is also nonsense.

There is middle ground here.

First, we all need to come to terms with things like slander and libel, which are punishable offenses and not protected by the First Amendment. Mike Gableman's ad that heavily insinuated that Louis Butler had let a violent criminal out of jail who then went on to offend again is one such example. The ad was libelous. That's why the Wisconsin Judicial Commission has levied charges, and that's why Gableman has already been rebuked by several other organizations for the ad.

Banning such ads, or pulling them from the air, is not an attack on the free speech rights of anyone. It is done to uphold the law, and to keep it from being made a mockery of by those who seek to spread disinformation and lies. See "Swift Boat Veterans for Truth" for a prime example.

Third party "issue ads" are notorious for this, and both the more liberal and conservative sides are guilty. Any regulation of these, as the Government Accountability Board is seeking to impose, should be limited to insuring that they are factually accurate, and don't make disparaging and, most importantly, unsubstantiated claims about a person's character. That's it.

(As for making public the list of donors to such ads and campaigns - I admit to being torn. One could make the argument that as voting is left anonymous so no one feels pressured to cast their ballot one way or another, one should be able to donate money to a cause/campaign without fear of retribution.)

Shouldn't we be arguing policies and plans, anyway? A candidate holds a position that you find abhorrent? Say so. A candidate voted for something you think was wrong? Say so! Explain why. Go ahead, just leave the vague, more-often-than-not baseless accusations out of it.

Free speech is one of most important rights we have as citizens. It should be guarded and exercised with vigor and persistence. But to claim that what is really nothing more than slander, libel, and other defamation, is and should be protected as "free speech" is to throw mud at the very concept.

Certainly we need to make sure that such regulations don't go too far in the other direction, but we can't do without them, either. Money should not equal unfettered access to public airwaves in order to make whatever claims you want about a given person or group. That would do the opposite of fostering a free and open democracy. Hey Dave, is that what you want?

4 comments:

Brad V said...

Your conception of free speech is rather narrow, it seems. It's especially narrow when you apply it to the Gablemann situation - in the context of political speech involving what could be construed as an opinion about a public figure on an issue of community importance:

http://www.expertlaw.com/library/personal_injury/defamation.html

Defamation concerns are tempered by certain other considerations that involve promoting a robust open dialogue when it comes to self governing.

Michael Leon said...

A con law prof once asked me about free speech and the First Amendment.

I told him I was an “absolutist”.

“No, you’re not,” he said provocatively. “For every instance in which you know you have a free speech right to say something, I can name you two instances in which you’ll agree that you don’t.”

His hyperbole was on point. He went on to list libel, yelling “fire” in the theater, threatening a woman, calling in a bomb threat someplace as examples of instances where I agree that there ought not to be free speech.

His point was that my claim of being a First Amendment absolutist was not precise, undeveloped and incoherent.

Developing free speech doctrine [and our First Amendment political speech judicial doctrine is arguably one of the few areas of liberty in which America leads the world] requires a coherent, well-developed theory, and I think that using money for political speech in campaigns has not brought about a consistent, coherent response on free speech values and campaign speech from anybody whom I have read.

People like Senator Mitch McConnell (R-Kentucky) have raved about intrusions of free speech from McCain-Feingold while supporting statutes to punish flag burning.

Blaska’s position is similar to the late Erwin Knoll’s (former editor of The Progressive): that there is no conceptual difference between printing a pamphlet and running a TV spot.

Blaska restricts himself in his piece to gratuitously condemning liberals in criticizing the lack of coherence and clear doctrines of free political speech, but I think his main point that the “First Amendment makes everyone a journalist” in guaranteeing free speech rights seems correct to me, if imprecise.

The “imminent lawless action” test that the Supreme Court uses in protecting political speech (Brandenburg v. Ohio (1969)) is about right, and that should guide regulation of speech in campaigns.

Sen. McConell is hypocritical, and I think the writers Blaska hits are not; but their doctrine on free speech is undeveloped.

Emily said...

Your conception of free speech is rather narrow, it seems.

It really isn't.

The Gableman ad is patently misleading and false. I'm still not sure how people don't see that, when the facts are right there for all to see. It's especially heinous coming from a "fellow" judge, as it does.

We don't get to throw an ad on TV that says "George Bush eats babies for breakfast" without getting slapped with a (rightful) lawsuit. There's a good reason for that, and the rules should apply across the board.

We can, however, go on TV and say "I believe that George Bush lied about reasons for going to war, and I disagree with almost every policy decision he's made."

For those who can't see the difference, there are larger problems at issue here.

Emily said...

Also, what ML said.

The Lost Albatross