Fairwaves

If you didn’t happen to catch Friday morning’s episode of C-SPAN’s Washington Journal, you might not have heard that those of us who support the First Amendment won a small victory recently.

…Passing by a vote of 309-115-1, the Pence-Hensarling-Flake Amendment (H.AMDT.484 [A031]) made it through the House of Representatives, giving free expression advocates a little more hope that government-mandated speech isn’t on the horizon.

…The amendment was attached to the Financial Services and General Government Appropriations Act of 2008 (H.R. 2829) and prohibits the Federal Communications Commission from using funding to impose the coercive Fairness Doctrine, which advocates claim will bolster “fairness” and “diversity” by requiring outlets such as talk radio stations to express certain political viewpoints against their will.

…The old version of the doctrine helped to all but eliminate political discourse on the radio dial because stations simply opted to avoid any controversy altogether instead of worrying about who said what and how often it might be said. Time reports that National Association of Broadcasters spokesman Dennis Wharton said of the Fairness Doctrine: “It actually inhibited free speech because broadcasters simply avoided covering controversial issues because they feared that the FCC might either fine them or revoke their licenses. It actually had the practical impact of chilling speech rather than enhancing it.”

…It was laid to rest in the 1980s by the FCC and pertained to radio and television, but given our technological advancements since then there has been concern that the Internet—and most notably blogs—would be added to the list of government-regulated speech if a twenty-first century version of the doctrine was drafted.

…Those of us who see the rule as the fascist (and I use that term in the true sense of fascism) mandate that it is will continue to argue in favor of the First Amendment and denounce the Fairness Doctrine. Supporters, some of whom called C-SPAN’s morning show on Friday and stumbled over almost every question that was posed to them by host Brian Lamb, apparently want fairness—even if it means violating the First Amendment . (Then again, we’ve already seen that unconstitutional mandates are popular with a large percentage of the U.S. population, so perhaps I shouldn’t be shocked.)

…That aside, a list of representatives who voted for and against free speech can be found below. Some of the prominent names who voted against the idea of not funding the implementation of the Fairness Doctrine: Conyers; DeFazio; DeLauro; Fattah; Frank; Hoyer; Jefferson; Kanjorski; Kucinich; Levin; Lewis; Lowey; McDermott; Murtha; Nadler; Rangel; Slaughter; Wasserman Schultz; and Wexler.

…In the transcript of the debate over the amendment, it’s interesting to see some of Dennis Kucinich’s (D-OH) comments pertaining to the matter: the doctrine will give us “productive public debate” (productive in the eyes of those calling the shots, of course) and will “need to restore accountability to those who use the publicly-owned airwaves” (again, accountable to whomever is in power at that moment). Kucinich concluded by saying that the Fairness Doctrine debate won’t happen while BushCorp is in the White House, but that “it may happen under a future administration.” Oh joy.

…We’ll have to see how the bill does in the Senate.

…For those who are unaware of what the First Amendment says about government-mandated speech, the text states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

…For those who don’t like what they hear on a talk radio show (or television or the Internet, for that matter), turn off whatever it is and find something that you like. Don’t attempt to control what others say because you don’t like it or find it “unfair.”

References
• Financial Services and General Government Appropriations Act of 2008 (H.R. 2829)
• H.AMDT.484 (A031)
• Roll Call for H.AMDT.484
• Time
• Transcript of H.AMDT.484 Debate (scroll to middle for Kucinich quotes)

One Person’s Constitution is Another’s Racism

In my last post, which dealt with the recent ruling by the Supreme Court which said that using skin color to determine student placement in public schools was unconstitutional, I had mentioned that what might make this decision so nationally divisive is that we have differing viewpoints on whether or not we should be able to enforce unconstitutional laws as long as those laws have good intentions behind them.

…In Thursday’s move by the Court, for instance, we could see that two views on constitutionality emerged: (1) a law is either constitutional or unconstitutional and if it’s unconstitutional it needs to be struck down; and (2) unconstitutional laws should exist as long as they send a socially-just message.

…In Meredith we found ourselves with a ruling that was boiled down to one thing: skin color cannot be used as a factor to determine which school a child attends. The ruling has not been popular, though, and the Internet is teeming with dissenting opinions that are in line with the second view on constitutionality mentioned above.

…The most applicable remark so far has been on The State of Opportunity (opportunityagenda.typepad.com), where Amanda Ogus illustrated my prediction that the term “racism” would be utilized to describe those of us who don’t think that skin color should be used to make decisions because such a move is unconstitutional: “[I]f we attempt to make policy on the assumption that the government is or should be colorblind, we ignore the existing health, wealth and society disparities, thus invoking a whole new form of racism.” Furthermore, she states: “So letting things ‘run their course’ now, and delaring [sic] that colorblind policies are best is premature, short-sighted an [sic] unlikely to proect [sic] our coutnry’s [sic] core value of ensuring opportunity for everyone.”

