Some of my friends here on the blog occasionally ask whether I ever change my mind about anything. They mistake the certainty, and consistency, with which I express myself for rigidity. There are a number of reasons for this. One is a certain… forcefulness… that creeps into my writing when I’m not trying to hold it back. Another is that, if I express it here, it’s usually an idea that I’ve tested many times over the course of decades. And I’m not likely to shift suddenly on a matter such as that.
But here’s an example of something I’ve changed my mind on…
Back when I was a special-assignments writer at The Jackson Sun in Tennessee — we’re talking late 70s, early 1980 perhaps — I would occasionally fill in when one of the editorial writers was on vacation. On one occasion, I wrote an editorial headlined something like “Yes, even Hustler.”
It had something to do with one of Larry Flynt’s legal battles. Basically, I was asserting that however disgusting his exercise of it may be, the free-press right guaranteed under the First Amendment applied to his publication as well.
Potter Stewart, who knew it when he saw it.
I would not write that today. My respect for the intent of the Framers has grown over the years, and I am far more reluctant to cheapen the Bill of Rights by inferring that they meant to assert a right to publish pornography. No, I’m not inclined to launch a crusade to ban such publications, either (which are almost quaint in view of what is freely available on the Web). I just wouldn’t take up my cudgel in Flynt’s defense today, because to do so would require dragging Madison, Hamilton and Jay into the gutter with him.
And I believe that would be wrong. The intent to protect citizens in expressing political ideas that may offend the government just seemed too clear to me. And no, I don’t accept the convenient canard that obscenity is in itself an inherently political statement.
The courts may not entirely agree with me all the time on this, but in general they have not granted commercial speech, or obscenity, the same protections as political speech.
What brought this to mind was something that Logan Smith — who is roughly the age I was when I wrote that defense of Flynt — posted yesterday on his blog, Palmetto Public Record:
It’s been less than a week since thousands of angry conservatives swarmed Chick-fil-A restaurants in South Carolina and across the country to support the fast food chain’s stance on same-sex marriage. Many expressed outrage that city officials in Boston and Chicago wanted to ban the restaurant, claiming that doing so would somehow violate Chick-fil-A’s “freedom of speech.”
This represents a fundamental misunderstanding of free speech and censorship, of course, but that’s beside the point. At least people are getting politically active — even if their form of activism is buying fried chicken.
However, we do agree that government officials who use regulations to target specific businesses are abusing their power. That’s why we’re waiting for those Chick-fil-A fans to launch a similar flash mob of support for another business being banned by city government for moral reasons — the Taboo Adult Superstore in Columbia.
When he called attention to his post on Twitter this morning, asking, “Why no defense of Columbia sex shop from Chick-fil-A supporters?” I replied, “Perhaps they believe (as do I) that “free speech” refers to POLITICAL speech. The Framers didn’t have sex shops in mind.”
You may argue that what Mr. Cathy engaged in was the exercise of religion, rather than politics, but hey — same amendment. More to the point, he was expressing himself on something that has undeniably become a political issue. And local government types in some jurisdictions were proposing to use governmental power to penalize him for it. (At this point, we could get really strict constructionist and say that this is not the same as Congress passing a law to abridge this right, and that would be an interesting conversation — but irrelevant to the case at hand. We’re not arguing the merits of a lawsuit here, but whether all those people who flocked to Chick-fil-A last week are consistent in their political ideas by not similarly defending a sex shop.)
Now, all of this said, I give Mr. Smith credit for not merely presenting the sort of empty, kneejerk, moral-equivalence argument that I fear I did all those years ago (the editorial is buried in a box somewhere in my garage, and fortunately not readily at hand). He gets into “adverse secondary effects,” which is more sophisticated than what I recall saying.
But I still say that the analogy is a false one. One would in no way be inconsistent to stand up for free speech rights in one case, and not the other. If I had been moved to participate in that Chick-fil-A demonstration, which I was not (aside from being, you know, allergic to chicken), I certainly would have felt no obligation to have defended the latter.
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“Yes, even Hustler.”
So did you have any trouble putting a years subscription on your expense account? Research.
Well, you aren’t allergic to lemonade, so you could have gone.
