Great Moments in the Defense of the First Amendment

Let's recap the last few months in the life of the First Amendment.

In approximately June, the California Supreme Court held that consumer rights advocates could pick through the political speech of commercial businesses for evidence of "unfair competition." In other words, if Joe the Dairy Guy said that his cows were the happiest cows on Earth, PETA is empowered to bring an action for restitution, penalties and attorney's fees under California Business and Professions Code Section 15200. Worse still, if Joe the Dairy Guy says that PETA is a ridiculous organization that wants to increase prices of consumer goods and destroy the family farm, does he get any protection under the First Amendment in California? Nope. He's running a business. His statements are probably intended to communicate a business message, and since he has the all powerful profit motive as the inducement for his speech, he's not likely to censor himself. Hence, no First Amendment protection for Joe.

In May, the Ninth Circuit concluded that the sponsors of an intemperate and obnoxious anti-abortion site could be held liable for "threats" against doctors notwithstanding the fact that they lacked any ability to carry out the "threat" and despite the obvious fact that their site was a farce - a farce in poor taste which any reasonable person should condemn as inconsistent with civil society, but a farce nonetheless. [The majority opinion also relied on the fact that persons associated with the site had actually testified on behalf of persons who were subsequently convicted of the murder of abortion providers.]

Somewhere in this sequence, the Congress passed a law regulating political speech.

These events led to this insightful essay about whether the New Class had abandoned the First Amendment.

Near as I could tell there was not any significant concern from any media outlet about the First Amendment implications of these developments. But, not to worry, the media, or at least a pro-media blog, has leapt to the defense of the First Amendment because of the tremendous threat to speech arising from Opie and Andy public relations gimmick where the pair encouraged listeners to engage in "sex in dangerous places."The OmbudsGod writes:

Congratulations to William Donohue, and the 350,000 member Catholic League for Religious and Civil Rights, for transforming two “shock jocks” into First Amendment Martyrs.

By bringing pressure on the FCC to both fine and revoke the broadcast license of WNEW FM, they have succeeded in forcing the radio station to eliminate a popular syndicated afternoon show. Two DJs, Opie and Anthony, have been fired, and the General Manager, Ken Stevens, and Program Director, Jeremy Coleman, have been suspended. This censorship will have a chilling effect on other broadcasters who may wish to broadcast controversial material.

There are so many things wrong in such a short passage. First, I learned in my first year of Law School that radio stations that promote behavior for which it can be reasonably foreseen will cause damage or injury to others can themselves be held liable for negligence. The example offered by the Torts professor was a radio station that encouraged reckless driving behavior, but "sex in dangerous places" will do as well. Assume that some elderly woman had died of a heart attack in the near vicinity of the stunt. The radio station could have been, and maybe should have been, sued. Opie and Andy should have been sacked by the station for that reason alone, which has nothing to do with censorship.

Second, conduct is not speech. Never has been, never will be. Encouraging, causing or inciting others to break the law should not be protected speech. Would Ombudsgod have been as oblivious to this concept if Opie and Andy had been encouraging listeners to paint the Star of David on mosques?

Third, now Ombudsgod is concerned about the First Amendment? Where has he been when political speech has been systematically constricted? Of course, the cases and developments I have cited do not involve speech by the businesses engaged in "for-profit" activities called newspapers or radio stations. So, perhaps Ombudsgod should be clear that when he says First Amendment, he means the mainstream media.