War and the Politics of Free Speech

A few days ago, the United States Senate handily (75-25) passed a “sense of the Senate” resolution condemning a political advertisement placed in the New York Times by the anti-war group MoveOn.org. Many conservatives, most prominently presidential candidate Rudy Giuliani, complained both about the substance of the ad and the process by which it came to be in the Times — the allegedly “discounted” price and the timing (the ad ran the day of General Petraeus’s congressional testimony). The ad referred to General Patraeus as “General Betray Us” and accused him of “cooking the books” for the White House to justify the much-debated surge in Iraq. After reviewing the General’s credentials, the Senate resolution calls on the Senate to “strongly condemn all personal attacks” against General Petraeus and other members of the armed services and to “specifically repudiate the unwarranted personal attack on General Petraeus by the liberal activist group MoveOn.org.” (A propsoal sponsored by Senator Barbara Boxer (D-California), which failed (51-46), more broadly called on the Senate “to strongly condemn all attacks on the honor, integrity and patriotism” of those in the armed services.)

As Sandy Levinson has observed, the ad was extraordinarily “dumb politics.” It allowed supporters of the war in Iraq to once again shift the debate from events on the ground in that country to partisan domestic politics in this one. As I noted in an earlier post, there are substantial dangers attending the cozy relationship between many prominent Democrats and anti-war advocacy groups like MoveOn.org. In the face of what was indeed a sharp attack on General Petraeus, Republicans once again rallied behind the “support the troops” mantra. President Bush himself took the unusual step of condemning the ad, suggesting that members of the Democratic Party were “more afraid of irritating [MoveOn.org] than they are of irriating the United States military.” Under the circumstances, many Democrats apparently felt they had no choice but to publicly denounce the ad and vote for the resolution.

It is a pity Senators of both parties did not reject and renounce this politicization of free speech. Although the Senate’s finger-wagging resolution carries no penalties (and thus cannot be challenged as a violation of the First Amendment), it is shamefully antithetical to the spirit and values of the First Amendment. In New York Times v. Sullivan, the Supreme Court emphasized our “profound national commitment to the principle that debate on public issues should be uninhibted, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” In times of war, when lives are literally at stake, one can reasonably expect less inhibition on the part of speakers. Of course, senators possess individual expressive rights. But it is inappropriate for the United States Senate to institutionally condemn expression regarding matters of public concern, or to single out a political advocacy group for special rebuke. In our marketplace of ideas, the people ought to decide for themselves whether the criticism of General Petraeus constituted an unwarranted “personal attack” or a warranted criticism. The Senate’s condemnation distorts the marketplace and threatens to chill others from presenting sharp attacks against favored subjects. Although it focuses on MoveOn.org and its advertisement, the Senate resolution seems to suggest that military leaders and members of the armed services are now beyond “sharp” and “caustic” criticism. Is the president, as Commander-in-Chief of the armed forces, entitled to the same protection from “personal attacks”? The business of the Senate is to debate and enact laws for the benefit of the country. Surely that distinguished body has more pressing business than the politicization of expression.

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24 Responses

  1. humblelawstudent says:

    What is wrong with “institutional condemnation”? All it does is contribute another viewpoint to the marketplace of ideas, albeit a powerfule one. As long as the condemnation does not use the color of law to condemn, what is wrong with it?

  2. Tim Zick says:

    There are three problems, although as I say no technical First Amendment violation has occurred. As a matter of bedrock First Amendment principle, we expect the government to maintain neutrality with regard to political expression. Institutional condemnation of this sort, as opposed to individual statements of displeasure or disgust, violates that principle. Second,and relatedly, as you note the Senate’s voice is a “powerful” one. Given its power, the Senate can distort the marketplace of ideas. Finally, this form of public condemnation may have the effect of chilling expression on matters of public concern. That will surely not be the case with respect to MoveOn.org, which seems quite pleased to have the attention of the Senate and the President. But speakers with different agendas may quite understandably wish to avoid irritating the Senate with their own sharp attacks — even if what they have to say is fully protected expression.

  3. humblelawstudent says:

    Why can’t the Senate as an institution have a position? And why can’t (or shouldn’t) the Senate express that position? If anything, it is only more speech.