I do agree that “freedom of speech” should be limited in certain situations, but do not agree with your labeling of the parameters defining those situations. First, your note that you belief that Founders meant political speech is by your own admission an utter assumption with no pen to pad in the Constitution. Anyone can write an interpretive missive on Constitutional insinuation but that doesn’t make it anything more than an assumption.
Second, even if your assumption were the case, I disagree that freedom of political speech – but not “unmoral” speech – is an in way descriptive enough or all-encompassing of our speech freedoms by writ. See: religious, spiritual, philosophical, and, yes, moral speech being freedoms we certainly have. Your code of conduct, of morality, is perhaps rooted in the organized religious underpinnings of our society that define most of our beliefs in societal morality. Who named you the judge of what’s immoral and not? My point is that to assume political speech is fair game but unmoral speech is not, as so judged by consensus in the heart of the Bible belt, is both counter-logical and moot to the larger point: what’s believed to be true, whether true or not, is real in its consequences. That, most certainly, is the case with this fast food frenzy.
I agree Chic-Fil-A has a right to its opinion. I disagree that the mass upheaval of free-speechers coming to its side actually find spar with its beliefs as the root of their issue. Rather, they just like their chicken more than they care about gay rights. After all, most of them surely found fault with the protesters at Westwood Baptist who were exercising their right to free speech. See what I did just there – I made an assumption too.
“Unmoral speech?” Hmmm. I disagree with conservative pundits, and the Supremes, in their assertion that spending is speech. Allow me to take this occasion to assert that a dildo isn’t speech, either.
By the way, Ben, while I make no apologies for my habits of reasoning intuitively, particularly in areas where I’m fairly well-read (such as the times and ideas of the Framers’ generation), let me note that while my initial Twitter reply to Logan was based in what you might call “assumption,” I did cite here the distinctions that courts have made between political speech and commercial speech, or obscenity.
That said, if the courts were entirely silent on the subject, I would still assert what I believe the Constitution means, and be comfortable doing so. Reading stuff and giving my honest opinion of what it means is kind of what I do here…
Oh, and while I’ve got you, Ben… wasn’t I trying to sell a blog ad to a candidate you work with?
How about it, eh?
(Readers are invited to critique my sales pitch here. Somebody needs to…)
You had it right the first time. Flynt’s nasty magazine should be protected, with some limitations to restrict young people from buying it.
Seriously how is it in any way shape or form the government’s pergogative to define what political speech is. Heck, I find speeches given by priests condeming contraceptives highly offensive. Yet it’s also clear that is protected speech. Brad, I’m afraid your communitarian thinking has clouded your judgement to the point that you’ve become an extremist radical. And that is a very dangerous place to be.
“Extremist radical” isn’t something I’m used to being called.
In any case, I hope you won’t mind if I go ahead and disagree with you on that point, in my own humdrum, middle-of-the-road way…
Kathryn said, “Well, you aren’t allergic to lemonade, so you could have gone.”
Yeah, but I wasn’t moved to. The allergy thing was a secondary, supplementary sort of reason.
Never haven’t entered such an establishment, I’ve not sampled the lemonade. Is it good?
Brad is an extremist moderate.
Anyone who openly and consistently advocates for causes that push freedom aside in exchange for a set of circumstances that are ideal ONLY to the person who advocates those ideals is, by definition, a radical. In many, many cases Brad advocates for a policy, law or ruling that benefits Brad and adversely affects others. This support for anti-porn laws is the latest iteration. Another is marijuana. Contraception is still another. Video poker yet another. Blue Laws. Ditto. And the list goes on and on.
Do we see Brad advocating the prohibition of coffee shops? How about institutions that are responsible for the slaughter of 15,000 people annually on the nations highways, affectionetely called “pubs”? (He even glorifies the institutions with these dangerous institutions with his “Pub Politics” series).
Yet Brad cannot or chooses not to see how perverse and radical that kind of thinking really is because he’s locked into this moral ‘bubble’ that prevents him from empathizing with others who are different. He regards pot smokers as the radicals, not the people who would throw someone in jail for growing a couple of plants. Yet if you step back, take a deep breath and objectively evaluate the two options it is crystal clear that those who wish to jail the pot smokers are the true radicals, not the smokers. Those who wish to shut down the harmless porn stores are the radicals, not the folks who want to read about different lifestyles. Only someone trapped inside a bubble of accepted “normalcy” could fail to see who the true radicals are.
