In other words, if you are going to take away our guns—which we see as a major defense against tyranny—it would help your argument considerably if you didn’t advocate for other tyrannical measures, such as compromising the First Amendment. And Piers Morgan, who has turned his low-rated interview program into a slightly higher-rated low-rated advocacy program by turning it into the “Piers Morgan anti-gun hour” has done exactly that: advocating against the First Amendment. He has advocated for the suppression of speech both by criticizing Citizens United and advocating for the criminalization of criticizing the government.
Let’s start with Citizens United. This is a landmark ruling by the Supreme Court affirming Freedom of Expression. One of my earliest posts at this site, Freedom of Expression is For Everyone (Even Those You Don’t Like), still presents a good summary of the case and the arguments in favor of that decision (and shows you my dedication to a principle I have literally gone to jail for). I won’t quote my whole piece but some parts are worth quoting extensively:
Sorely missing from most critiques of [the Supreme Court’s ruling in Citizens United] are the facts, probably because they are devastating to their argument. Citizens United made a movie called Hillary: The Movie, allegedly a 90 minute infomercial against Hillary Clinton, who was then seeking to become president. Citizens wanted to advertise for its movie, but the FEC stated that it could not, because they held that the advertisements were tantamount to electioneering by urging against the election of a candidate, and as a corporation Citizens was forbidden from electioneering close to elections.
“But wait,” I hear you say, “didn’t all those news stories say this was about campaign expenditures?” Well, this is where the media has been incredibly disingenuous on this topic. The FEC said that they could not purchase advertising. So you can judge for yourself whether this sounds more like a mere restriction on spending, or a restriction on freedom of expression.
And that knocks down one argument arrayed against this decision: “money is not speech.” It lays bare that if you can’t spend money, your ability to speak will be severely limited.
Thus, the following acts would all be felonies under § 441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship.
In addition to that, the media exception in the law at issue in Citizens United actually made things worse and not better because it meant that not all corporations were banned from speaking, just certain ones:
Further this media corporation exception in McCain-Feingold was in practice arbitrary. GE for instance, was allowed to own NBC and MSNBC. And as GE’s Jeffrey Immelt worked for the Obama administration, anchors such as Keith Olberman and Chris “Tingles” Matthews promoted the Obama agenda, while GE’s competitors didn’t enjoy the same advantage. How cozy.
Meanwhile, bizarrely, Citizens United, a company that appears to do little more than make political documentaries is nonetheless treated more like Exxon than the Washington Post Company (yes, another corporation). Can anyone explain with a straight face why Citizens is not a media company? But the FEC refused to treat them as a media company and sought to limit their speech. And for that matter, why was it that Michael Moore and Disney, were allowed to promote Fahrenheit 9/11, an anti-Bush screed, but CU was not allowed to promote its movie? Even if the decision was not based on political bias, it is still arbitrary, which is fatal under the First Amendment. Under the First Amendment, any restrictions have to be clearly written and applied with utmost consistency, or else there is a danger that democrats will be held to one standard, and the republicans to another.
So, suppose that both GE and LG wanted to sell large electric generators to the military. Suppose likewise, that candidate A in a given race was in favor of GE and candidate B was in favor of LG. Under this media exception, GE could spend all the money it wants directing its media entities to advocate against candidate B right up until the day of the election, while LG would find its speech rights severely curtailed. So in the end McCain-Feingold (the law struck down in Citizens United) wasn’t trying to get money out of politics. It was merely picking winners and losers.
This is an important point, then, when we turn to Piers Morgan’s interview of Justice Scalia apparently around July. I don’t remember it making many waves but it is interesting in light of recent debates. Here’s an embed of the interview:
If you can’t watch the video for any reason, here is the transcript:
MORGAN: Well, let me -- well, let me take up the issue of speech. Let's turn to political fundraising, which, at that moment, under your interpretation, I believe, of the Constitution, you should be allowed to raise money for a political party.
The problem, I -- as I see it and many critics see it, is that that -- it has no limitation to it. So what you've now got are these super PACS funded by billionaires effectively trying to buy elections. And that cannot be what the founding fathers intended.
Thomas Jefferson didn't sit there constructing something which was going to be abused in that kind of way.
And I -- I do think it's been abused, don't you?
SCALIA: No. I -- I think Thomas Jefferson would have said the more speech, the better. That's what the First Amendment is all about. So long as the people know where the speech is coming from.
