Fair-weather friend of free speech

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By ROBYN E. BLUMNER

© St. Petersburg Times, published October 31, 1999

An event as rare as a leading Republican senator threatening to filibuster a bill to death because it infringes on Americans' free speech rights should be savored, celebrated, cheered, not picked apart by an ingrate.

But the vision of Sen. Mitch McConnell, R-Ky, as standard-bearer for the First Amendment in the campaign finance reform debate has me asking the question: Really, what kind of friend is he to free speech?

Not the best.

Now don't get me wrong, I appreciate a big Republican muckety-muck like McConnell acknowledging the existence of the Bill of Rights. In fact, his speech opposing the McCain-Feingold bill, which would have banned political parties from taking unlimited donations, was right on the money, so to speak. McConnell, who raised $37.6-million in soft money in 21/2 years through the National Republican Senatorial Committee, told his colleagues: "Make no mistake, the essence of this debate is indeed freedom -- fundamental First Amendment freedom of speech and association. . . . Fortunately, enough senators on this side of the aisle have had the courage to forestall this assault on freedom for the past decade."

McConnell's underlying point, that the ability to give money to a political cause or candidate is an exercise of free speech, is sound. Limits on the amount of support individuals can give candidates do infringe on constitutional freedoms. But where McConnell's rhetoric starts to enter the realm of the surreal is when he suggests his motives and those of his fellow Republicans are pure.

Purely self-serving is more like it.

If you look at some of the most important free speech votes in the Senate in recent years, Republican concern for the First Amendment in the campaign finance debate is exposed as a marriage of convenience.

On the issue of flag burning -- not exactly a national pandemic -- Republicans, with a handful of Democrats thrown in, have gleefully and repeatedly sought to pass the Flag Desecration Amendment so Congress could make flag burning a crime. To his credit, McConnell was one of only four Republicans to oppose the amendment in its last Senate vote in 1995. But it took a strong Democratic showing of senators to rob the amendment of the two-thirds majority needed for passage.

To be fair, McConnell's opposition to the flag amendment did take some political courage and showed a deeper understanding of free speech principles than virtually all his Republican colleagues. Unfortunately, that understanding has its limits.

For years, McConnell was the primary sponsor of a bill that would have given victims of sex crimes the opportunity to sue pornography publishers. The Pornography Victims Compensation Act would have codified the militant feminist view that sexually oriented material causes sex crimes. A viewpoint that is not only factually wrong but highly destructive to free speech.

It was Democrats like Sen. Joseph Biden of Delaware, not Republicans, who successfully beat back McConnell's bill. Robert Peck, former legislative counsel for the American Civil Liberties Union, who worked closely with McConnell on First Amendment issues, believes McConnell eventually saw the free speech problems with the measure and came to realize the bill was "the dumbest thing (he) had ever done." Yet, when McConnell had an opportunity to show his censorious ways were a thing of the past, he proved otherwise.

In 1995, at the same time he was wrapping himself in the First Amendment to defeat campaign finance reform, McConnell was voting to support the Communications Decency Act.

The CDA, which became law as part of the massive 1996 telecommunications overhaul, would have stripped the universally accessible sites on the Internet of any content deemed unsuitable for a 5-year-old. The law's disastrous impact on the free flow of information led to the Supreme Court striking it down in 1997. But Congress, the Republicans and McConnell were not defeated. In spite of the court's injunction, the next year Congress passed the Child Online Protection Act, a CDA redux. McConnell joined a long list of fellow senators in supporting the legislation. He didn't make a peep about its effect on free speech.

And this year, McConnell was the primary sponsor of an amendment to the hulking Juvenile Crime bill that would prevent land and equipment under the purview of certain federal agencies from being used in the creation of a movie or television show that "endorses wanton and gratuitous violence." In his speech on the Senate floor, McConnell railed against Hollywood for exposing children to "incessant and endless hours" of violence. He blamed such movies as Basketball Diaries and the Matrix for contributing to the rash of school shootings, saying that the federal government shouldn't "co-star with Hollywood" in movies that glorify wanton violence. As with his pornography victims bill, McConnell has a penchant for blaming writers, rather than criminals themselves, for acts of violence.

On the other side of the aisle, Democrat Patrick Leahy of Vermont, a loyal free speech defender, opposed the amendment. Leahy ticked off a list of violent movies made using government property, including Fargo. And he raised the disturbing specter of an Interior Department functionary who on one day would dispense fishing permits and on another day decide which movies can be filmed on federal land. Even so, McConnell's anti-free speech amendment prevailed on a Republican-heavy vote of 66 to 44.

As to these vicissitudes, Paul McMasters, First Amendment ombudsman at the Freedom Forum in Arlington, Va., says that "friends of the First Amendment in Congress are inconsistent and inconstant." Fair-weather is more to the point. A condition that afflicts members of both parties, but Republicans more so. It's no accident that free speech is worth protecting when the issue is holding on to soft money fundraising, but when Congress is poised to put the Internet in a legal cage, those waiving around the First Amendment quickly put their arms down.

McConnell's made a swoosh.

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