THE CONSTITUTION AS NUISANCE: REFLECTIONS ON THE THIRD PRESIDENTIAL DEBATE

By JULIE HILDEN


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Thursday, Oct. 19, 2000

The third presidential debate might have been more remarkable for the points on which its candidates agreed, than for the points on which they differed. Both Governor George Bush and Vice President Al Gore favor both the death penalty and regulation of entertainment media. Moreover, both of them have made clear that they view any constitutional impediments to these measures as obstacles to be surmounted, rather than as cautionary tales from our country's founding. Yet the way in which both candidates treated constitutional issues in the third debate — as if the Constitution were merely an annoying set of regulations with which we must comply — was still remarkable.

Although each candidate touts the importance of values, each also ignores the values enshrined in the constitutional provisions that guarantee free speech, and punishment that is neither cruel nor unusual. And what was disturbing with each candidate was not just his stance, but also his tone, as if the passionate beliefs that are represented by these amendments are as empty and arbitrary as regulations for setting traffic patterns.

Bush on the Death Penalty: Not My Job

Governor Bush faced a question from a member of the Town Hall about why he had seemed positively happy, in the second debate, to assure audience members that James Byrd's killers had been executed. Unfortunately, the question — meant to be a harsh challenge that focused on Texas' high number of executions — allowed a softball answer. Pulling a woeful face, Bush simply assured the questioner that indeed, he did take the death penalty seriously -very seriously. But, he claimed, it was his job as Governor simply to apply the law, examining whether it seemed that the accused was guilty and had a fair trial, and if so, to allow the execution to go forward.

Bush has an uncomfortable propensity to claim that anything he would rather not deal with is not his job. (Think of the first presidential debate, when he insinuated that as President, he would be hamstrung from doing anything in regards to his FDA appointee's decision, with respect to RU486). With executions, Bush has adopted the same strategy of describing his role as a narrow one, constrained by law.

Yet, of course, the Governor's role can be much larger than Bush has depicted it to be. A Governor who values the Constitution could look at each execution much more broadly and at his task of review much more deeply. He could also be troubled by the sheer and indeed "unusual" number of executions his State had accomplished, and could say so.

The job of Governor is not as narrow a job as Bush has painted it, unless there is a narrow man in it. And the point of review of death sentences is not to go forward with a heavy heart, but rather to look into one's heart and see, in a particular case, whether one can go forward at all, or ever. These broader questions are still open to us, and the Constitution invites public officials, in particular, to answer them individually and seriously, not as bureaucrats.

Gore on the First Amendment: Not For Our Kids

Vice President Gore, like Governor Bush, adopted a narrow view of his constitutional responsibilities — though, with Gore, this became clear in his discussion of the regulation of entertainment media, with regards to the First Amendment. On this topic, Bush had reeled off a list of possible regulatory tactics. Gore, in contrast, offered an anecdote that showed how censorship can begin at home.

Of course, this is not a right that the First Amendment guarantees — since that amendment restricts only the government. But it is a right that the First Amendment inspires us to consider. The beginning of Cameron Crowe's recent, autobiographical movie "Almost Famous" conveys in a few quick scenes how important music is to teenagers' self-definition: The character based on Crowe's sister leaves home largely because she can't play her own music, bequeathing to her younger brother a stack of albums she leaves in a box under the bed. If you listen to one by candlelight, she promises, "you'll see your future."

Although it is a laugh line, there is truth in it. It is hard to think of teenagers defining themselves, except through music — and often through music of which their parents do not approve (And it's hard not to hope that Karenna kept another copy of the album with "awful lyrics" under her bed). Yet Gore sees it as a threat that parents — many of them baby-boomers who were teenagers in the sixties, at that — must "compete with mass culture to raise your kids." What else were the Sixties about — except that then, the relevant "mass culture" was the counterculture? And when has young people's right to speak and listen ever mattered more? Gore has failed to listen to the lessons of the Constitution, even as they were applied by his own generation.

Masking Constitutional Issues In Value-Neutral Terms

In any case, even if the First Amendment does not inspire the Vice President to believe that his children might have free speech rights, too, there is no question that the movie, television, and even video game producers he attacks do have such rights. His response to this point, during the third debate, was simply to acknowledge that he is cognizant of the First Amendment, and to indicate that his attacks will focus on the "false and deceptive advertising," rather than on Constitutionally protected speech.

The problem, though, is that the advertising at issue — which allegedly markets R-rated movies and other "adult materials" to children — is not actually "false and deceptive." Generally, it accurately represents the contents of the materials, sometimes too accurately for parents' taste. (Think, for example, of an ad for "American Pie" that might appear in Seventeen; the problem, to parents, would not be that the ad was deceptive, but that it candidly conveyed the movies' sexual content).

Nor are the advertisers being "false and deceptive" in marketing R-rated movies to the children who can legally attend them. Instead, the words "false and deceptive" here — while intended to sound neutral — are only stand-ins for the type of value judgment by government that the First Amendment forbids. Can another seriously question that the impetus behind these regulations is dislike for the "too violent" and "too sexual" movies, television programs, and video games they advertise?

Now, it is possible that under the case law, Vice President Gore might get away with this type of regulation, although it would be a stretch. Certainly, definitions of "false and deceptive" should receive more scrutiny when an ad for a movie is at issue, than when it is an ad for, say, an acne remedy. And advertising for First Amendment-protected speech should be as assiduously protected as the speech itself. Otherwise, who will know the speech is out there to be purchased and listened to?

But what is important is that, even if the courts side with Gore, that should not be enough. Vice President Gore — who has repeatedly drawn attention to his twenty-four years of government service, marked by numerous oaths to uphold the Constitution — is under an independent obligation to examine conscientiously whether the proposals he supports violate his own understanding of the First Amendment. As with Governor Bush on the death penalty, putting on a serious mien and underlining the weightiness of the task is not enough.

Gore and Bush have both become adept at spinning Constitutional issues as if they were not Constitutional issues at all. Bush focuses on the application of the death penalty and not its justice; Gore focuses on advertising, forgetting that suppression of advertising chips away at audiences and undermines speech as surely as pure censorship does.

Julie Hilden, a FindLaw columnist, is an attorney and freelance writer. She practiced First Amendment law at the Washington, D.C. firm of Williams & Connolly from 1996-99. Her memoir, The Bad Daughter, was published by Algonquin Books in 1998.

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