The
Bill of Rights is moribund in today's America because in the view of many
powerful people it should never have been born.
James Madison said two centuries ago, "We are free today
substantially, but the day will come when our Republic will be an
impossibility. ... A Republic cannot stand upon bayonets, and when the day
comes, when the wealth of the nation will be in the hands of a few, then
we must rely upon the wisdom of the best elements in the country to
readjust the laws of the nation to the changed conditions." Has this day
arrived?
It is sanctified
by words during the best of times, when it is not needed; It is ignored by
deeds during the worst of times, when it is needed most; It is presented
as the bedrock of American freedom; It is in reality as fragile as a pane
of glass; It is praised when one requires its protections; It is scourged
when one’s foe demands those same protections; It is promoted as a
vibrant, living document; It is dying a slow, but certain, death.
With apologies to
Charles Dickens for paraphrasing the opening sentence of his immortal
classic A TALE OF TWO CITIES, this opening passage describes the demise of
a single document: The Bill of Rights.
The Bill of Rights
is moribund in today’s America because in the view of many powerful people
it should never have been born. During the Constitutional Convention of
1787, the delegates, having recently won a war against a monarchy, were
astutely aware of the corrupting influence of political power,
particularly when concentrated into too few hands.
James Madison went so far as to state, "The truth is that all men having
power ought to be mistrusted. So a system of "checks-and-balances" was
devised to ensure that no individual, or branch of government, would
obtain absolute power.
But a conflict
arose over what rights and freedoms, if any, should be extended to the
governed. Some delegates believed the "checks-and-balances" system alone
guaranteed that the government would never abuse its authority, and were
distrustful of vesting too much freedom in the common people, whom
Alexander Hamilton described as "a great beast."
Others, however,
recognized that the potential for abuse still existed. In support of this
belief, Patrick Henry remarked: "Show me that age and country where the
rights and liberties of the people were placed on the sole chance of their
rulers being good men, without a consequent loss of liberty! I say that
the loss of that dearest privilege has ever followed, with absolute
certainty, every such mad attempt."
So, to ensure
ratification of the Constitution, it was agreed that amendments would be
added to acknowledge there were certain rights and freedoms so sacred to
the individual they could not be removed or suppressed, either by the
government or the "tyranny of the majority." On December 15, 1791 the
first ten of these amendments, known collectively as the Bill of Rights,
went into effect.
When America was
primarily an agrarian culture, the fundamental weaknesses of the Bill of
Rights largely remained dormant. But, as the nation became more
industrialized and as wealth and power in the private economic sector
became concentrated into fewer hands, these weaknesses became more
palpable, revealing that the tyranny to be feared was not from the
majority of the people, but the minority of the people with the majority
of the money.
Even a cursory
examination of the evolution of the Bill of Rights reveals two such
weaknesses: First, the Bill of Rights only dictates what the government
CANNOT do. (For example, it cannot interfere with an individual’s right
to freedom of speech or religion, and it cannot deprive a person of the
right to vote because of race or gender). It does not (with limited
exceptions regarding the rights of criminal defendants) place any
affirmative duties upon the government; Second, the Bill of Rights (again
with limited exceptions) does not apply to the private economic sector.
Just because somebody composes a song does not mean any radio station is
obligated to play it; Just because somebody writes a Letter to the Editor
does not mean any newspaper is obligated to print it; Just because
somebody authors a book does not mean any company is obligated to publish
it; And just because somebody produces a motion picture does not mean any
movie theater or television
station is obligated to show it.
The first problem
these weaknesses create is fear of economic retaliation, also known as a
"chilling effect," which can detrimentally affect one’s willingness or
ability to exercise Constitutional rights. Most Americans depend upon the
private sector for their incomes and material needs and desires. As the
late playwright Rod Serling once wrote: "They pay you a certain amount
each year until you need that amount to live on. Then you spend the rest
of your life afraid they’ll take it away from you." Therefore, if the
exercise of a Constitutional right, such as freedom of speech, could
result in the loss of employment and the inability to provide food,
clothing, health care, education and shelter for one's loved ones, all but
the most intrepid will remain silent.
This consistently
confines the ability to exercise basic Constitutional rights to those
individuals or groups wealthy enough to weather any economic reprisals.
That reality was dramatically accentuated during the "Red Scare" of the
1950s, when Joseph McCarthy’s Senate Committee, in conjunction with the
House Un-American Activities Committee (HUAC), employed a tactic known as
"prescriptive publicity." People summoned before these committees who
were perceived as hostile or uncooperative were routinely fired from their
jobs and "blacklisted" from future employment. The late Mark Goodson, a
television game show producer during the McCarthy era, stated in a 1991
New York Times article "If I’d Stood Up Earlier . . ." that he had even
been asked to fire
an employee simply because she had the same name as a suspected communist.
Although
occasional concerns were raised about the devastating impact McCarthyism
was having on the Bill of Rights, critics were hastily silenced by the
fear of being labeled "communist sympathizers, fellow-travelers, or
un-American." Tragically, as McCarthy informant Harvey Matusow detailed
in his book FALSE WITNESS, informants who had been encouraged and/or paid
to lie were the primary accusers of many of the people whose lives were
destroyed during this period.
