Francis J. Menton, Jr. *
It's been another year of tireless struggle by the Government to
suppress the free speech rights of the People. The Clinton Administration
and its bureaucratic minions have concluded that the First Amendment
does not poll very well just now. And unfortunately, the Congress
has been almost equally willing to trade freedom of speech for even
the slightest political advantage. The courts, at least, have mostly
held the line, striking down severalbut far from allof the Government's
most outrageous gambits.
The author took nominations for the "top ten" acts of
Federal Government speech suppression within the past year. From
a long list of nominations that were received, below is a list of
the ten most egregious efforts by the federal government to suppress
10. COPA. The "Child Online Protection Act" (47 U.S.C.
§ 231) never was a serious effort at anything other than political
grandstanding. It was passed after the Communications Decency Act
of 1996 was unceremoniously wiped from the books by the Supreme
Court. COPA's central provision, making it unlawful to use the World
Wide Web to disseminate any "material that is harmful to minors,"
gave federal prosecutors carte blanche to go after whomever they
didn't like. On February 1, 1999, just two months and two days after
COPA was enacted, Judge Lowell Reed of the Eastern District of Pennsylvania
preliminarily enjoined enforcement of it in ACLU v. Reno, 31 F.
Supp.2d 473. Results of a full trial are awaited.
9. Casino Advertising. Since 1934, Congress has purported to ban
radio or television broadcasting respecting any lottery or game
of chance. 18 U.S.C. §1304. Over the years deft lobbying earned
state-run lotteries and Indian casinos exemptions while the ban
continued to be enforced against for-profit casinos. On June 14,
1999, the Supreme Court's expanding commercial speech doctrine came
to the rescue. In Greater New Orleans Broadcasting Ass'n v. United
States, No. 98-387, the Court unanimously held that for-profit casinos
may advertise, at least in states where the advertised activity
8. Bank "know your customer" rules. The NYSE has long
enforced a so-called "know your customer" rule designed
to discourage aggressive brokerage firms from selling risky investments
to the old and weak. In an Orwellian twist on this concept, the
Federal Reserve on December 7, 1998 published for comment so-called
"know your customer" rules for banks with a very different
purpose: to force banks to monitor their customers' activities and
report everything unusual or suspicious to the Government. The proposed
rules would have required a bank to determine each customer's "source
of funds for transactions involving the bank," to determine
the customer's "normal and expected transactions," and
to "monitor" and "identify transactions that are
inconsistent with normal and expected transactions." After
a storm of protest, the Fed withdrew the proposed regulations on
March 23, 1999.
7. HUD harassment of its critics. The Department of Housing and
Urban Development (HUD) is a bureaucracy so sure of the holiness
of its mission as to know that its opponents must be silenced. For
years, HUD has notoriously conducted "civil rights" investigations
against anyone who dares to speak out against its disastrous public
housing schemes. One such investigation in Berkeley, California
targeted the "Berkeley three"Joseph Derringer, Alexandra
White and Richard Grahamwho had the gumption to fight back. The
Berkeley three had spoken in opposition to a HUD-backed project
and HUD retaliated with an investigation and massive subpoenas.
Derringer, White and Graham sued, and in January 1999, Judge Marilyn
Hall Patel of the Northern District of California ruled that HUD's
investigation would have been recognized by "any reasonable
person" as illegal.
Not so fortunate are the targets of other such HUD investigations
across the country. And unfortunately, the frequency of such lawless
inquisitions appears likely to rise in view of the Clinton Administration's
boast of a recent increase in "civil rights" enforcement
budgets at HUD and other agencies.
6. FDA suppression of Stevia. Proud of its reputation as the most
Stalinist of Federal agencies, the Food and Drug Administration
ever strives to suppress any unapproved speech impinging on its
jurisdiction. Oscar Rodes made the mistake of trying to sell a cookbook
describing uses of a natural, non-caloric sweetener derived from
the South American stevia plant. On May 19, 1998, Rodes received
a fax from the FDA stating: "A current inventory must be taken
by an investigator of this office who will also be available to
witness destruction of the cookbooks, literature and other publications."
That afternoon, the FDA thought police arrived at Rodes' office
to burn the books, claiming authority to do so as part of its jurisdiction
to regulate "labels" of "dietary supplements."
(More likely, the FDA's real motivation was that one of Rodes' books,
The Stevia Story, contained political portions critical of the FDA).
A last-minute petition by First Amendment attorney Jonathan Gerard
caused the FDA to back down. After a month of reconsideration, on
June 28, 1998 the agency withdrew its objections and allowed Rodes
to sell both his books and his sweetener.
