October 23, 2008
New York Times Supreme Court reporter Adam Liptak has thrown
new light on the long-simmering battle over the Second Amendment's true meaning
and import in a fascinating October 21 front-page piece. Liptak, who deftly
took over the Times' Supreme Court coverage from the recently-retired and much
respected Linda Greenhouse, points out that the text is anything but crystal
clear: "A well regulated militia, being necessary to the security of a free
state, the right of the people to keep and bear arms, shall not be infringed."
The meaning of the amendment has become so controversial that even some
prominent conservatives have an issue with the Supreme Court majority that
recently came down, ostensibly, on the conservative side of the gun-control
issue.
Does the Second Amendment protect the right of only state
militias to stock weapons for use, as appropriate, in emergency peace-keeping
operations, or may individual citizens rightfully posses arms as well? A
back-and-forth gun rights shouting match has ensued, from the days of minutemen
to the cold-dead hands of the late Charlton Heston. Yet few have realized the
futility, or at least the lack of necessity, of this debate. An interpretation
of the Amendment as protecting an individual right hardly means that "gun
control" is unconstitutional. It is not the end of the world: Boston,
New York City, and Los
Angeles are not about to replicate the gun-slinging
towns immortalized in John Wayne movies.
Some conservative judges and academics, Liptak reports,
have criticized the Supreme Court's 5-to-4 decision to strike down a D.C.
handgun ban in District of Columbia
v. Heller. The hypocrisy, critics say,
in Justice Antonin Scalia's majority opinion articulating a protection of the
individual's right, is that the high court's right-leaning bloc is taking the
very same subjective approach to constitutional interpretation for which they
attacked the left for decades (in, for example, the abortion arena). This
judicial activism, they claim, substitutes personal views for the meaning
intended by the Founders, and, more importantly in this instance, substitutes
the justices' views for those of state and local governments. By extension,
this method of constitutional interpretation improperly confers powers on
unelected judges rather than on the elected representatives of the citizenry.
In this titanic Second Amendment battle, the thinking has
been that if the Constitution protects the individual's right to bear arms,
then gun control must be unconstitutional. The Heller opinion, obviously aimed
at settling the question once and for all, appears not to have done so -
proving that the culture war between right and left has become so useful to
both sides that any attempt to move forward is promptly rejected - even by some
of the ostensible victors, since they are more desirous of continuing the war
than of winning a long-and-hard-fought battle. However, the dispute, vitriolic
though it has gotten, is truly an artifact of the culture war, and not a
serious academic or constitutional dispute.
Let's assume, for argument's sake, that the Supreme Court
majority is correct, and that the Second Amendment protects the right of the
individual to possess, even to use, firearms. (This happens to be my view of
the meaning of the text, but, as I'll make clear in a moment, it hardly matters
with regard, ultimately, to the issue of the constitutionality of gun control
legislation.) What impact would such an interpretation have on the power of
federal, state, and local governments to enact legislation controlling, even
limiting, the exercise of that right? Answer: very little.
Consider another cherished American liberty unquestionably
protected by the Bill of Rights - freedom of speech: "Congress shall make no
law...abridging the freedom of speech." [emphasis added] On its face, the First
Amendment is absolute - "no law" may interfere with this freedom. (As the late
Justice Hugo Black, a near-absolutist with regard to First Amendment
interpretation, famously asked prosecutors and attorneys general arguing for an
exception in, for example, obscenity cases: "What part of ‘no' can't you
understand?")
Yet there are, and have always been, recognized exceptions
to "no law." Legislatures have long outlawed, prosecutors and police have long
made arrests for, and courts have long punished defendants for purveying
"obscenity." Breaches of classification laws in the national security arena are
deemed criminal, deserving of long prison sentences under the espionage
statute. And speech, regardless of content, may be punished because of the time,
place or manner of its delivery. For example, touting a candidate for public
office by blaring through a bullhorn at three
o'clock in the morning in a residential neighborhood may be core
political speech, but it is also against the law ("disturbing the peace") under
the circumstances. And, of course, you can't shout "fire" in a crowded theater.
The details of how and where a constitutional right is exercised dictate the
difference between protected activity and commission of an offense.
Thus, even if (as has now been held by the high court) the
Second Amendment protects the right of individuals to bear arms, that right may
be restricted and conditioned by reasonable regulation - gun control statutes
and ordinances. So the Supreme Court's majority's resolution of the Second
Amendment's meaning makes perfect sense - there is an individual right to bear
arms, but reasonable regulation is likewise constitutional. Both liberals and
conservatives should stop arguing about this long-running battle in the culture
war and get on to more important and substantive issues. It's time to stop arguing
over how many guns can be balanced on the head of a pin, and by whom. The
constitutional gun control battle is over, and all that remain are the details
that will be ironed out, case by case, by municipalities, states, and the lower
state and federal courts in the years to come.
Now can we please get on to the truly urgent constitutional
and other battles that remain?