    Almost any condemnation can be powerful if backed by a sufficient quantity or quality of people, groups, or institutions (governmental or not). And these condemnations can be stifling. I don’t think you would argue that such non-governmental condemnations violate the bedrock of First Amendment principle (setting aside that the First Amendment generally only applies to the government).

    So, why can’t the government (as an, if not the, most important institutional actor) express its opinion? It stifles only insofar as non-governmental condemnations would stifle. It provides a very powerful “market indicator” on the validity of the speech in question.

    The fact that the condemnation makes the speech in question look bad, is the fault of the speech, not the institution that expresses its disapproval. Surely the ability to express disapproval (regardless of who or what) is an important factor for people deciding the merit of the speech in question.

    It is (somewhat) like the DOW Jones or NASDAQ of political discourse.

  4. Tim Zick says:

    “…setting aside that the First Amendment generally applies only to the government.”

    There’s the rub — and it cannot be set aside. I certainly wouldn’t hold other groups or individuals, however powerful, to the same standard. The government may, of course, establish neutral standards regarding the general terms and conditions under which expression takes place. But it has no legitimate role in terms of providing or shaping “market indicators” regarding the “validity” of political or other expression.

  5. Tim – I think the government speech issue is a really interesting one. I think that the Senate can (both constitutionally and prudentially) take positions on disputed national issues (if they can’t, who can?) but I agree with you that the position they took here seems to be more intended to prevent national discussions rather than contributing to them. As such, it is a threat to First Amendment values of vigorous public debate. As you also note, the Senate’s actions are clearly constitutional under current doctrine, but this only goes to show that lots of government actions that are constitutional can still be really bad ideas.

    There’s also of course more than a passing factual similarity to NYT v. Sullivan, which also involved a full-page ad in the NYT criticizing government activity relating to the most important national issue of the day. Neil

  6. anon says:

    Wait, your theory would prevent the Senate from making resolutions criticizing the Ku Klux Klan for their views; from denouncing Nazism; and from even critiquing a president’s speech (since the president, as an individual, has expressive rights, but the Senate does not). That cannot be right.

  7. Tim Zick says:

    Neil —

    As you say, Congress undoubtedly may take positions on important matters of public concern. I haven’t done the research, but was wondering whether the Senate, the House, or the Congress has ever singled out a political advertisement and/or a political advocacy organization in this fashion. I can’t think of an example, at least in recent history. I suppose the President can be expected to defend his generals, although phrasing the matter as one of “irritating” the military by failing to denounce protected speech suggests a similar lack of appreciation for First Amendment values.

    You’re right, as well, about the similarity to NYT v. Sullivan. Sullivan undoubtedly felt himself aggrieved by the “personal attacks” in that advertisement.

  8. Tim Zick says:

    Anon —

    I think the Senate is entitled to denounce terrorism, or Naziism, as threats to public safety (although enacting laws to deal with such threats seems a much more effective way of expressing its viewpoint). What the Senate did here, primarily to place Democrats in an awkward political position, was to condemn a single speaker and make a claim that “personal attacks” on military leaders ought to be renounced. It effectively took a side in a current political debate of great public moment, in a manner designed, as Neil Richards points out, to discourage discussion by one side. Note, again, that I did not say this was unconstitutional; I said only that it was inconsistent with basic First Amendment values and principles. Do we really want the Senate to opine on the “appropriateness” of the many “personal attacks” in Ann Coulter’s newest book? On the appropriateness of the “Swift Boat Veterans'” attack ads targeting John Kerry? I don’t think that would facilitate political debate that is “robust, uninhibited, and wide open.” And as I said, I think the Senate has much more pressing business on its agenda.

  9. Jack Sprat says:


    I find your argument a bit odd because Congress cannot avoid distorting the marketplace of ideas even when it does not intend to express a viewpoint. Funding some scientific research, but not all, or setting criteria for copyright/patents that protect some ideas/expressions/inventions, but not others, distorts the marketplace of ideas and chills some certain speech. But that is in part what Congress exists to do. Furthermore, when Congress holds hearings as a part of the legislative process, it hears and thus legitimizes the opinions of some scholars and think-tanks, but not others. It passes symbolic laws that represent the hard-won policy objectives of certain special interest groups, but not others. Constitutional amendments with no hope of passing are proposed to signal to certain consituencies: that influences public debate. The Congress expresses its view so often that it seems odd to single out this public condemnation of one group. Especially because the consequence may be to increase MoveOn.org’s influence in the public debate and thus promote rather than chill speech by inspiring copycats.