…I’m not using Ms. Ogus’s view as an example to single her out; I don’t know her from Eve and there are many other opinions in the blogosphere of a similar nature. I picked her comments because they provide the best example of my assertion that issues like race will never be agreed upon because we often disagree on how to handle laws related to them; in addition, we find it difficult to discuss racial issues because it has become common to hear words like “racism” and “racist” the moment that a disagreement arises—even if racism isn’t present.

…Sometimes we’re supposed to be colorblind; other times we’re supposed to pay attention to skin color and nothing else. Sometimes we’re supposed to oppose unconstitutional laws; other times we’re supposed to celebrate laws that are unconstitutional. As I had mentioned in the previous post, we need to make up our minds; we have to decide if we want consistent laws or if we want laws that apply to situations whenever we want them to. If we opt for the latter, are we prepared for the outcome that comes with such a double standard?

Reading, Writing, & Social Engineering

Color Blind Bind
In the wake of the Supreme Court’s recent ruling in Meredith v. Jefferson County Board of Education, in which they ruled that using skin color to determine school placement for students was unconstitutional, a few items of importance have surfaced that are well worth mentioning.

…In last night’s “debate” of Democratic presidential candidates, Senator Hillary Clinton said of the Meredith ruling: “You can look at this decision today, which turned the clock back on the promise of Brown v. Board of Education, that was resting on the fact that children are better off if they are part of a diverse, integrated society.” Senator Clinton didn’t offer any scientific evidence to back this assertion on diversity, however; moreover, she has jumped aboard the bandwagon which says that the Meredith ruling is opposite that of the Brown ruling. But is it?

…On last night’s episode of Nightline, even Mattie Jones, a black grandmother in Louisville, has suggested that the social experiment of forced diversity based upon skin color has backfired. “We don’t have to sit next to a white person—our kids don’t—to be educated,” she said. Her final quote pertained to the state of her neighborhood following the busing requirement that bolstered diversity: “I used to sit on my porch to hear the laughter and the chatter; all we hear now is the noise of the buses.”

…I imagine that a few people are calling Mattie Jones a “sell-out” or similar, possibly viler, names. Some are probably sitting at their computer saying, “What? James Phillimore, how dare you not take the position of the minority Justices! You’re racist! You’re bigoted! You’re narrow-minded and ignorant! You’re fascist!” Such utterances might be emotionally gratifying, but they’re nonetheless lacking merit.

…Let’s consider, for a moment, the ruling in Brown v. Board of Education. The Brown ruling was supposed to overturn the absurd “separate but equal” doctrine that was put forth in Plessy v. Ferguson. In Brown we find: “Racial discrimination in public education is unconstitutional, 347 U.S. 483, 497, and all provisions of federal, state or local law requiring or permitting such discrimination must yield to this principle.”

…So, we find ourselves with a few questions that need to be asked: Why are those who claim to be opposed to using skin color to make determinations—in this case school populations—the same ones who are now opposed to the Meredith ruling, which says that using skin color to make determinations is unconstitutional? If we’re supposed to be a colorblind society, why are we supposed to simultaneously support the idea of using skin color to determine which child goes to which school? If anything, a person should either support both the Brown decision and the Meredith decision or oppose both. It’s contradictory to support one and oppose the other.

…NPR’s Juan Williams might have explained it best in a recent interview with Renee Montagne. He said:

Brown said that, in fact, separating children on the basis of their skin color—their race—was unconstitutional, a violation of their Fourteenth Amendment rights to equal treatment. So yesterday what you had was the majority saying that, according to the Brown decision, you shouldn’t judge children on the basis of their race and you shouldn’t assign them to schools on the basis of their race. The minority said that, wait a second—Brown was intended to remedy the damage done by legal segregation in this country and you’re now turning it on its head by suggesting that you can’t take those steps because of the need to have a colorblind Constitution.

…In a press release, the American Civil Liberties Union states:

The impact of the Court’s decision will be particularly striking in Louisville. In response to the city’s history of racial segregation, a judicial order that was in place 25 years authorized school officials to take race into account when making student assignments. After the judicial order expired, city officials continued that policy in modified form in the hope of avoiding the resegregation that plagues so many cities. Louisville’s effort has now been derailed by the Supreme Court.

…This paragraph from their press release is interesting on two points: (1) the ACLU has concluded that it’s “segregation” if a student goes to school in their own neighborhood; and (2) they openly support taking skin color into account for student assignments, even though such a move violates the Fourteenth Amendment. Moreover, the ACLU is apparently taking the position that upholding the Constitution is now a form of “derailment.”

…Perhaps this is where the controversy is found. One view is that it’s an either-or situation: Using skin color to make decisions is going to be either constitutional or unconstitutional; it can’t go both ways.

…The other viewpoint, in this case the one espoused by the minority Justices and folks who are decrying the Meredith ruling, is that we can use skin color to promote diversity in an effort to remedy the past injustice of segregation (real segregation—not the ACLU’s version of it), but that we must ban it in all other situations.

…The second viewpoint is basically saying that double standards are acceptable as long as we get what we want, in this case the possibility of a grand social engineering experiment.

The Benefits of Diversity
It might be disturbing to those who are lamenting the Meredith ruling, but evidence exists that actually calls into question the social value of diversity based on ethnicity.