MORGAN: But it's not speech when it's...
SCALIA: The first...
MORGAN: -- it's ultimately about money to back up the speech.
SCALIA: You can't separate speech from -- from -- from the money that -- that facilitates the speech.
MORGAN: Can't you?
SCALIA: It's -- it's -- it's utterly impossible.
Could you tell newspaper publishers you can only spend so much money in the -- in the publication of your newspaper? Would...
MORGAN: (INAUDIBLE).
SCALIA: Would they not say this is abridging my speech?
MORGAN: Yes, but newspaper publishers aren't buying elections. I mean to -- you know, the election of a president, as you know better than anybody else, you've served under many of them...
SCALIA: I--
MORGAN: -- is an incredibly important thing.
SCALIA: Newspapers...
MORGAN: And it shouldn't be susceptible to the highest bidder, should it?
SCALIA: Newspapers endorse political candidates all the time. What do you mean -- they're...
(LAUGHTER)
SCALIA: They're almost in the business of doing that.
MORGAN: Yes.
SCALIA: And are you going to limit the amount of money they can spend on it?
MORGAN: Do you think the...
SCALIA: Surely not.
MORGAN: Do you think, perhaps, they should be?
SCALIA: Oh, I certainly think not. I think, as I think the framers thought, that the more speech, the better. Now, you -- you are entitled to know where the speech is coming from, you know, information as -- as to who contributed what. That's something else.
But whether they -- whether they can speak is, I -- I -- I think, clear in -- in the First Amendment.
MORGAN: Is there any limit, in your eyes, to freedom of speech?
SCALIA: Oh, of course.
MORGAN: Is -- is there -- what are the limitations in -- to you?
SCALIA: I'm a textualist. And what the provision reads is, "Congress shall make no law abridging the freedom of speech." So they had in mind a particular freedom. What -- what freedom of speech? The freedom of speech that was the right of Englishmen at that time. And--
(CROSSTALK)
MORGAN: What is the difference speech about insurrection being unacceptable and speech as you're burning a flag? Isn't that a form of insurrection?
SCALIA: No. No.
MORGAN: Isn't it?
Now there are several things that come out of that interview. First, notice that Piers is stunningly ignorant of the history of the Constitution. Scalia totally let this pass (I have no doubt that Scalia was aware of the mistake), but Jefferson didn’t write a single word of the Constitution or the First Amendment. It was a collaborative effort but Madison did more than his fair share of writing, so it is okay to substitute Madison for Jefferson in that kind of personalization. But Jefferson wasn’t even in the country at the time. He was in France. So contrary to what some cheap hoax might suggest, he didn’t write a single word of the Constitution.
Second, there is one part of the transcript that they said is inaudible where I think it is perfectly audible:
SCALIA: ...Could you tell newspaper publishers you can only spend so much money in the -- in the publication of your newspaper? Would...
MORGAN: (INAUDIBLE).
SCALIA: Would they not say this is abridging my speech?
What Morgan says clearly is, “But that’s slightly different.” In other words, the corporations in the press should have limitless freedom, but not anyone else. In other words, Morgan buys directly into the media exception.
And yet his recent conduct demonstrates just how wrong that media exception is. For the past few weeks since the massacre at Sandy Hook, Piers Morgan has been almost constantly an advocate of gun control. And he makes very little effort to disguise it. For instance, here’s what he has said in an interview with Politico (still no links for bullies!):
“The president of the United States espoused exactly what I’ve been saying for the last five weeks,” Morgan continued, referring to the President Barack Obama’s proposed ban on assault weapons. “No one can tell me we haven’t had an influence.”
Of course Piers Morgan doesn’t see himself as advocating on a political issue:
But he makes no bones about the fact he is advocating for something:
So in Piers’ mind, this isn’t politics. This is just advocating for what all good people should be for anyway.
I suppose there is cause to say that some issues are so uncontroversial and cut and dried that a “journalist” can kind of advocate for it without really being political or an advocate rather than a reporter. If a reporter says, “hey, there are lots of children looking to be adopted, so why not open your home to one of them,” I don’t think that’s a compromise of objectivity, because who the hell is against that? But gun control is not that kind of issue.
Which is not to say that Piers cannot be an advocate. Just that he cannot pretend to be “just” a journalist when he behaves like this.