There’s too much sugar in it and the chicken is tough and loaded with chemicals.
The answer to the question, “Why no defense of Columbia sex shop from Chick-fil-A supporters?” is, it seems to me, that most people only really feel moved to publicly defend violations of speech with which they agree.
Also I’m not sure what Brad means when he says, “I disagree… that spending is speech.” It’s pretty clear that restrictions of how you spend your money can be restrictions of speech. But beyond that, I’ve never seen anyone — Supreme Court justice, conservative pundit or otherwise — argue that “spending is speech”.
Make a better picture of my point here, Brad: http://bgwsolutionsllc.com/2012/08/08/1st-amendment-protections-political-speech-and-assumed-morality/ (admittedly, a very small shameless plug, but more b/c the whole entry was there). We can disagree with this because it’s rooted in philosophy. Picking and choosing what’s moral vs. immoral re: this law paves the path for finding somethings I find immoral to be found moral by the body politic. THAT is why the law says ALL speech. I appreciate you checking out the post. And, yes, I still need to get an answer on that…and you know who the candidate is at this point. Cheers.
…and so I guess I come down on this one on the side of Logan Smith.
Well, I didn’t want to embarrass said candidate by naming him/her…
I’m glad I stirred you out of your blogging lethargy.
I have to rather strongly assert, however, that your characterization of my argument is way off base here: “his point is that the argument from many liberals asking why these Conservative free speech protectors aren’t also rallying in support of said sex shop’s free speech, is a incorrect argument…because in this case the sex-shop is immoral.”
I did NOT assert that the sex shop is immoral. Or moral. Or amoral. I did not assert anything about “said sex shop’s free speech” except that it was not political speech.
You see the difference? It’s pretty stark.
And it’s Warthen, not “Wharton.”
The lemonade is, as all lemonades are to me, too sweet 9 I go for the diet kind, though), but you can dilute it to a nice strength. It tastes like it comes from fresh lemons.
I hear their peach milkshakes are strawcloggingly full of peaches, but you can’t have milk.
I wasn’t suggesting that you go, but saying that your assertion of allergies was a cop out. Thanks for taking a clearer stand (and by “stand,” I mean “crouch.”)
@David: Buckley v. Valeo—WFB’s brother won the right to spend all he wanted on his campaign because the Supremes said money is speech.
Agree with bud. You are defining a “thing” which cannot inflict any harm to anyone as worthy of regulation by the government according to your own prurient standards. A sexual device is not a gun, not a car, not a bottle of alcohol, not even a cigarette. Your community standards are your business, not the government’s.
I agree it is not a freedom of speech issue. It’s just a freedom issue. Obviously sex devices exist and are bought and sold freely and frequently. Why is it that when you don’t like something, your immediate response is that the government should do something to stop it?
Yes, they did. And George Will says it fairly frequently.
Excuse me, I also offered that I was making assumptions, and if there’s one underlying theme to me it’s that I think we’re all entitled to our beliefs, and just hope that those don’t incite horrible social consequences.
I find it implicit to the argument that you feel the sex shop to be immoral given that protection of it by free speech would amount to “dragging (its writers) into the gutter.”
Given that, I find it implicit to the assumption of that logic that you are able to differentiate “political speech” from “immoral speech,” hence my blog. I disagree with that logic.
Just as I find same-sex marriage to be a political issue, I find a sex shop’s legal standing by zoning ordinance to be a political issue. Not quite sure how either differs at all actually, unless of course you see one as fundamentally immoral and thus outside the scope of free, political speech.
I do agree that we’re debating whether “whether all those people who flocked to Chick-fil-A last week are consistent in their political ideas by not similarly defending a sex shop.” I’m saying they aren’t. It’s just as politically motivated an issue, you just took it out of that conversation by automatically determining it gutter-talk that Framers wouldn’t have considered.
and apologies for the misspelling of the name, no offense meant.
4 out of 5 correct spellings in the same lengthy post isn’t bad especially if you’re typing quickly. I appreciate your attention to detail though. A great editor.
@bud – “You had it right the first time. Flynt’s nasty magazine should be protected, with some limitations to restrict young people from buying it.”
Hustler magazine is like Weekly Reader to what can be found online with a few keystrokes at any elementary school computer terminal.