October 14, 2008
Jim Morrison and
the Doors were scheduled to play their
number one hit, "
Light My Fire," on a 1967 episode of
The Ed Sullivan Show, but there was one line to which the long-time
host took offense. "Girl, we couldn't get much higher," sparked Sulivan's ire,
and he demanded the line be re-written for the late-night show's performance.
Morrison agreed. But when the cameras were rolling, the enigmatic front man
strayed from script and -
gasp! - sang the original line. Sullivan was furious
- he refused to shake Morrison's hand after the performance and vowed never to
have the L.A.
band on his program again.
This chapter in rock'n'roll lore is now more than four
decades old, but it appears that late-night CBS censorship is not a thing of
the past. Last week, while taping an episode for the October 27th edition of The Late Late Show With Craig Ferguson,
CBS representatives informed a band member that he could not wear a pro-Obama
shirt while performing. Randy Randall, guitarist for the experimental rock
group No Age (also from L.A.), was told that donning the threads would violate
the Equal Time Rule, a 1934 law aimed at giving politicians equal on-air time.
Surely it was a different beast than Morrison faced, but the
effect is strikingly similar - censoring artists' expression, whether
quasi-cultural or expressly political.
Equality under the
law
The Equal Time Rule has gone through several changes and has
been adapted to new media, but the crux remains the same: a station that gives
or sells time to one candidate must make the same offer to all other candidates
for that office. (It should not be confused with the Fairness Doctrine, an FCC
policy - abolished in the 1980s - which required broadcasters to present
contrasting views in matters of public controversy.)
The rule's rationale is rooted in basic notions of evenhandedness
- if a product is available, it must be sold to all qualified customers on an
equal basis. At the time, it was considered progressive policy - bear in mind,
this was the era of "separate but equal." But out of this quite sensible rule
arose a doctrine that has inhibited network's political programming.
Exemptions to the
rule
The rule focuses on giving equal time to candidates, but it's a tough sell to
extend this to the apparel of a fresh-faced punk rocker. (Singer-songwriter
Regina Spektor recently wore an Obama belt while performing on NBC's Late Night with Conan O'Brien - with no
FCC consequences). Apparently,
though, CBS was sufficiently scared.
"Those candidates who are on the ballot in at least 10
states could have asked for equal time from the network. Given that, CBS employees followed guidelines
and asked the band member to remove his T-shirt," according to a CBS statement
made last week to the Los Angeles Times.
This interpretation contrasts current readings of the Rule.
In 1959, with broadcast technology changing, several exemptions were made to
the law. Equal opportunity requirements were null in cases of news interviews,
newscasts, news documentaries, and on-the-spot coverage of
news events. In short, if a candidate appears on a bona fide news program, the
station would not be obligated to afford equal time to his/her opponent.
Equal
time in a modern context
In today's context, where the lines
between news and entertainment are often unclear, the FCC has been reluctant to
apply the equal time provisions. The FCC "has expanded its category of
broadcast programs exempted from political access requirements to include
entertainment shows that provide news or current event coverage as regularly
scheduled segments of the program," according to Dwight Teeter,
author of Law of Mass Communications. A late-night program, which often uses news as fodder for jokes, would
appear to fit this paradigm.
Nonetheless, No
Age was just minutes away from taking the stage when a "talent booker" informed
Randall he couldn't perform with his T-shirt. At first, they considered walking
off the set. Instead, Randall chose to turn the shirt inside out and write
"Free Health Care" in scribbled Sharpie.
"I felt it was important to voice my choice for presidential
candidate, Barack Obama, seeing as the episode would air eight days before Election
Day," Randall wrote in an email to Pitchfork, a music website. When that was
denied, "Dean [No Age's drummer] and I decided that it would be better to take
advantage of the stage we had at our disposal...Access to affordable health
care is an issue very near to my heart for many personal reasons and I am sure
that many of you can relate."
Who's to blame?
As this story gains further coverage, CBS - like it did 40
years ago - will be left looking out-of-touch and all to eager to please
government bureaucrats.
But maybe it isn't entirely CBS's fault. Following the
infamous 2004 Superbowl "Nipplegate" affair, CBS was fined $550,000 by the FCC.
Though the fine was overturned on appeal, you can be sure that the "suits in New York" (Randall's
words) remember the legal headache that ensued.
The broadcast company (along with other major stations) also
has an important Supreme Court appeal in the upcoming term. The case centers on
the ability of the FCC to impose fines for "fleeting expletives" or spontaneous
(as in, not planned by the broadcaster) usage of curse words in live broadcasts.
In these cases, the live programs did not allow CBS the
opportunity to "bleep" the expletives or "blur" the oh-so-horrid nipple. But in
the pre-taped Late Late Show, CBS
foresaw an opportunity to avoid arousing FCC intervention, and it chose the
most conservative reading of an archaic rule - instead of allowing an artist's expression.
It is, unfortunately, the chilling effect that government regulation has on
speech: even in the most crucial moments, when artists feel compelled to speak
out on politics, their speech is stifled. Regardless of the Equal Time Rule's
good intentions, it has now clearly become a tool for dampening political
discourse.
