Brass knuckles and the First Amendment: the Bill Maher problem

Alabama Congressman Spencer Bachus vented his anger at comedian Bill Maher Monday over some comments Maher made on his HBO show on May 13. Maher said the Army had missed its recruiting goal for April and suggested that the quality of new recruits was something less than excellent. To be precise, this is what he said: "We've done picked all the low-lying Lynndie England fruit, and now we need warm bodies."

Rep. Bachus said the remarks bordered on treason and undermined the national security of the United States. Then the congressman called Time Warner, parent company of HBO, and demanded that Bill Maher be fired.

Certainly U.S. troops, even new recruits, deserve more respect than to be sneered at as "warm bodies." But before you take sides in this fight, you really ought to see it for what it is.

If you've ever spent any time on the phone with a technical support representative, you may have heard the term "workaround." That's the name for a solution to a problem that is used when the direct approach won't fix it.

Rep. Spencer Bachus is using a First Amendment workaround. He is attempting to restrict speech through intimidation because the Constitution doesn't allow the Congress to restrict speech by law.

It is a brass-knuckled attempt to frighten all on-air talent into saying only sunny things about the war in Iraq. Treason charges against a performer may be far-fetched but job loss is not.

You may not know that Rep. Bachus serves on the House Judiciary Committee, or that the House Judiciary Committee has jurisdiction over matters of intellectual property law and also antitrust, or how much money Time Warner could make or lose depending on the wording of an obscure clause in a pending bill. But you can bet Time Warner does.

That's why it's a flat-out abuse of power for Rep. Bachus to pick up the phone and tell Time Warner that he wants Bill Maher off the air.

We have seen this before. In March, 2004, Sen. Sam Brownback of Kansas, angry over the content of a Howard Stern broadcast, sent a letter to the president of Viacom strongly implying that the company's radio stations could lose their broadcast licenses if they didn't take stronger 'voluntary' action to meet the government's decency standards.

In April, 2004, Sen. John McCain of Arizona sent a letter to the president of Sinclair Broadcasting accusing the company of shirking its "responsibility" by pre-empting a Nightline broadcast about war casualties. It is "a gross disservice to the public," McCain wrote.

In August, 2004, House members Jan Schakowsky of Illinois, John Conyers of Michigan and Pete Stark of California sent a letter to Rupert Murdoch, chairman of the parent company of Fox News Channel, warning that "the responsibility of the media is to report the news in an unbiased, impartial, and objective manner" and suggesting that Fox News had a "deliberate bias" toward the Bush administration and against Democrats.

You might agree or disagree with any of these lawmakers, but that's beside the point. What we are seeing here is an effort to use the federal government's power to influence the content of speech. The First Amendment prohibits the Congress from doing exactly that. So it's not a small thing when lawmakers attempt to intimidate broadcasters into changing their content solely to please officials of the federal government.

It's an abuse of power, a threat to freedom and a violation of the U.S. Constitution.


Copyright 2005

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