And it undermines everything he said about Citizens United. Through Mr. Morgan, a major corporation (Time Warner, which in turn owns the corporation CNN), is throwing its weight behind a certain issue. If all of this was done before the election, would Morgan be criticizing specific candidates for their stance on gun control? Under McCain-Feingold this would likely be seen as electioneering communications and the only thing that would save Morgan from its criminal sanctions is the fact he is working for a media company as he does it. But why should Time Warner get to advocate a certain point of view on guns, but the NRA should not? Indeed why shouldn’t Colt, Smith and Wesson and so on be as free as Time Warner is to advocate their views? It’s not like Morgan is just a journalist: on this he is plainly an anti-gun activist. Morgan wasn’t advocating that corporate power should be removed from politics. He only wanted to give certain corporate speakers, namely people like him, an advantage. Morgan will probably never get this (the more I pay attention to him the more of a shallow twit he comes off as) but his conduct in the last few weeks proves exactly why Scalia is right and Morgan is wrong on Citizens United.
And in case you think that his failure to support Freedom of Expression is limited to his criticism of Citizens United, here’s an exchange that wasn’t in the video that you might have seen me quote from the transcript:
MORGAN: What is the difference speech about insurrection being unacceptable and speech as you're burning a flag? Isn't that a form of insurrection?
SCALIA: No. No.
MORGAN: Isn't it?
Now if you want to ban unnecessary burning generally I think you are on firm constitutional grounds—at least as long as you are consistent on this. But banning burning a flag because it is harsh criticism of the government and it is therefore insurrection? That is tyrannical. Indeed, it is a disturbing throwback to how the British attempted to suppress Freedom of Expression in colonial times. From an official NY State summary of the case:
In the early 1730's, the Colony of New York was under the jurisdiction of Governor William Cosby. The New York Weekly Journal, America's first independent political paper, became critical of the Governor after he replaced Lewis Morris, the Chief Justice of New York, for deciding a lawsuit against the Governor. The critical articles were authored by James Alexander, the founder and editorialist of the New York Weekly Journal, and printed by John Peter Zenger. Alas, it was the hapless printer who was sued by the Governor "for printing and publishing several seditious libels dispersed throughout his journals or newspapers, entitled The New York Weekly Journal; as having in them many things tending to raise factions and tumults among the people of this Province, inflaming their minds with contempt of His Majesty's government, and greatly disturbing the peace thereof" (Bench Warrant for Arrest of John Peter Zenger, November 2, 1734).
That’s right, Mr. Zenger was being suppressed by Governor Bill Cosby! Apparently Zenger didn’t like the governor’s stance on having a Coke and a smile, and Jello Pudding...
Joking aside, this trial ended up being significant as a prelude to our revolution and as an early and positive example of jury nullification. Andrew Hamilton represented Zenger and argued that truth was a defense to these charges. But the courts literally refused to allow this. They said that any criticism, even if it was true, was sedition (which is more or less fomenting insurrection) and thus prohibited under this law. So Hamilton argued to the jury that it was up to them to determine what the law was, and since he was not allowed to put on a defense of truth that the jury had to acquit. And they did.
And apparently Morgan thought the jury got it wrong. I mean, burning a flag as an expressive act doesn’t seem to say much more than “America sucks” by itself. In Texas v. Johnson itself this was done as some kind of protest against nuclear proliferation, to the chant of “red, white and blue, we spit on you.” The messages of “America sucks” and that one would like to spit on the flag or the entire country is not susceptible to being proven or disproven. It’s just opinion, which is protected... except to Piers Morgan who thinks that such conduct should be prosecuted as insurrection (a position disturbingly similar to Brett Kimberlin’s argument that any criticism of his criminal conduct, however peaceful, is incitement and thus can be banned). Apparently Morgan thinks that Governor Cosby had the right of it.
So it turns out that not only is Piers Morgan opposed to the Second Amendment, but also the First.
At least when it suits him. Maybe you didn’t know this, if you were an American reader, but Morgan used to work as an editor at the Daily Mirror before he became a famous talker. And do you know what got Piers Morgan fired? I will let the BBC explain:
Daily Mirror editor Piers Morgan has been sacked after the newspaper conceded photos of British soldiers abusing an Iraqi were fake.
In a statement the Mirror said it had fallen victim to a "calculated and malicious hoax" and that it would be "inappropriate" for Morgan to continue.