“The lemonade is, as all lemonades are to me, too sweet 9 I go for the diet kind, though), but you can dilute it to a nice strength. It tastes like it comes from fresh lemons.”
There’s a sourpuss joke in there somewhere.
OK, folks, take a deep breath, step back… go back and read what I wrote.
Doug, Ben, and Bud are arguing rather vehemently against things I didn’t say.
Doug says, “You are defining a ‘thing’ which cannot inflict any harm to anyone as worthy of regulation by the government according to your own prurient standards.” No, I’m not. I said nothing of the kind. I said that people who demonstrated for “free speech” at Chick-fil-A were in no way being inconsistent by not demonstrating for “Taboo.” Honest. Go back and look. I said it really, really clearly.
Although… if we WERE having a discussion about assertions of community standards here, I’d have to argue with this internally illogical sentence: “Your community standards are your business, not the government’s.” Well, first of all, I, personally, can’t have “community standards.” Only communities can. And, by definition, community standards are the business of the community. But as I said, that’s not the topic of this post. I’m not interested in addressing community standards, or morality (in Ben’s mistaken impression), or anything other than whether there is a “free speech” issue involved in the Taboo case that is the same as that which people have asserted in the Chick-fil-A hoo-hah. And I’ve said there isn’t.
And Ben, as for “I find it implicit to the argument that you feel the sex shop to be immoral given that protection of it by free speech would amount to “dragging (its writers) into the gutter.” No, that was Larry Flynt I was speaking of in that instance. I’ve never seen the Taboo shop. I’d seen Hustler during the era under question, and I think the “gutter” characterization is fairly accurate in that instance. It almost made “Playboy” seem high-minded.
Please, folks, if you’re going to argue with me, argue with what I actually say.
And regarding the lemonade question… I had to smile because it occurred to me that Kathryn likes her lemonade the way Stonewall Jackson did.
And before there is any more leaping to assumptions here… I did not say Kathryn was a Confederate general. 🙂
I think Ben is still more right about the moral angle. Brad is trying to paint an issue as strictly commercial when clearly it isn’t – well, not in this community. And that’s why Ben is right. Otherwise, we (and frankly nearly every localized place) would end up as an intolerant, insular, patronizing, narrow-minded…y’all get the drift. So it’s important that we remember that speech is expression of a viewpoint. A store like this isn’t selling widgets and washers. At the same time it isn’t selling anything illegal either (I would guess). It is , however, selling items that spark questions of civic and religious morality. To me, that makes this more protected than regular commerce.
This whole thing cracks me up though. The City Council is acting like prudes, the shop-owners like rubes and at the end of the day the same stuff is being sold in the same zip codes, just minus the collection of taxes on internet sales.
What would have happened if the owners had instead incorporated as a not-for-profit Christian ministry in support of sacred matrimony – a Christian bookstore with a twist? Video Poker will always look nasty and offensive, a sex shop didn’t have to revel in it’s sleaziness to turn some inventory.
re: “the chicken is tough and loaded with chemicals”
J — did you know that 1/3 of Chick fil a chicken is purchased from KOCH
[http://www.kochfoods.com/contact-us.php]
…owned by a guy who still lives with his mother outside Chicago?
Vewy strange arrangement IYAM (“if you ask me”).
Stonewall Jackson liked aspartame?
FWIW, sexually-oriented businesses have been shown to correlate with an increased crime rate in the environs, and thus may be stringently zoned.
Same sex marriage is a political issue, but to those who wish to marry the person they love, it’s a personal one. The political is personal, to invert the old counter-culture saying.
Brad and Kathryn:
“Money is speech” is a three-word phrase that is obviously not literally true. So what do George Will and others mean when they say it that goes beyond that of a restriction of how money is spent being a restriction of speech? I tried to read the headnote of that court case, Kathryn, and I didn’t understand how it went beyond that.
I still do not see any evidence of differentiation between same-sex marriage and the Taboo shop as one being political and the other not. Both are very politicized. It’s clear from your intro. that you have an aversion to pornographic imagery as a form of free speech that has formed your view of it’s legality. It can reasonably be assumed, therefore, how that would outline your stance – indeed, a political one, that “one would in no way be inconsistent to stand up for free speech rights (for Chic-fil-A), and not (for Taboo sex toy shop)” because you are able to conceptually differtiente the free speech of pornography from the free speech of being against same-sex marriage. That is a political opinion. And both are political issues…very much, in my mind, analogous.