Times have not
changed very much. In recent months actors like Whoopi Goldberg and Danny
Glover lost corporate sponsorships because of their political activities
and the Dixie Chicks were blacklisted from radio stations owned by Cumulus
Media and Clear Channel. Those who recognizedthe lies of George W. Bush
and/or opposed the Iraqi war were easily
muzzled by accusations of being "unpatriotic, un-American" or "failing to
support the troops." And, just a few days ago, Sinclair Broadcasting
Group, owner of sixty-two television stations throughout the United
States, fired its Washington Bureau Chief Jon Leiberman after Leiberman
criticized Sinclair’s plans to broadcast over public airwaves, roughly two
weeks before the election, a documentary hostile to presidential candidate
John Kerry. (In a case of ironic justice, Sinclair itself, after
suffering economic retaliation from its shareholders, chose not to air the
anti-Kerry documentary in its entirety).
Sadly, even if
poor or middle-class people suffer no economic retaliation from an
employer for the exercise of a Constitutional right, they still face the
specter of "civil law." Although speech is usually not punishable in a
criminal sense, if it is found to be libelous or slanderous monetary
penalties are often imposed upon the speaker.
The positive
aspect of civil law, as demonstrated by the work of organizations such as
the Southern Poverty Law Center, is that organizations or individuals who
incite others to violence are often compelled to financially compensate
those victimized by this violence. The negative aspect is the proclivity
of wealthy individuals or organizations to file SLAPP suits--an acronym
meaning "Strategic Lawsuits (or Litigation) Against Public
Participation"--against members of the poor or middle-class who have
engaged in speech activities as mundane as writing a letter to their local
newspaper. Although those filing SLAPP suits know they have little chance
of winning, their strategy is to inflict emotional distress and financial
hardship
upon those engaged in speech activities, thereby discouraging others from
engaging in similar speech.
Although
statements presented as factual are libelous and/or slanderous if found to
be false and injurious to one’s reputation, opinions are protected by the
Bill of Rights. Unfortunately the line of demarcation between what
constitutes a statement of fact and an opinion is often
blurred. By forcing a court to determine whether something is fact or
opinion, those filing SLAPP suits can delay the timely publication or
dissemination of speech materials. For example, the release of Peter
Matthiessen's book IN THE SPIRIT OF CRAZY HORSE, about imprisoned
Native-American activist Leonard Peltier and the American Indian Movement
(AIM),
was delayed for several years because of allegations it libeled some of
the people mentioned therein.
This leads to the
second problem: While the wealthy and powerful are often the ones most
capable of exercising their constitutional rights, they are also the ones
most capable of denying those rights to others through the use of
censorship.
Besides the
previously mentioned example of this tactic being employed by Cumulus
Media and Clear Channel, there has also been censorship through
intimidation, as evidenced by CBS Television’s refusal to air THE REAGANS,
a mini-series that right-wing critics claimed did not display the former
president of the United States, or his family, in a favorable manner.
When Showtime, a cable-based movie channel, decided to air THE REAGANS
instead, Republican (GOP) National Committee Chairman Ed Gillespie, who
apparently (to paraphrase the late comedian Will Rogers) never met a
hypocrisy he didn't like, said "Misleading a smaller audience of viewers
is not a noble response to the legitimate concerns raised about this
program."
True to this
right-wing tradition, the previously mentioned Sinclair Broadcasting Group
refused to let its ABC affiliates air a "NIGHTLINE" news segment where the
names of Americans killed in Iraq were read, claiming the segment was
making "a political statement." Also some theater chains, primarily in
the Midwest, refused to air Michael Moore's documentary FAHRENHEIT 9/11,
allegedly for the same reason.
Several radio
stations owned by Clear Channel, however, had no hesitation about
sponsoring pro-war rallies, and neither the GOP nor Michael Powell,
Republican head of the Federal Communications Commission (FCC) and son of
Bush lapdog Colin Powell, found anything ignoble, illegitimate, illegal or
hypocritical about Sinclair Broadcasting’s original plan to televise the
anti-Kerry documentary.
Although Sinclair
Broadcasting endeavored to camouflage as "news" this propaganda piece
attacking Kerry’s military record in Vietnam and/or his anti-war efforts
at home, many commentators have pointed out that Sinclair is, in
actuality, cynically attempting to enhance its own profits at the expense
of the public interest. Powell’s FCC, under the pretext of creating
"greater diversity," has consistently sought to generate more profits for
right-wing, pro-Bush media outlets by permitting even greater
concentration of media ownership. If John Kerry is elected president,
Powell will no longer have his coveted, nepotism-obtained position, and
the push for more concentrated media ownership will have ended.
In response to
Powell’s disingenuous efforts and Sinclair’s profit-motivated impetus, FCC
Commissioner Michael J. Copps proclaimed: "This is an abuse of the public
trust. And it is proof positive of media consolidation run amok when one
owner can use the public airwaves to blanket the country with its
political ideology--whether liberal or conservative. . . . This is the
same corporation that refused to air Nightline’s reading of our war dead
in Iraq. . . . Sinclair and the FCC, are taking us down a dangerous
road."