The Queen's Lancashire Regiment (QLR) said the Mirror had endangered British troops by running the pictures.
Roger Goodman, of the QLR, said the regiment now felt "vindicated".
Mr Goodman added: "It is just a great pity it has taken so long... and that so much damage has been done in the meantime."
Oh, and lest you think that Morgan was an entirely innocent lamb in all of this:
The BBC's Nicholas Witchell said it appeared Piers Morgan remained unrepentant right to the end
"According to one report Mr Morgan refused the demand to apologise, was sacked and immediately escorted from the building," he said.
Morgan will be replaced on a temporary basis by his deputy, Des Kelly.
And of course what was temporary became permanent. He was out. In this, Morgan’s paper was worse than the flag burners in Johnson, and Peter Zenger. This is not merely an opinion denouncing his own government (the relevant government being Britain in this case), or making truthful statements that put the government into disrepute. This was actually putting out false information about the government which tended to get their soldiers killed in the theater of war, and to create unrest at home. But apparently he didn’t even think he should apologize for that, let alone go to jail. Perhaps he felt this way because his anti-war message was just so right? Or perhaps he felt that way because it was him.
Actually given this tweet about the go-nowhere petition to deport him...
Ironic U.S. gun rights campaign to deport me for 'attacking 2nd Amendment rights' - is my opinion not protected under 1st Amendment rights?
— Piers Morgan (@piersmorgan) December 22, 2012
...I guess he only believes the First Amendment belongs to him. After all, he is criticizing the Constitution of the United States, or at least one amendment to it. But he thinks he has a right to do that, but a flag burner does not. It’s not that he doesn’t have a right to criticize the Constitution or this country generally—he obviously does—but so does that flag burner.
Piers Morgan likes to portray people who are concerned that someday America might turn into a tyranny as people who are paranoid. Never mind that this was a “paranoia” shared by the Founding Fathers, in his advocacy against Freedom of Expression, Piers Morgan has demonstrated beyond any reasonable doubt: tyranny could happen here. And so by denigrating the First Amendment, he has demonstrated why we need the Second: in case a twit with Morgan’s beliefs ever gets into power.
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Sidebar: Also over at Patterico’s we see that Morgan also entertained murder fantasies about rivals. Lovely.
And in the same Politico article I am not linking to due to them being creeps toward my internet friend College Politico, we also get a juicy spat between Morgan and Andrew Sullivan (who is about to go behind a paywall of sanity):
But the approach grates on Morgan’s critics, who think he generates controversy for the sake of self-promotion. Larry King, who previously occupied Morgan’s chair at CNN, recently said the show was as much about Morgan as about his guests. Michael Moynihan, a columnist at The Daily Beast, likened Morgan’s booking of pro-gun “crazies” to Mike Tyson’s post-prison boxing matches, where weak opponents were sought out merely to bolster the former champion’s image. The blogger Andrew Sullivan, who has had it in for Morgan for years, accuses the host of broadcasting “a rolling freak-show designed entirely for ratings.”
Morgan, who describes himself as “deliberately provocative” and knows he has “a unique ability to rub certain people the wrong way,” doesn’t really care — or, in his native tongue, doesn’t give “a monkey’s cuss.”
“Andrew Sullivan is a dick,” Morgan told POLITICO. “He’s an extremely bitchy, deeply unpleasant, rather confused individual who for whatever reason despises the very spittle I put on the floor. Well, good luck to you, mate. But I couldn’t give a toss.”
Oddly I find myself agreeing with both men when speaking about the other.
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Disclaimer:
I have accused some people, particularly Brett Kimberlin, of reprehensible conduct. In some cases, the conduct is even criminal. In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system. I do not want to see vigilante violence against any person or any threat of such violence. This kind of conduct is not only morally wrong, but it is counter-productive.
In the particular case of Brett Kimberlin, I do not want you to even contact him. Do not call him. Do not write him a letter. Do not write him an email. Do not text-message him. Do not engage in any kind of directed communication. I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.
And for that matter, don’t go on his property. Don’t sneak around and try to photograph him. Frankly try not to even be within his field of vision. Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).
And do not contact his organizations, either. And most of all, leave his family alone.
The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report. And even then if he tells you to stop contacting him, obey that request. That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.
And let me say something else. In my heart of hearts, I don’t believe that any person supporting me has done any of the above. But if any of you have, stop it, and if you haven’t don’t start.
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