Guest Post: Rebutting Carter

May 6, 2011
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[Friend and reader "The Hypo" took issue with Rep. Davy Carter's statements in yesterday's joint article.  He wrote the following guest post in response.  Enjoy.]

As noted here and elsewhere, the House recently adopted a policy banning the use of footage from the House video feed for “any political, partisan, campaign or commercial purpose.” The policy also explained that “‘Commercial purpose’ in the context of this policy document shall mean a purpose that is intended to result in a profit or other tangible benefit.” The first joint article pointed out the serious issues — constitutional and otherwise — raised by a government attempt to limit political discourse.

Apparently Rep. Davy Carter (R-48, Cabot) disagreed that the nature of this policy was blatantly unconstitutional, and he, for some reason, chose to defend the policy. Rep. Carter’s view (at least his stated view) is that this policy does not violate the First Amendment because, “speaking in only terms of the First Amendment, I think fundamentally there is a difference between the government choosing to not supply its property for commercial uses than the government first supplying the property and then restricting its use.” Rep. Carter hedged his position slightly, however, explaining, “I do recognize that the question becomes less clear when dealing with political speech.” He went on to note that U.S. Supreme Court has held in several contexts “that a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.”

Paging Man, party of 1…paging Mr. Straw Man, party of 1.

Rep. Carter is making an argument here that no relevance whatsoever to the question at hand: once the House has decided to release footage of floor activity, can it tell the public what it can do with that footage?

Before you begin to twirl that around in your head, think about the audacity of Rep. Carter’s statement: he wants you to accept that the debates and deliberations of state representatives on the House floor belong to him and his colleagues, not you, the people who sent them there, and despite the fact that tax money is what paid for the video system in the first place. This isn’t their work papers or drafts of documents we’re talking about here — these are speeches given and debates had by our elected officials. Taking it to its logical extreme, according to Rep. Carter, the State of the Union belongs to President Obama and Congress and not to us.

“We the people” indeed….

But, giving Rep. Carter the benefit of the doubt, let’s assume that what he’s saying is that the actual video footage, rather than the speeches and debates, is the House’s property. Even then, his argument makes no sense. This is not an issue of whether the government is choosing to hand over its property to the public in the first place; the legislature has already decided to do that by not explicitly exempting this information from the FOIA statute. To use Rep. Carter’s own words, the government has already chosen “to…supply its property” and is now seeking to “restrict[] its use.”

So, for First Amendment purposes, the policy is very much a restriction on speech — core political speech — and, as a result, is subject to strict scrutiny, which, as noted in the previous story, it fails.

Of course, maybe what Rep. Carter is trying to do is minimize this as merely an attempt to prevent people from profiting (i.e., commercially using) these video feeds. To be sure, truly commercial speech does not get the same heightened protection that core political speech does. But there are two problems with this position as well. First of all, “commercial speech,” as is relevant in the First Amendment context, is speech that “does no more than propose a commercial transaction,” Virginia State Bd. of Pharm. v. Virginia Citizens Consumer Council, Inc., 425 US 748, 761 (1976), or is “related solely to the economic interests of the speaker and its audience,” Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 560 (1980). In other words, “commercial speech” is making an offer on a car or advertising toothpaste for sale.

Now, of course, in those cases, we want to make sure that I can’t sell you toothpaste by falsely telling you it’ll cure baldness; we protect against false advertising.  On the other hand, even if I sell you a DVD of Rep. Carter’s greatest hits from the House floor — say, for example, where he tacitly admitted that he was voting for Rep. Ed Garner’s unconsitutional capital-gains cut because Rep. Garner had “wore [him] out” talking about it — the contents of the DVD would not be proposing a commercial transaction, nor would it relate only to our shared economic interests. In other words, it ain’t commercial speech.

But, heck, let’s take it further. Even accepting that we could characterize my Carter Gone Wild DVD as commercial speech, that still doesn’t make a difference, because commercial speech does get some constitutional protection, and that protection is more than enough in this case to strike down this policy.

