Life, Liberty, and the ACLU

Nadine Strossen, president of the American Cibil Liberties Union, on rights in the age of P.C.

Cathy Young from the October 1994 issue

(Page 3 of 4)

Strossen: We have historically supported the Fairness Doctrine, although I've dissented from that position, as have other prominent people within the ACLU. Our basis for supporting it was so narrow and so historically contingent that I really have my doubts as to whether even the Fairness Doctrine itself would be reaffirmed if the ACLU National Board took another look at it. It was based on the notions of spectrum scarcity and of gov- ernment having conveyed a public trust, if you will, to the broadcasters. Both facts have changed substantially. We have never taken that position with respect to any other media and certainly have never taken it with respect to print media.

In Turner Broadcasting v. FCC we have some of these issues. I think it's going to be one of the most important First Amendment decisions from the Supreme Court for many years. It will force the court to address the extent to which the cable industry should be dealt with more like the print media, which is not subjected to governmentally imposed access requirements, or the extent to which cable will be treated more like TV and radio, with their Fairness Doctrine-type constraints.

To the extent that you can show in particular communities that the cable company is given a government monopoly and nobody can come in there and compete, it is absolutely fair to impose common carriage-type requirements on them. [A "common carrier," such as a phone company, must provide service to all legitimate customers and cannot make editorial decisions about their speech.] I don't think they can use a government-bestowed monopoly to engage in content-based or viewpoint-based distinctions as to who can use their medium any more than a telephone company can. We also recognize that cable companies do serve as publishers themselves. They create programming, so we argue for a modified common-carriage approach. That's the same approach we take to the whole National Information Infrastructure. You have to be sure that it is an open highway for all comers to exercise their voices, so long as it is the only game in town. It cannot serve as a bottleneck preventing diverse speech. But beyond that, you have to let it exercise its own First Amendment rights.

Our hope is that the NII will shape up in such a way that a lot of these questions will become moot. There is a technological capability to have universal two-way interactive networks of communications so that the old shibboleth--"We have freedom of the press for everybody who can afford a printing press"-- will no longer be true, because everybody will in some sense own a printing press. So our major emphasis in this area now is working in Congress for legislation in setting up this information superhighway. We want to be sure that the technological and economic decisions that are made at this point will create that kind of interactive universal network.

Reason: Hasn't the ACLU neglected property rights? Should there be a fundamental distinction between civil liberties, such as speech or religion, and property ownership?

Strossen: Well, there certainly isn't any distinction in my mind. And there certainly isn't any distinction in terms of ACLU policy. People have rights. Property doesn't have rights. Some of the rights people have are closely associated with property. The Due Process Clause says government cannot deprive people of life, liberty, or property without due process of law. We certainly have many cases involving that privilege.

The Supreme Court really hasn't done too much in this area, so the examples that I can think of go back a long way. They were cases in the 1960s that involved government jobs or government benefits in which the courts analyzed the benefit as property. We have never taken the position, despite repeated requests from certain elements within the organization, that you should have a fundamental right to "property," that the government should guarantee an income or guarantee a house. However, we have always taken the position that, if the government chooses to distribute certain benefits, it may not do so in a way that violates fundamental rights, including depriving you of the property that the government has chosen to give you, without certain procedural protections.

Reason: Does the ACLU support enforcement of the Takings Clause?

Strossen: I don't think that we would have any problem supporting a meaningful interpretation of the Takings Clause. I think it's very dangerous to read certain language out of the Constitution. If the Court can do it from one portion of the Constitution, it can do it for other portions. Therefore, I'm very philosophically supportive of the efforts to put real meaning back into the Takings Clause and to overturn the Slaughterhouse cases which, of course, completely read the Privileges and Immunities Clause out of the Constitution. [In an 1873 decision, the Court narrowly interpreted this clause of the 14th Amendment and allowed the states broad regulatory powers.]

Reason: The ACLU has come down in favor of hate-crime laws and enhanced-penalty statutes. Where do you draw the line so that people are not penalized for their views or ideas?

Strossen: The ACLU policy is rather subtle and calls for an evaluation of each particular law and each particular application of each law. We rejected the position taken by people I know and respect that all such laws will in effect constitute thought crimes. As an organization that has long supported anti-discrimination laws, we thought that laws could be framed and enforced in such a way that they would simply be penalizing intentional discrimination in choosing a crime victim, much the way anti-discrimination laws take something which is not even illegal in the first place--refusing to hire, refusing to rent to somebody--and make it against the law if you have a certain intent. Our reasoning was, if you can do that with something that's not independently illegal, can't you take something that's already a crime and make it a more severe crime?

The potential for abuse is very great. Our policy is that we will not oppose such laws if there is a very tight causal nexus to the evidence of intentional discriminatory selection of a victim and that it is proved beyond a reasonable doubt. The one case where we concluded that the standard was satisfied was the U.S. Supreme Court case Wisconsin v. Mitchell, which was decided in 1993.

The Wisconsin law was very narrowly drafted as these things go. Unlike other laws we have opposed, it did talk about intentional selection of the victim on the basis of discrimination. The particular evidence in the Wisconsin case involved a statement that the defendant made literally in the process of inciting a crime. I think that speech would have been independently punishable as intentional incitement.

What's distressing is that the Court's opinion, which was unanimous, didn't go into any of the potential dangers to free speech. It didn't emphasize the particularly tight nexus in that case between speech and the crime, or the narrow wording of the Wisconsin statute. I think it really opens the door to all kinds of abuses. I strongly suspect that we will be in a position of opposing most applications of most such laws.

Reason: The ACLU has opposed school vouchers on church-state grounds. How did you arrive at that position?