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Free Speech in the Age of Obama: Three Proposals for Year One

January 20, 2009

FEPP wrote this wish list in response to a request from the Free Expression Network (FEN) to all its member organizations, asking us to describe some of the policy changes relating to free speech that we hope for on Inauguration Day, 2009.

Although governments are by nature hostile to free speech that challenges their policies, the regime of George W. Bush attained new depths in its disdain for independent thought. What can we hope for in the new administration?

Restoring Integrity to Science. One of the great scandals of the Bush Administration was its twisting of science to partisan ends. As FEPP reported in 2004:

The ends are sometimes ideological - as in the suppression of information about condoms and sexual safety - and sometimes simply take the form of favors to business interests that would like to see less environmental, public health, or workplace safety regulation. But the pattern has become so pervasive that much of the scientific community is up in arms.” ("The Attack on Science"; see also the reports of the National Coalition Against Censorship’s Knowledge Project.)

Scientific research affects nearly all fields of public policy, and the federal government controls a large chunk of the research budget. Without accurate information, we can’t even begin to make intelligent decisions about health, employment, and the natural environment that sustains life on this planet.

Barack Obama made a good start by appointing to sub-cabinet positions two scientists who, in the words of the New York Times, are “committed to using rather than abusing science,” and are “a welcome departure from the many ideologues and lobbyists that Dick Cheney assembled to advise President Bush on environmental matters.” (“New Respect for Science,” NY Times, 12/22/08).

Ending the FCC’s Censorship of “Indecency.” Whether we can see or hear “indecent” expression on radio and television may seem like a trivial issue compared other free-speech depredations during the Bush era. But underlying the Administration’s actions in this area – the Federal Communication Commission’s punishment of TV networks for Janet Jackson’s “wardrobe malfunction” and for “fleeting expletives” in a variety of programs – is a profound question of whether an agency of the federal government should be censoring the content of any medium of expression.

Broadcasting has always enjoyed less First Amendment protection than other media, but as writers, filmmakers, and civil liberties groups argued to the Supreme Court in a case challenging the FCC’s new rule against even one “fleeting expletive” on the airwaves, the main justification for this different treatment – that broadcasting is “uniquely pervasive” and “uniquely accessible to children” – no longer exists. (See “Supreme Court Blushes at Those ‘S-words’ and "F-words.")

It is totally unacceptable for a government agency to decide what words Americans are allowed to hear and, in the process, to second-guess the artistic judgments of producers, directors, and writers. (One of the FCC’s recent decisions was to fine a PBS station for broadcasting a documentary on the blues by Martin Scorsese because the commissioners thought Scorsese could have substituted other language without undermining his artistic purpose. Scorsese surely appreciated this advice.)

The Supreme Court is unlikely to issue a ringing defense of creative freedom in the “fleeting expletives” case, but we don’t need the courts to put an end to the anomaly of allowing five FCC commissioners to censor constitutionally protected expression using their vague and unpredictable “indecency” test. Will Obama do it? As a constitutional law expert, he knows it makes sense.

Creating a Truth Commission. Whatever one may think about bringing the high Bush Administration officials who authorized torture at Guantanamo and elsewhere to justice through criminal prosecutions (see the debate on the NY Times editorial page, 1/11/09), we need public hearings to investigate and report on the full range of crimes that were committed. For democracy to function, public information as important as freedom from censorship; indeed, the right to receive information is the flip side of the right to convey it.

As Dahlia Litwick reports in one of the Times op-eds, Rep. John Conyers has already introduced legislation to investigate the “broad range” of Bush Administration crimes. Obama should move this project forward, and simultaneously end the overuse of government secrecy by his predecessor. (See, for example, Vice President Cheney’s successful efforts to keep secret the operations of his “Energy Policy Development” task force: “Supreme Court Limits Access to Information About Cheney's Energy Task Force.”)

There are many other free speech issues, of course, on which a change would be welcome – among them, the bizarre policy of creating “free speech zones” where dissenters will not be seen or heard (see the Fact Sheet on Political Speech); the misuse of “National Security Letters” to ferret out information about citizens’ reading habits (id.); the need for ’net neutrality so that a few large Internet service providers don’t get to discriminate in favor of speech they like and censor the rest (see Save the Internet); and a reversal of the FCC’s policy of approving ever-larger media conglomerates. Even as the Bush Administration fades into history, those who care about free speech will undoubtedly keep busy.


The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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