Ah, but see, I AM “conceptually differentiating,” Ben. It’s some of y’all who are lumping unrelated concepts together.
These distinctions are important to me. They are what sets me apart from the left and the right, both of which look at any expression in terms of whether it tells them the speaker or writer is on THEIR side or the OTHER side. And the world’s just not that simple. There aren’t just two sides. I’m not on either of their sides. You don’t automatically think X on issue A just because you think Y on issue B. Issues ARE separate, and can and should be examined individually.
As for the point about Hamilton… I could castigate Madison as well, for being Hamilton’s partner in crime in infecting our politics with rabid partisanship. But I choose to honor him for the Constitution.
See how I separate those things? The world of the mind is not about Good People versus Bad People. It’s about good ideas and bad ones. And the same person will embrace both good and bad ideas, because none of us is perfect. There are no clear SIDES, so that if you are on this side, all your ideas are good, and all your ideas are the same as everyone else’s on that side — unless you have surrendered your right to think, which too many people do in the name of parties, and which I find insupportable.
And Kathryn — thanks so much for pointing out the obvious concern of the council, which is, once again, separate and apart from this Kultufkampf stuff. I didn’t get into that because my purpose in writing this was not to advocate for the council’s position, but to make the above-iterated point about consistency.
That said, I feel I must, in the cause of the clear definition of terms which has become a subtext of this post, address this: “Same sex marriage is a political issue, but to those who wish to marry the person they love, it’s a personal one.”
We’ve been around this mulberry bush before, but here goes again. The RELATIONSHIP is personal, and nobody else’s business. It only becomes political when the parties involved seek to involve the state, which is what we’re talking about when we get into the legal definition of marriage.
That presents a POLITICAL issue about which the public, the state, the polis, or perhaps I should more accurately say body politic, must make a decision. Which is about as clear a definition as I can give you of something about which people would engage in POLITICAL speech.
Anyone who thinks it is not a political issue should go tell the president of the United States, who recently made a major political statement on the subject.
I didn’t mean to imply that you were incapable – nor I – of looking past partisanship. In fact, I said anything but that. And I didn’t reference anything about partisanship. What I said was you keep describing that same-sex marriage is a political issue. I never denied that – in fact, noted as much. What I probed above was your explanation for how the sex store ISN’T. I’m still looking for how you come to differentiate them. I’m well aware that you have conceptually – and I’m disagreeing with their political context. Both are viewed as either lacking or having moral and/or effacicious ground in contributing to society. Both have sides that agree or disagree with them. Both have been the subject of political discourse. And both, to date, have been prevented either, again, because of naysayers on the social and/or economic sides of each debate. That is politics. So tell me, Brad, how one is political and the other isn’t? All you’ve said is that you do in fact differentiate between them – not how/why.
Ha! And the spelling errors above show what happens when you’re clearly passionate about an issue and type way too fast. Efficacious, but I rather like effacicious. I’ll also say, I appreciate the productive conversation nonetheless. Clearly just don’t see eye to eye on this one.
Ahhh… Again, not what I said. I didn’t say one issue was “political” and the other not. I can’t imagine why I would have. I was reacting, just then, to Kathryn’s assertion that the same sex issue was “personal.” I was saying the relationship is personal, but when society as a whole is asked to dub it “marriage,” when the body politic is called into it, then it’s by definition political.
I wasn’t discussing the sex shop one way or the other at that point. Just reacting to Kathryn…
Brad, ahh indeed, I’m not an English major but I feel myself fairly capable at reading comprehension – I’m not trying to mix your words. I feel you’re merely reflecting statements to get around my obvious question. My understanding of everything is thus: your point is “one would in no way be inconsistent to stand up for free speech rights (for Chic-fil-A), and not (for Taboo sex toy shop).” I feel you haven’t dileneated why this is so – why the two scenarios differ in terms of falling under the rights of free (political) speech. I feel they do not differ. You’ve said the Chic-fil-A comments fall under free (political) speech, but otherwise haven’t noted why the Taboo shop does not. You’ve only noted that you do “conceptually differentiate” between the two…without clearly noting how the latter is not political. Based on something I don’t even necessarily agree with (the 1st Amendment is based on POLITICAL free speech), I’m operating under its assumption and questioning why Logan calling for its supporters to support the Taboo sex shop to remain consistent in some way differs. By all my points, I feel the sex shop debate is rooted in political free expression. I don’t know how I could be more clear in my intentions.