…Robert Putnam, a political scientist at Harvard University, has authored Bowling Alone, in which he says that diversity in communities might in reality cause people “to withdraw even from close friends, to expect the worst from their community and its leaders, to volunteer less, give less to charity and work on community projects less often, to register to vote less, to agitate for social reform more, but have less faith that they can actually make a difference, and to huddle unhappily in front of the television.” Furthermore, as City Journal’s John Leo points out, Putnam even suggests that the data “may underestimate the real effect of diversity on social withdrawal.” (His emphasis.)

…Unfortunately, Putnam’s book has a dark side-note: he wasn’t happy with what he discovered and hesitated to release the results until he could find evidence that suggested something else.

…Leo continued: “Last October, [Putnam] told the Financial Times that ‘he had delayed publishing his research until he could develop proposals to compensate for the negative effects of diversity.’ He said it ‘would have been irresponsible to publish without that,’ a quote that should raise eyebrows.”

…I have to agree with Leo. The idea that a scholar might hesitate on releasing research data simply because he didn’t like what the data showed is disturbing to say the least. While it’s not as serious as the Michael Bellesiles incident from several years ago, it still makes one wonder if the world of academia is making a significant shift from objectivity to subjectivity.

Affirmed
Putnam’s desires aren’t the issue here; the rulings in Plessy, Brown, and Meredith are. As such, we need to ask ourselves if we’re for or against using skin color as the determining factor for public school populations. If we’re going to say that using skin color as a determining factor is a bad thing, as the Supreme Court rightly did in Brown, we should consistently defend that position by denouncing the Plessy decision and supporting the Meredith decision.

…If people are opposed to the Meredith decision but claim to support the Brown decision, we need to seriously question their view on using skin color as a determining factor for schools and their opinion of the Fourteenth Amendment in general. To suggest that skin color should be used in an effort to experiment with forced diversity to “remedy” the past injustice of segregation is contradictory to the Brown ruling. Like it or not, opposition to the Meredith ruling is opposition to a colorblind society.

References
• ABC News
• ACLU
• City Journal
• Cornell University Law School
• Nightline
• NPR

Mouth of the Beholder

I haven’t written anything for The Tempest lately but given that the First Amendment and government regulation of speech is a major issue in my line of work, I’ve found myself becoming frustrated over the last few weeks over an issue that continues to have support: the unconstitutional Fairness Doctrine.

…It’s been in the news of late following a “report” issued by the Center for American Progress and the Free Press entitled The Structural Imbalance of Political Talk Radio, in which they state that “91 percent of the total weekday talk radio programming is conservative, and 9 percent is progressive.”

…This has opened the door for calls of government-regulation of talk radio to make the views expressed there “fairer” and “balanced.” On the blog This Modern World, Tom Tomorrow says that “it’s fun to listen to Hannity and Limbaugh desperately try to explain why ‘equal time’ = ‘censorship.’” Representatives Maurice Hinchey (D-NY) and Dennis Kucinich (D-OH), along with other members of Congress like Dianne Feinstein (D-CA), have also been supportive of bringing back the law that was overturned in the 1980s. When asked if she’d bring back the anti-First Amendment mandate, Feinstein said: “Well, I’m looking at it, as a matter of fact, Chris [Wallace, host of Fox News Sunday], because I think there ought to be an opportunity to present the other side. And unfortunately, talk radio is overwhelmingly one way.”

…As such we find ourselves with politicians and their supporters who are willing to call for legislation requiring certain viewpoints to be aired, all in the name of “fairness.”

…When I was preparing the rough draft of this post I found myself with several paragraphs explaining how government-regulated speech can never be “fair” because there’s nothing fair about having one’s First Amendment rights violated. Then I came to the realization that I’d be preaching to the choir. Those of us who recognize government-mandated speech as censorship will always do so because that is what it is; those who want to force others to say something against their will will continue to call such coercion “fairness.” It’s like trying to debate the Earth’s shape with someone who insists that the planet is flat.

…What this issue has done is helped me to see that segments of our populace—segments that can be represented by the aforementioned Tom Tomorrow—view coercion as a form of “fairness” as long as it helps to get their views promoted. They’ve concluded that if you’re not saying something that they want to hear—in this case viewpoints that are being proclaimed on talk radio—it in some way makes your First Amendment rights invalid. Mr. Tomorrow, for instance, views government-regulation of speech as “equal time” and doesn’t see it as being censorship because the doctrine is to his benefit.

…I’ll be the first to say that someone like Sean Hannity has the intellectual capacity of a first grader. I’ve listened to him on several occasions and can sum up his usual response when it appears as if he’s about to lose an argument: “You’re not a patriot. You’re not a real American.”

…We can find a similar lack of intellectual weight and logic in the argument that has been offered by supporters of the Fairness Doctrine. We could sum up their stance this way: “You’re not saying what I want to hear so I’m going to have the government tell you what to say.”

…Is there really any difference between these two?

References
• Center for American Progress
• This Modern World
• Fox News Sunday transcript