Skip to comments.The Constitutional Right to Listen
Posted on 01/28/2009 10:26:14 AM PST by Delacon
McCain-Feingold and the Fairness Doctrine hurt more than speakers rights.
We usually think of freedom of speech as involving the right of speakers to speak, whether through public addresses, in writing, or over radio and television airwaves. But the courts have recognized an additional dimension to First Amendment free speech rights: the right to listen and watch. This right takes center stage in a current challenge to the McCain-Feingold campaign-finance law and could play a role in the debate about the Fairness Doctrine.
Every circuit appeals court has acknowledged the right to listen and watch. For example, in 2003s Rossignol v. Voorhaar, the Fourth Circuit held that the First Amendment protects the right to receive information and ideas. Similarly, in 1999s U.S. West, Inc. v. F.C.C., the Tenth Circuit held that the two components of effective speech are a speaker and an audience, and that a restriction on either of these components is a restriction on speech. In 2005s de la O v. Housing Authority of City of El Paso, the Fifth Circuit found that the right to receive information is just as protected as the right to convey it.
The U.S. Supreme Court has also recognized this right. In 1986s Pacific Gas and Elec. Co. v. Public Utilities Commn of California, the Court held that the constitutional guarantee of free speech protects significant societal interests wholly apart from the speakers interest in self-expression, including the publics interest in receiving information. And in 2000s U.S. v. Playboy Entertainment Group, Inc., the Court ruled that, under the First Amendments free-speech clause, the citizen is entitled to seek out or reject certain ideas or influences without government interference or control.
All this raises the question of whether McCain-Feingold, which restricts political speech by both campaign and non-campaign organizations, violates citizens right to hear pertinent messages. Thanks to a new case, Citizens United v. Federal Election Commission, the Supreme Court may answer that question.
In 2007, the non-profit group Citizens United financed from its own corporate treasury the production of a feature-length documentary film about Hillary Clinton. The movie focused on past Hillary scandals including the firing and subsequent criminal prosecution of the White House Travel Office staff, repeated campaign-finance-law violations, and the presidential pardonwhile Hillary was seeking the endorsement of Puerto Rican activists for her Senate campaignof a Puerto Rican terrorist convicted of murder.
The Federal Election Commission prohibited broadcast of the movie in 2008, when Hillary was running for president, because its financing did not comply with McCain-Feingold restrictions. Last week the American Civil Rights Union (of which I am general counsel) filed a brief with the Supreme Court supporting Citizens Uniteds argument that this broadcast prohibition violated the Constitutions free-speech guarantee. One of the briefs arguments was that the prohibition violated the rights of citizens who wanted to watch and listen to the movie.
This overlooked constitutional right is also central in the possibly pending battle over readoption of the Fairness Doctrine by the Obama administration. Besides the constitutional free-speech rights of broadcasters and talk-show hosts, the doctrine would violate the audiences constitutionally protected right to listen.
Those advancing the Fairness Doctrines revival are not interested in balance; they are interested in shutting down critics. Obama revealed his thinking about talk radio in his recent attack on Rush Limbaugh, in which he urged Republicans not to listen to the popular host. This indicates how much trouble Obama thinks talk radio is for his agenda, which may mean that his interest in using the Fairness Doctrine to shut it down will be high.
The coming years, then, are fraught with hope and peril for First Amendment rightsnot just the right to speak, but also the right to listen.
Peter Ferrara is general counsel of the American Civil Rights Union and director of entitlement and budget policy for the Institute for Policy Innovation.
Peter Ferrara is a senior fellow at the Free Enterprise Fund, director of entitlement and budget policy at the Institute for Policy Innovation, and general counsel for the American Civil Rights Union.
I’ve never heard this argument used before. Our right to listen. It seems so obvious now. What good is freedom of speech if there isn’t anyone free to listen?
Unfortunately the lib nutjobs will construe this to mean the person speaking has right to be heard and will force people to hear them, when in actuality it means the listener has the right to either listen, or not listen as they choose.