These distinctions are important to me. They are what sets me apart from the left and the right, both of which look at any expression in terms of whether it tells them the speaker or writer is on THEIR side or the OTHER side. And the world’s just not that simple. There aren’t just two sides. I’m not on either of their sides. You don’t automatically think X on issue A just because you think Y on issue B. Issues ARE separate, and can and should be examined individually.
-Brad
Talk about criticism of something that was neither said nor implied. I can only speak for myself but I find that comment to be a leap of faith into a direction I didn’t intend. All I am saying is that freedom should be defended even when the freedom in question is somewhat offensive. I don’t think government can or should decide what is offensive in the sense of ordaining a particular practice reasonable or unreasonable to community standards. I find it highly offensive to publish a post that essentially invites people to patronize a “pub” and then in the very next blog suggest it is acceptable for the community to regulate (or perhaps even ban) “porn shops”. That selective approval (even promotion) of one vice while attacking another is wrong.
I know that is slightly different from the free speech issue which Ben has covered quite persuasively. But it’s a point that needs to be made.
Brad, when you conceived this controversial 1st Amendment post, were you aware of the related court challenge:
“A Facebook court battle: Is ‘liking’ something protected free speech?” – WAPO; 8 Aug 2012
Very timely issues!
Ben, I confess I misunderstood YOU that time, focused as I was on Kathryn’s remark. I apologize.
Yes, the difference here is that you consider operating the shop to be political speech, whereas I see that as an excessive stretching of the meaning of words. To operate a shop is not to engage in political discourse. Perhaps if the shop sold bumper stickers, and prominently displayed ones saying “Down with Mayor Benjamin,” and the city sought to close it down for that, you’d have a First Amendment issues as clear and obvious as the chicken restaurant one.
The First Ammendment NEVER uses the term POLITICAL speech, therefore any discussion that makes such a distinction is meaningless.
No worries, Brad, and I now how have a clear understanding of your perspective of how they differ. And while I agree with Bud, We do disagree on this free speech argument, Brad. But even operating under the political speech assumption, I find this logic faulty: “To operate a shop is not to engage in political discourse. Perhaps if the shop sold bumper stickers, and prominently displayed ones saying “Down with Mayor Benjamin,” and the city sought to close it down for that, you’d have a First Amendment issue.”
Here’s why: while I don’t consider operating the shop to be “political speech,” per se, I do feel it to be a free form of expression, as protected under the 1st Amendment – just as a Reggae, nude art, or bohemian clothing store might be (all stores existent in Cola). No need here to get into the conversation about a store rooted in cultural expression vs. one rooted in basic day-to-day tools (food, tools, etc)., as that’s beyond the point.
The reason why it was a violation of free expression is rooted in the government’s action, not the constituent’s (in this case the Taboo shop) actions. The city government sought, successfully, to prevent the store from operating. And they did so because of what the store was selling…because it is form of expression (that the store supports pornographic imagery and sexual expression) that was viewed as vulgar (read: immoral, as outlined earlier) to some City Council members. That is a direct violation of the 1st Amendment as I interpret the law, just as a Mayor saying to Chic-fil-A you can’t operate here because what you have expressed is vulgar (immoral) to those Mayor’s/city’s voter majority.
The facts are quite clear. Just because something is not vocally expressed from an American does not mean its actions or intended actions (if you’re prevented from acting) are not a form of free expression. That’s the intent of the 1st Amendment. And in both cases presented, the government has prevented intended actions. It’s a free speech violation. Logan’s point holds.
My take of this issue is that the city is regulating all “sex Shops” which they can do but can’t regulate out of business.
The politicians in Chicago and Boston were trying to punish(regulate) just one business for speech they deemed unacceptable not all chicken stores.
So in my mind it is not hypocritical to support one chicken store without supporting “sex shops”.
Mab
Check out the chemical ingredients in the chic-fil-a sandwich.
http://www.dailykos.com/story/2012/08/09/1118200/-Yo-bigots-please-DO-eat-at-Chick-Fil-A-every-day