Top Ten Federal Government Efforts to Suppress Free Speech 1998-99

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 free speech.

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 is legal.

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 with prejudice.

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.


2001 The Federalist Society