Naturally what
Sinclair, Powell, the GOP, the FCC and their right-wing media sycophants
hope the public will overlook is the fact that neither George W. Bush nor
Dick Cheney even served in Vietnam. Bush avoided the war by using his
family's influence to get into the National Guard, and Cheney obtained
five deferments.
Yet, while many
may have disagreed (and still disagree) with Kerry's words and actions, he
at least spoke with the courage of his convictions. Contrast this with
Bush and Cheney, whose only excuse for avoiding the war was that he had
"other priorities."
It is one thing to
be courageous enough to speak out with the knowledge that one day this
speech could be used against you. It is quite another to be too cowardly
to speak at all. Kerry’s statements against the war in Vietnam were made
with the belief that no more young people should die. Bush and Cheney, as
implied by their silence, simply did not care how many died in Vietnam as
long as they were not among them.
Just as things
have not changed much since the McCarthy era, things also have not changed
much since the Vietnam era. The corporate-controlled media's coverage
leading up to and during the early days of the Iraqi war was not motivated
by any altruistic devotion to the public trust. It was motivated by the
selfish lust for the ratings and profits that war engenders, with its
"embedded reporters," "twenty-four hour coverage," and plethora of
military "experts" droning on about military
strategy.
The profit-driven
impulses of the corporate-controlled media invariably lead to the third
problem: "Bandwagon" speech, where opportunistic individuals speak and
act less from the sincerity of their convictions than from the
career-enhancing prospects of exploiting popular sentiments or ideas.
For example, while
Cumulus and Clear Channel were censoring the songs of the Dixie Chicks,
Country singer Toby Keith was getting rich(er) singing about kicking Iraqi
"a**." Yet these media outlets seemed blissfully unconcerned about the
fact that Keith had (and has) made absolutely no effort to personally
participate in the war he so vocally supports.
The same holds
true for Bill O’Reilly of the Fox Propaganda Network. When Michael Moore
asked O’Reilly whether he would be willing to sacrifice his children in
the Iraqi war, O’Reilly repeatedly remarked, "I’d sacrifice myself." Yet
while people like Jon Leiberman are fired for their honesty, O’Reilly
remains safely ensconced in the Fox studios, and the only war he is
currently fighting is a sexual harassment lawsuit recently filed against
him.
As long as people
keep enriching and politically empowering hypocrites like Toby Keith, Bill
O’Reilly, George W. Bush, Dick Cheney and others of their ilk, there will
continue to be a surfeit of celebrities, journalists and politicians
willing to shed everyone’s blood, except their own.
Bandwagon speech
has been primarily responsible for the "dumbing down of America," as the
focus of the corporate-controlled media has shifted from substance to
superficiality. Many media conglomerates also own movie studios, and thus
use their television stations, newspapers and magazines to promote
celebrity "culture." As a result, America has become a society where
people are cognizant of minor trivialities regarding the lives of
celebrities, yet are unaware of laws, like the Patriot Act, that decimate
their Constitutional rights. Materialistic vamps like Paris Hilton and
Britney Spears inundate the airwaves, yet many Americans cannot recite the
name of a single person killed in Iraq.
Some may claim it
is hypocritical to write an article supporting the Bill of Rights while
complaining about the abuses of the corporate-controlled media or
applauding the protests that altered Sinclair’s plan to air the anti-Kerry
documentary. These media, after all, will claim they are only providing
what the public wants to see, read and hear. But a child may want to eat
ice cream and cake everyday for breakfast, lunch and dinner. For good
health, however, a child needs to eat a balanced diet.
Corporate-controlled media also need to, without regard for ratings or
profits, feed the people the
information they need.
These media
further claim they are also entitled to the right to "freedom of speech."
But American courts have held that communications driven by the quest for
profits and/or other economic considerations—also known as "commercial
speech"--does not enjoy the same level of protection under the Bill of
Rights as other forms of speech. Yet this is (as evidenced by the charade
attempted by Sinclair Broadcasting) the speech the corporate-controlled
media are consistently disseminating. Unless the courts, the legislators
and the public acknowledge this reality and rebel against it, the
corporate-controlled media will never again serve the public interest.
With the increased
concentration of media ownership, Americans and perhaps the most ill
informed people on earth, and, as the rush to invade Iraq illustrates,
much more susceptible to government or media lies. Although there are
alternative media sources, Americans are often too harried, too tired, or
too apathetic to pursue them unless they are available at the touch of a
remote control or delivered to one’s mailbox or doorstep.
James Madison said
two centuries ago, "We are free today substantially, but the day will come
when our Republic will be an impossibility. It will be an impossibility
because wealth will be concentrated in the hands of a few. A Republic
cannot stand upon bayonets, and when the day comes, when the wealth of the
nation will be in the hands of a few, then we must rely upon the wisdom of
the best elements in the country to readjust the laws of the nation to the
changed conditions."
Perhaps that day
has arrived.
David R.
Hoffman, Legal Editor of PRAVDA.Ru