Recent efforts in Congress and the FCC to rein in "indecent" TV programming are challenging free speech advocates as never before. Given their small numbers, this would be quite bad enough even if the advocates controlled the terms of debate on which this battle is being fought. Unfortunately, however, they do not.
For reasons that range from rhetoric to the lack of a shared view of what it means to be a free speech advocate, the current environment is marked by a number of elements that work against freedom of expression.
Consider, for instance, the kinds of arguments one most often hears from free speech advocates. Much is expressed in the language of the law, trafficking more in judicial precedents than in the kinds of arguments and examples that would speak to the interests and understanding of non-lawyers.
Indeed, one is forced to ask: If we didn't have First Amendment case law, would we be able to explain how and why freedom of expression benefits society?
If the answer to that question is no, then free speech advocates need to find and practice a more embraceable vocabulary. We need to incorporate elements -- like free speech as an aspect of individualism -- that would have some appeal to people in all walks of life.
The lack of personal involvement by the most iconic individuals in fields like moviemaking and publishing is another contemporary problem with free speech advocacy. People like moviemakers Steven Spielberg and George Lucas and, outside of the United States, the author J.K. Rowling, dominate their fields. But what do such people know, or think, about freedom of expression?
One understands that they have careers to pursue -- movies to make and books to write. The fact remains, however, that their careers are well established, and the free speech system that enabled their success needs their help.
These artistic leaders need to educate themselves about the threats here and abroad, and use some of their talent and cachet to meet those threats."
A third problem is that too much free speech advocacy seems parochial. This brand of advocacy stresses issues that are of great moment to journalists and artists but largely ignores issues that affect people and organizations outside of the media. This parochialism, like excessive legalism, wastes the opportunity to get ordinary Americans involved.
A good example of this is the McCain-Feingold campaign finance law, the most egregious aspect of which criminalizes political speech when expressed in advertisements close to the date of federal elections.
This law represents one of the great setbacks to the First Amendment in the history of this country. It's a major restriction on the political speech of individuals, heretofore the most highly regarded form of speech constitutionally. Yet the passage of this law went not only unopposed but actually promoted by people -- like all too many newspaper editorialists -- who are stalwart defenders of their own First Amendment rights.
Other examples of individual free speech issues around which there should be some unified opposition include campus speech codes, and threats to the new class of citizen journalists, bloggers.
The thorniest problem with free speech advocacy today, mentioned by the noted constitutional lawyer Floyd Abrams in his book "Speaking Freely," is the degree to which people's views about free speech are tempered by their personal ideologies.
With respect to the degree of change, this is more a problem with liberals than with conservatives for a simple reason: Free speech advocacy has never been a big part of the conservative credo. Thus, it's no great surprise when conservative media critics, faced with a choice between small-government conservatism and their desire to get government to police TV content, abandon their conservatism in favor of big-government regulation of speech.
But it's something else again when liberals, faced with a choice between their historic free speech advocacy and their personal ideologies, abandon free speech.
Perhaps because of their disdain for "conservative" media like talk radio and the Fox News Channel, many liberals are abandoning their traditional support for such things as the editorial independence of TV and radio station operators (with some going so far as to call for restoration of the Fairness Doctrine), and the right of groups and individuals to express their political views. Some of this political expression is now banned by the aforementioned McCain-Feingold, or contemplated in regulations, such as FEC rules regulating political speech on the Web, that would complicate and threaten the growing practice of blogging.
To be sure, the threat to freedom of_expression emanates from its enemies, not its supporters, many of whom labor under difficult circumstances and with little support or encouragement. But at a time when the enemies of free speech are on the rise, it is vital that its supporters do a better job, and that those who have remained on the sidelines step up to the plate.
Maines is president of The Media Institute, a Washington-based nonprofit organization that specializes in communications policy and the First Amendment.