  10. anon says:

    Professor, the colloary seems to be that, in your view, the Senate cannot (or, at least, should not) pass resolutions against non-violent racism and bigotry; or, for that matter, pretty much anything else that it cannot directly legislate against. That seems to be an extraordinarily constrained view of government speech.

  11. I think a more moderate form of what Tim is saying is that Congress should not speak when the effect of such speech is to deter speech by others. In effect, Congress should recognize its role as custodian of the marketplace of ideas and speech about self-governance and internalize the duty not just to speak its mind but also to care about the state of public discourse. These duties are analogous to those of prosecutors as lawyers, who owe the government duties of zealous advocacy but also owe the public a greater duty not to put innocent people in prison. Tim’s argument as I see it is that the Senate resolution, by deterrring speech critical of the war under the old “speech critical of the war is critical of our brave soldiers” move, is contrary to its special duties to the public.

  12. Tim Zick says:

    I was not making any broad statement — or at least was not intending to — about governmental expression in my post. I may have a narrower view of state speech rights than some of the commenters. Regardless, I do see a difference between what one might call “indirect” effects on the expressive marketplace (funding, IP laws, use of investigatory powers) and a resolution that intentionally and purposefully singles out one side (and a particular group by name) in a current political debate. Surely, Congress does express its view — although usually, I think, in a positive way — on all manner of public issues. My only point was that this negative, targeted condemnatory resolution seems unique — and in my view uniquely inappropriate and problematic.

  13. Jack Sprat says:

    [A] resolution that intentionally and purposefully singles out one side (and a particular group by name) in a current political debate …My only point was that this negative, targeted condemnatory resolution seems unique — and in my view uniquely inappropriate and problematic.

    What about (a) apologies for lynching;(b) condemnation of the Klu Klux Klan; or (c) valorizing Roe?

  14. Tim Zick says:

    (a) seems to express condemnation of particular (illegal) conduct, not expression.

    (b) is a closer case insofar as it does single out a particular group. We need some context here. I would assume the condemnation would relate to racism generally, or to the Klan’s history of violence, intimidation, and discrimination. Congress is entitled to condemn that history and the general ideology of racism. It has acted (i.e., expressed its view) through civil rights legislation, which is of course entirely appropriate. I don’t see this hypothetical condemnation as similar in manner or substance to the Senate singling out that or any other group’s viewpoint regarding, say, affirmative action and condemning it or suggesting it ought not to be expressed. Congress can condemn racism as contrary to principles of individual equality and race-based violence as unlawful. My narrow objection, again, is to more targeted efforts to silence or discourage debate on pressing political and social issues.

    (c)could either be a statement about respecting judicial precedent or (as I assume you mean it) a “sense of the Senate” that Roe is indeed “correct” in some normative sense. Assuming the latter, I think a statute protecting abortion rights would be a more appropriate vehicle than a political resolution condeming the “pro-life” viewpoint and “conservative” groups that hold such a view. Whether or not the Constitution permits it (and again, I think it does), I don’t think it appropriate for the Senate to issue a statement that specifically singles out an advertisement by, say, Focus on the Family and condemns the ad, its viewpoint, and the “conservative” advocacy group that conveyed it.

  15. Jack Sprat says:

    Whether or not the Constitution permits it (and again, I think it does), I don’t think it appropriate for the Senate to issue a statement that specifically singles out an advertisement by, say, Focus on the Family and condemns the ad, its viewpoint, and the “conservative” advocacy group that conveyed it.

    Hmm. I am no First Amendment scholar. But would it not follow that categorically banning issue ads within 60-days of an election is inappropriate, regardless of the particular group affected in a specific case? It seems that Focus on the Family and MoveOn.org are the paradigmatic kind of organizations who put forth these exact kind of ads.

