Democrats Hate Free Speech - Still

Story here. Update forthcoming (assuming I feel like it).

In what can only be described as a major breakthrough for Senate bipartisanship, four Democrats are introducing a bill to make President Bush shut up. While the preceding sentence was clearly tongue-in-cheek, the following does not appear to be:

"Formuzis told E&P that while the bill is being introduced by Democrats, its message and intent is something endorsed by Republicans and Democrats alike."

To which Republicans are you referring? John McCain, perhaps? If so, why is the bill being introduced by Kennedy (D - Mass), Lautenberg (D - NJ), Corzine (D - NJ) and Durbin (D - NJ)?

But to be fair, let's parse this out a little bit. The proposed bill is called the "Stop Government Propoganda Act." Nobody likes propoganda, right? Everyone knows that propoganda is an evil thing, the kind of thing Hitler did, and therefore the U.S. government has no business creating propoganda, and therefore both Republicans and Democrats can all agree that a bill to stop government propoganda is a Very Bad Thing, no?

The problem is that I suspect Sen. Kennedy et al have a very subjective view of what constitutes "propoganda." The word "propoganda" is defined in the last paragraph of the article. My main objection to that definition is that it leaves too much open to political wrangling. For example, it prohibits "messages with a 'self-aggrandizing' purpose or 'puffery of the Administration, agency, executive branch programs or policies or pending legislation.'" That sentence reads like an unrestricted license for Democrats to gripe about every single statement made by any Republican anywhere. People could sue President Bush for his inaugural speech. They could sue Condi Rice for her testimony in the Senate. White House spokesman Scott McClellan could be sued every time he spoke to reporters.

Developing another legislative mechanism for partisan sniping is not, in my view, a responsible use of Congress' time.

So let's take this from the beginning. The first thing we must consider is the Constitutionality of the proposed bill. The First Amendment is, quite naturally, the subject of a great deal of controversy, and that is because it doesn't tend to define its own terms. Congress is forbidden, for example, from making laws abridging the freedom of speech. But what is the freedom of speech? The Constitution doesn't say, so we have lawyers argue about it, and eventually we come up with something of an idea of what "the freedom of speech" means, at least as of January, 2005. And yet, in spite of these arguments, the text of the amendment clearly and undeniably restricts the power of Congress. That's the very first word in there, and the most important word when we're looking at a bunch of Senators who want to restrict speech.

"Congress shall make no law..." Does that mean "no law," or does it mean "some laws, depending upon whether I can get political mileage out of it"? I prefer the former, but Kennedy and friends apparently do not.

So then, does the government have freedom of speech? Undoubtedly it does, and the case law is abundant on the issue. Government can both speak and fund the speech of others, and furthermore it is not constrained by the First Amendment to fund every speech, only that which it wants to fund (barring certain kinds of discrimination).

Therefore, the President has every right to create and broadcast any message it wants, however it wants, and Congress is expressly forbidden from doing anything about it by the plain and undeniable language of the First Amendment.

The next issue, then, is whether there are no safeguards against abuses? After all, we recently saw that the government paid two columnists to promote its programs, without disclosing that contractual relationship. Most people think that's improper, for varying reasons, and I agree. Senator Lautenberg's spokesman, Alex Formuzis, justifies the Stop Government Propoganda Act in part by arguing, "it's just not enough to say, 'Please don't do it anymore.'"

I strongly disagree, for two reasons. First of all, in the wake of the revelations, President Bush expressly instructed his cabinet not to do it anymore, so we have an Executive restraint (which the First Amendment allows), rather than a Legislative one. Second, and more importantly, there are political controls. The story hurt Bush's credibility, it hurt his No Child Left Behind Act, and it probably did irreversible damage to Armstrong Williams' and Maggie Gallager's careers. What columnist is now going to accept a secret contract with the government? What politician will run the risk of getting embarrassed by a similar story?

Back to the justifications:

"We only have a few senators on the bill so far, but we hope and expect that we'll get a number of others to sign on to the legislation once we introduce it," he said. "This is not a Republican or Democratic issue. This is an issue about an independent press, and I think that's something that will cross party lines."

Issue of an independent press? That's certainly an odd way of framing the problem. The two columnists who got burned were perfectly independent - they had unlimited freedom to accept or reject their contracts, and they knew the risks they were taking. Moreover, as I pointed out above, their public crucifixion will probably serve as a better caveat to future would-be beneficiaries of the government payroll than any legislation. And there will always be a reporter who would rather tell the story of how the government tried to buy him than would take the check. Imagine, for example, what a Paul Krugman column would look like the day after Bush asked him to cheerlead a government program.

Additionally, the bill sweeps much wider than Formuzis' justification allows. He previously attacked not just the practice of buying columnists, but also films released by the Drug czar's office and the Department of Health and Human Services. Clearly there is no connection between these practices and an independent press.