Ian Buruma, writing in this week’s New Republic, defends the "freedom to offend."  "The Freedom to Offend: How Communities Control Language," New Republic (Sept. 4, 2006) at 21-23.  His subject is the increased pressure brought against speech offensive to ethnic or religious minorities, primarily in Europe but also in the United States.  It is a sensitivity—this reaction to dangerous words—closely related to one triggered by a species of political speech, also considered dangerous and in need of control.  There are similarities here that should worry progressives, whose stance on free speech issues has become alarmingly ambiguous. 

     Modern regulation of political speech is still defended, within the accepted constitutional framework, as an antidote to corruption.  But the corruption of the Buckley kind, which arises from sale of office, is only partially at issue in the most recent and most severe political speech restrictions, such as the pre-election advertising ban.  Those restrictions are drawn to bind independent speech, and not only the kind that, coordinated closely with a candidate, therefore threatens a corrupt bargain in which the favor is repaid with government access or action.  In restricting speech, the state is also guarding against offense:  the offense of raw appeals to emotion, often condemned for resting on falsehoods and irrelevancies. 

     Among the famous examples singled out is the "Yellowtail ad," a case study in mud-slinging in which the personal history of a candidate was the basis for implying his unfitness for office.  Couched in language acceptable for judicial decision, the objection was framed as a complaint that the ad was sold as an "issue" ad when it was really intended to influence a federal election. 

     This may be a fair part of the objection.  It is not the only part.  For federal law increasingly favors clean speech, fair speech, by attacking from various directions nasty and irresponsible speech.  The same statute that aims to suppress "sham issue ads also included provisions to clean up speech more generally, one of which conditions candidates’ access to preferential broadcast rates on their publicly proclaimed acceptance of responsibility for any reference to their opponents.  47 U.S.C.§ 315(b)(2).  A variant of the "stand by your ad requirement," this provision presumes to hold candidates accountable for "negative"—harmful—speech directed at their opponent.  The prohibitions on "sham issue ads" is meant to keep "third party" rather than candidate advertisers honest in the same way.

     It is true, as some will immediately point out, that under the Austin decision (494 U.S. 652 (1990)), legislatures can limit speech paid with corporate or union funds, because of the unfairness inherent in the use of these resources to achieve, for corporations and unions, disproportionate political influence.  This argument is also dated; apart from its highly abstract character, it is strained by application to unions as well as to corporations, and to small nonprofit corporations as well as to large for-profit multinationals.  The more current complaint is that these organizations fund irresponsible speech—negative, scurrilous, manipulative.  In a word, dangerous.

     This is why an organization like Public Citizen objects to a proposal to protect forms of grassroots lobbying, it includes examples of "negative" appeals for pressures on officeholders.  Public Citizen understands what sells.  These broadcast ads are widely despised as pollutants, soiling the political process by debasing the language in proper political use.  While the proposed "PASO" requirements—which would prohibit any reference to a candidate’s fitness or character or any other electioneering slant—would protect against nasty speech, this is not enough to appease critics.  No protection against "election-influencing" will satisfy them; no assurance against "circumvention" will do.  For after all is said and done, the ads will run on simple messages, in periods of 30 seconds (sometimes 60 seconds), and their critical messages remain a distortion of the standard of fair political speech.  

     Buruma, in his critique of speech policing, refers to the self-elected representatives of the affected communities.  We have something like this in the so-named reform community, in which are found organizations proposing to speak for the best interests and most earnest aspirations of the larger public.  Few are membership organizations; those that are boast of few members.  Yet they have the power, as do their counterparts in the larger speech-policing community, to seize and hold the attention of the press, and this is all they need to convey a sense, however misleading, of their own representative authority. 

     Progressives have associated too much with speech restrictions imposed by elites in the declared interest of the people.  They have given away a fair amount of populist ground.  In doing so, they have aligned themselves with organized interests that will never want for influence—that speak in approved ways, through establishment channels. 

     How the organized Left came to see this as consistent with its mission, which is to provide every imaginable outlet for popular expression and participation, is not easily explained.  Some say that it is necessarily to equalize access to power, by restricting the reach of the wealthy and organized interests.  But experience has shown that those interests will always manage just fine, thank you, and that, as 2004 and thereafter demonstrated, state-imposed restrictions will be turned quickly on those in whose name they were originally justified.  Right now, before the FEC, the argument for more speech is not only made by the Chamber of Commerce.  An even larger community of advocates for this position is found on the progressive left, among organizations concerned with community housing and health care and economic justice and the rights of workers and consumers.  They would like to be heard, on their issues, and they have to ask the government for the right to do so.

     Is this fruits of progressive reform politics?  When the FEC decides this issue, perhaps it might ask:  who speaks for the largest share of the population and in their basic interest—these groups, or the professional reform advocates who would limit what they say in lobbying the powers-that-be?

Bob Bauer