  16. Tim Zick says:

    No. Among other relevant distinctions, to “categorically” ban such ads is the antithesis of singling out a particular viewpoint for condemnation.

  17. Jack Sprat says:

    Aha! So: categorically banning political speech does NOT violate the First Amendment.

  18. Tim Zick says:

    Passing laws regulating the timing of campaign speech is different from scolding political advocacy groups based on the content of their expression. Regulations like the one you posit are “categorical” (your term) in the sense that they regulate the circumstances of expression (in this case, timing) without regard to the speaker’s viewpoint. They are not outright “bans” on expression. And they do not take any side in a public debate.

  19. Jack Sprat says:


    I think you are cheating a bit. If the only kinds or paradigmatic kinds or predominant kinds of political advocacy groups buying ad time so close to elections are in fact the Focus on the Familys and MoveOn.orgs of the world and the rationale of the regulation is to prevent particularly effective negative issue-advertising, that regulation does touch upon content and scold the organizations buying the ad time. To recast that as “timing” ignores that the groups being censored are precisely those the government seeks to scold because incumbents in the government seek to immunize themselves from effective criticism that could result in the loss of an election. Such regulations certainly do take a side in the public debate: the side of incumbents against challengers. Given that your conception of First Amendment values is thus not status quo neutral, what justifies your “narrower view of state speech rights”(your term)? It appears you think it is constitutional for public officials to condemn MoveOn.org with a sense of the Senate resolution and constitutional to ban MoveOn.org from criticizing the government officials who voted for that resolution when they are up for re-election.

  20. Tim Zick says:

    It is not I who is cheating — it’s the Court, which has long treated such laws as content-neutral regulations. As I’ve said, I’m not making any claim that what the Senate did was unconstitutional.

  21. Jack Sprat says:

    I’m not making any claim that what the Senate did was unconstitutional.

    I know that. My point is that at the same time you are making the claim it is constitutional for the Senate to bar criticism of its inappropriate behavior. Hence: “It appears you think it is constitutional for public officials to condemn MoveOn.org with a sense of the Senate resolution and constitutional to ban MoveOn.org from criticizing the government officials who voted for that resolution when they are up for re-election.

  22. Jack Sprat says:

    That isn’t a narrow view of state speech rights. It’s a conception of speech rights that favors the government over individuals.

  23. Tim Zick says:

    Geof Stone has weighed in on this controversy and the recent flap at Columbia — http://uchicagolaw.typepad.com/faculty/2007/09/columbia-moveon.html

  24. Jack Sprat says:

    Geof Stone: Such expression, like MoveOn.org’s attack on General Petraeus, is not only protected by the First Amendment, but is essential to the functioning of a self-governing society. For the very same reasons that Columbia University should not declare particular ideas, perspectives, or positions “out of bounds,” so too the United States Senate should foster “uninhibited, robust, and wide-open” public debate and not attempt to intimidate citizens by irresponsible public declarations of official condemnation. Such a tactic smacks of the excesses of the McCarthy Era.

    Justice Louis Brandeis cautioned us exactly eighty years ago that “the freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth,” that “it is hazardous” in a self-governing society for the government “to discourage thought” and free expression, and that “the fitting remedy for evil counsels is good ones.” Individual senators would have been perfectly within their rights to condemn the MoveOn.org ad, just as Mr. Bollinger would have been perfectly within his rights as an individual citizen or faculty member to condemn Mr. Ahmadinejad’s policies. But neither President Bollinger nor the members of the Senate acted wisely or properly in conscripting the official voices of Columbia University and the United States Senate to declare a “politically correct” position for their university or their nation.

    I have to say, Tim, that I find your reasoning far more persuasive, because it hinges on your assessment of the condemnation’s uniqueness; it is so over-the-top, in your view, that it is inappropriate. Prof. Stone simply appears to think the condemnation harmful to democracy in a vague and unspecified structural way regardless of whether the condemnation is particularly egregious or abnormal for governmental condemnations. This would seem to be at odds with your 04:58 PM comment, which is far more substantive than anything in Prof. Stone’s post.

    Thanks for the discussion.