5. The FEC's efforts to suppress issue advocacy. The Supreme Court
has explicitly held that only "express advocacy"speech
advocating in express terms the election or defeat of a candidate
for political officeis subject to regulation by the FEC under the
Federal Election Campaign Act (FECA). Literally, every year the
courts need to slap down the FEC for trying to suppress speech that
is not "express advocacy." See e.g., Right to Life of
Duchess Cty. v. FEC, 6 F. Supp.2d 248 (S.D.N.Y. 1998) ( "The
Court finds that [the FEC's] definition of `express advocacy' is
not authorized by FECA . . . as the statute has been interpreted
by the Supreme Court. . . . [I]ssue discussions . . . are plainly
protected from regulation by the First Amendment."); FEC v.
Christian Action Network, Inc., 110 F.3d 1049 (4th Cir. 1997) ("the
FEC's effort to suppress issue discussions goes against the overwhelming
weight (and in the case of Supreme Court decisions, dispositive)
authority."); Maine Right to Life Committee v. FEC, 98 F.3d
1 (1st Cir. 1996) ("The Supreme Court seems to have been quite
serious in limiting FEC enforcement to express advocacy.").
In this year's case against the Christian Coalition, the FEC once
again seeks to penalize distribution of issue-oriented voter guides
. The case was argued before the District of Columbia District Court
on February 10, 1999. A decision is awaited.
4. FEC v. Steve Forbes. The previous item may seem incredible enough,
but the FEC scores even higher in the list for another effort to
suppress core political speech. In August 1998, the FEC sued Steve
Forbes, claiming that editorials he wrote that appeared in Forbes
magazine during the 1996 campaign constituted illegal campaign contributions.
Unlike many candidates, Forbes had the resources to fight the FEC
(and also got some favorable publicity for doing so). On February
18, 1999, the FEC backed down and unilaterally dismissed its case
3. Workplace harassment law. The stealth statutes that consistently
trump free speech rights in court are workplace harassment laws.
Literally hundreds of cases around the country proceed to court
seeking damages for the wrong of unwelcome speech. For those who
mistakenly think that harassment law is restricted to sexual innuendo
and racial slurs, a review of the case law proves otherwise. Examples
of actionable harassment have included: inserting religious-themed
articles in company newsletters, the daily broadcast of prayers
over the public address system," and "disparag[ing] the
religion or beliefs of others" (the latter two from EEOC decisions).
An article by two law professors (Dean J. Schauer and Melissa M.
Erlemaier) writing in the Employee Relations Law Journal gives "repeated,
unwanted `preaching' episodes" by a fundamentalist Christian
employee as a "bright-line example" of actionable harassment.
The proponents of such theories do not recognize how far they have
strayed from basic principles of free speech.
2. Shays-Meehan / McCain-Feingold Campaign Finance Reform. The
media's favorite proposed legislation has returned to Congress fueled
by the never-ending appetite of some Congressmen for media attention
and the New York Times' regular editorials excoriating the Republican
leadership from failing to bring this blatantly unconstitutional
legislation to a vote. There's only one problem: these bills seek
to gag citizens, individually and collectively, who allegedly "corrupt"
our democratic processes by engaging in constitutionally protected
core political speech and association. If enacted, the vast majority
of the restrictions in these bills would probably not receive a
single supportive vote in the Supreme Court. But until the inevitable
invalidation of these modern-day Alien and Sedition Acts, the FEC
would have carte blanche to harass citizens engaged in constitutionally
protected political speech and association and undermine the legitimacy
of an election cycle.
1. FDA suppression of information about drugs. No agency can top
the FDA when it comes to imposing bureaucratic control over free
speech, even at the expense of human life. The FDA believes it has
an absolute veto power over all speech concerning anything consumed
by human beings. In a 1996 guidance notice the agency purported
to instruct drug manufacturers that they could not circulate published,
peer-reviewed journal articles to doctors describing new uses for
drugs, unless the "principal subject of the article was uses
[of the drug] approved by the FDA." On February 16, 1999, after
years of litigation, Judge Royce Lamberth of the U.S. District Court
of the District of Columbia enjoined this particular rule as contrary
to the First Amendment, and ordered that the FDA could not prevent
manufacturers from circulating articles just because they described
new uses of a drug that the FDA had not yet approved.
But Judge Lamberth's decision is just one small victory against
the FDA's massive efforts at speech suppression. Even as a few formerly
suppressed articles begin circulating, the FDA wages an aggressive,
multi-front campaign to regulate and squash prescription drug advertising,
to the point of actually ordering one manufacturer to replace a
woman's voice with a man's in an ad for an anti-impotence injection.
The agency may lose in court in the end, but the FDA is unlikely
to learn from yet another defeat in court and does not appear willing
to curtail what it views as the righteous fight to suppress free
speech. Do the bureaucrats at the FDA have any idea what the United
States is all about?
* Mr. Menton is a partner at the firm of Wilkie, Farr & Gallagher
in New York.