In Central Hudson, the Supreme Court articulated a four-part test for determining when commercial speech is protected:

The first step is that the speech must be about lawful activity, and it must not be misleading. Here, it’s obviously lawful to talk, blog, make T-shirts, produce TV shows, and spit hot fire about political speeches and debates. As for misleading, what Rep. Carter says he wants to ban is basically what Fox News does, right? It takes footage of politicians, puts it on the air in a packaged chunk, sells the time in between those chunks to advertisers, and turns quite a profit. At times, it’s been suggested that Fox News may improperly excerpt politicians’ speeches to create an intended, misleading, effect. Surely Rep. Carter doesn’t contend that Fox News should be subject to restrictions because it takes editorial license to make a point? So, strike one.

Second, we have to determine whether there’s a substantial government interest in regulating the speech. So far, no one has really stepped forward with a good one, but the closest thing we’ve heard is that the policy is intended to prevent taking legislators’ comments “out of context.” So, according to the policy’s proponents, its intended effect is to make sure that someone cannot use a legislator’s words — delivered in a public forum — in a context that the legislator disagrees with. That’s basically censorship, and I am pretty sure we tried to do away with that a long time ago.

And again, couldn’t that same rationale be used against Fox News? Whether Rep. Carter agrees or not, I bet President Obama thinks that Fox News takes some of his statements out of context. Would that be sufficient ground for the government to try to shut down Fox News? Of course not. Putting spin on political statements is at the core of our political debate. It would be nice if, in doing that. people respected the facts — ahem, “death panels” anyone? — but we have to count on the speakers to feel some moral compulsion to do that. We can’t preemptively use it as a reason to cut off the spigot altogether. If we allowed that, then political discourse and debate would all but dry up. So, strike two.

For our third prong under Central Hudson, we have to determine whether the regulation “directly advances” the government’s interest. Since the government’s interest here is essentially censorship, I think we can concede that a total ban on using the video feeds in particular ways is an effective means to advance censorship. Score one for the censors!

Finally, however, the regulation has to be no more extensive than is absolutely necessary to advance the interest. Here, we can really see how ludicrous this policy is. Its proponents say they want to prevent legislators’ statements from being taken out of context. So then, for example, why ban a blog from selling t-shirts with nothing but the statement on it? There is no context in that case. In other words, why doesn’t the policy just say, “no one can use the House feed in a manner that takes a legislator’s words out of context?” That would accomplish the stated goal, right? But the policy does not stop there, and instead bans every commercial use. So, strike three.

Of course, if they did limit the policy in that way, think about what that would mean. At any point that you used video footage in a way that the House or a legislator thought took that legislator’s speech “out of context,” you would have violated the policy. Maybe it’s just me, but that sounds a little similar to this:

That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

That is Section 2 of the Alien & Sedition Act, later described by the Supreme Court as “one of our sorrier chapters.” It was an act used by the Federalist administration around the inception of our republic to quelch political dissension. Although the Act never reached the Supreme Court, it was declared unconstitutional by the House Judiciary Committee in 1832, and I don’t think any serious scholar — a demographic that does not include Rep. Carter  — would claim that the Alien & Sedition Act is constitutional. I’m sure none of us are in a hurry to resurrect a mini-version of those law under the guise of an Arkansas House video policy.

So, in reality, what is the good representative from Cabot thinking? Why are he and the other proponents of the policy so gung-ho in restraining free speech? Maybe, just maybe, it’s because they don’t like when people expose stupid and outrageous things that these Representatives have said. Take Rep. Carter, for example, and the headache it caused him when a Cabot newspaper reported on his sarcastic and highly partisan comments made to a Republican group in Cabot about certain legislative actions in the 2009 session. Rep. Carter spent days arguing via letters to the editor and open letters to his constituents that he had been “taken out of context.” (That seems to be the fall-back excuse, actually, when a legislator or a would-be legislator has said something inane and is trying to minimize it.)

The solution, of course, is not to stop people from seeing the footage: “Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution.” Instead, Rep. Carter and his brethren could just resist the urge to act like fools and maybe simply engage in non-hyperbolic, rational, reasoned, and productive political discourse — the kind that actually tries to solve problems rather than just win elections.

Oh well, give me a kiss to build a dream on….

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