The Rush Limbaugh Show is also how I exercise my right to Freedom of Assocation with fellow Conservatives who are at work like me.
Ive never heard this argument used before. Our right to listen. It seems so obvious now. What good is freedom of speech if there isnt anyone free to listen?
Yes, it's obvious that your right to speak would be mooted by punishment of anyone who listened to you.
The framers of the Constitution initially opposed the Bill of Rights, not because they opposed the rights in any such bill, but because they feared that any bill of rights which could be devised would inevitably omit reference to some rights - and that the existence of a bill of rights would be used to denigrate rights not enumerated in that list. My understanding is that because of that it is established jurisprudence that the body of the Constitution is to be read as protecting everything in the Bill of Rights even without the first ten amendments. I believe that both "liberal" and "conservative" justices would tell you that.
If you read the Constitution that way, the words "the press" fade out, and words like "No title of nobility shall be granted by the United States" (Article 1 Section 9) come into focus. Because what the Associated Press and its membership has done is to lobby for a title of nobility - "the press" - which gives them privileges to be withheld from the people. "The freedom of . . . the press" is actually the right of the people to spend their own money to use technology to promote their own (political, religious, and other) opinions.
If you do not read "the press" as a ceiling on our rights, and if you read in Article 1 Section 8 that the federal government is explicitly authorized"to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,"you will find in the Constitution no warrant for the claim that the framers of the Constitution expected no advances in the arts of communication and that therefore the Constitution does not cover high speed presses, photography, telegraphy, telephony, sound recording, radio, mimeograph machines, movies, talking movies, television, photocopiers, hi-fi steros, computer/printer combinations, Compact Disks, HDTV, DVDs, satellite radio, the Internet and the worldwide web - or whatever comes next.
It is in my experience a great mistake to try to prove that journalism is not objective - for the simple reason that that is a political opinion. You would do just as well to expect to be able, in an hour's conversation, to convert a Democrat to a Republican. My point is not the mere fact that I can cite examples of tendentiousness in journalism until the cows come home, and my point is not simply that no one can prove that journalism is objective because lack of bias is an unprovable negative. My point is that I have a right to listen to Rush Limbaugh, provided only that he makes his program available to me on terms that I am able and willing to meet, without reference to what a politician or judge, or all of them, think of Rush Limbaugh's opinions. Just as surely as your garden variety "sheeple" has a right to listen to Katie Couric. A government which distinguishes between the two is not operating under the Constitution.
I pulled some of the above from this thread posting. The thread itself is a vanity of mine which is germane to your chosen topic. Some readers of which have been complimentary . . .
Here's a pingout for you . . .
hat is probably because the libs have been going for the front door when it comes to speech, i.e. trying to deny your right. However since they have hit quite a few roadblocks over the years (unfortunately not enough of them IMHO), they have tried to find an alternative, a more subtle route besides political correctness. In this case its stopping the message from getting out at all. No one can complain, stay informed, or protest if you don’t hear about it. Its scheming that is pure evil.
A comparable example is the 2nd amendment. Since libs have been having a hard time restricting peoples right to own guns(once again not hard enough IMHO) and laws that allow for self defense such as the castle doctrine, they have been trying to restrict or banning the purchase of ammo in the name of safety, needing identification on the bullets and casings which is so expensive no one will make it is the newest ploy, trying to have OSHA classify ammo as dangerous and thus really restrict how the stuff is handled and transported was another, etc.
If these anti-freedom freaks of nature cannot get something by the direct route or their movement has stalled and can go no further, they will try something more subtle and palatable to the publics’ taste in the hopes of deceiving them. Kind of like slowly raising the temp in a pot of water with a frog in it. By the time you realize youre for dinner its to late.
hat = That
Great post. Please add me to your ping list.
Thanks for the ping, CiC, your posts are always well-reasoned and logical.
BTTT! Thanks for the ping, thanks for your work. c_I_c for President and Limbaugh for VEEP...OR vice-versa.
As always - my gratitude for being included.
Always great to hear from you!