One in a series of articles on the First Amendment record and views of
2008 presidential candidates.
In his 11 years in government service as a member of the Illinois Senate and
the U.S. Senate, Barack Obama has taken varied stances on issues related to the
Although his expertise is not in First Amendment law, Sen. Obama, D-Ill.,
does have experience in constitutional law, having served as a senior lecturer
in law at the University of Chicago, where he specialized in due process. As an
attorney with Miner, Barnhill and Galland, P.C., Obama litigated civil rights
cases, particularly in the areas of voting rights and employment.
As a presidential candidate who often touts his religion, Obama has been
outspoken in supporting the expression of religious beliefs by public officials
while also championing separation of church and state. In his June 2006 keynote
address at the Call to Renewal’s Building a Covenant for a New America
conference in Washington, D.C., Obama noted that while religion is not necessary
for morality, “Secularists are wrong when they ask believers to leave their
religion at the door before entering into the public square.” Obama also spoke
in this address of the important role that religious individuals played in
establishing the First Amendment’s religious freedoms.
In discussing how to build partnerships between the religious and the
secular, the Democrat noted that although progressives should allow
acknowledgement of religion by believers, conservatives should “understand the
critical role that the separation of church and state has played in preserving
not only our democracy, but the robustness of our religious practice.”
“Folks tend to forget that during our founding, it wasn’t the atheists or the
civil libertarians who were the most effective champions of the First Amendment.
It was the persecuted minorities. It was the forbearers (sic) of the
evangelicals who were the most adamant about not mingling government with (the)
religious, because they did not want state-sponsored religion hindering their
ability to practice their faith as they understood it,” he said.
denounced inflammatory remarks from his Chicago pastor, Rev. Jeremiah Wright,
who has railed against the United States and accused the country of bringing on
the Sept. 11 attacks by spreading terrorism. Obama wrote on a Huffington Post blog
that he had looked to Wright for spiritual advice, not political guidance, and
he had been pained and angered to learn of some of his pastor’s comments for
which he had not been present. Obama told MSNBC that Wright had stepped down from his campaign’s African
American Religious Leadership Committee.
Advocating freedom of information as a state senator in Illinois, Obama
successfully co-sponsored the Verbatim Record Bill, S.B. 1586, with state Rep.
Barbara Flynn Currie, D-Chicago. This legislation, which was signed into law in
August 2003 after having been pushed by the Illinois Press Association for
nearly a decade, requires public bodies to make video or audio recordings of any
meetings occurring behind closed doors. The bill passed the House and the Senate
by large margins and made Illinois the first state to enact a law of this
Illinois Press Association Executive Director David L. Bennett praised the
bill when it passed: “All public officials will have to watch what they do. They
are going to have to think about how they behave when they go behind closed
Since being elected to the U.S. Senate in 2004, Obama has advocated similar
transparency in government, co-sponsoring the Federal Funding Accountability and
Transparency Act of 2006 with Sen. Tom Coburn, R-Okla. The act, signed by
President Bush last September, created an online database to track around $1
trillion in government spending on grants and contracts. The law “represented a
small but important step in the effort to change the culture in Washington,
D.C.,” according to a statement released to the public by Obama and Coburn after
the bill was signed. The senators also said it would equip American taxpayers
with “a significant tool that will make it much easier to hold elected officials
accountable for the way taxpayer money is spent.”
The law, which is to go into effect Jan. 1, 2008, will allow citizens to
scrutinize government contracts. Individuals will be able to search the database
for companies, associations, states or localities to determine what federal
grants and contracts the entities have received.
“By allowing Americans to Google their tax dollars, this new law will help
taxpayers demand greater fiscal discipline,” Bush said about the law.
Recently, Obama joined in the Senate's unanimous vote for the OPEN Government
Act, which updated the open-government requirements of the Freedom of
Information Act. The Associated Press also reported that he said in an August
campaign stop in Iowa that if elected president, he would issue an executive
order for information to be released to individuals and groups who request it as
long as doing so harms no protected interests.
On the campaign trail, Obama has pledged to increase the general public’s
access to information if he is elected president. A June 25 article in The
New York Times reported he has promised that as president, he would post
non-emergency bills for five days online to give the public a chance to provide
feedback before he signed them into law.
Though Obama has been a champion of the First Amendment in the areas of
religion and transparency, less attractive to First Amendment advocates may be
Obama’s record on campaign-finance, petition and cultural-expression issues.
Obama introduced the Curtailing Lobbyist Effectiveness through Advance
Notification, Updates, and Posting Act (The CLEAN UP Act) in 2006. This bill
would have opened congressional conference committee meetings and deliberations
to the public and/or televise them. Additionally, any changes to a bill from the
House and Senate versions would have to be identified by the conference reports.
The full Senate could not have considered a bill until it was available to all
senators and the general public online for at least 72 hours. This unsuccessful
bill was aimed at giving the public greater information access — but presumably
at the expense of "lobbyist effectiveness." Lobbying is a form of the First
Amendment-protected right to petition. The bill died after it was referred to
the Committee on Rules and Administration.
In the arena of lobbying as it affects campaign finance, Obama was a leader
in passing the Senate’s Legislative Transparency and Accountability Act. This
ethics- and lobbying-reform bill, signed by President Bush in September 2007, is
similar to one that Obama had introduced with Sen. Russ Feingold, D-Wis., in
January 2007. The provisions from Obama and Feingold’s bill that were used in
the recently passed act include bans on gifts and meals from lobbyists, longer
time limits for legislators before transitioning from government service to
lobbying, and a halt to subsidizing corporate jet travel for lawmakers. The
current bill also contains an amendment written by Obama that requires
contributions collected for candidates, leadership PACs and party committees by
lobbyists to be disclosed. Obama’s Senate Web site noted that The Washington
Post said about the amendment, “No single change would add more to public
understanding of how money really operates in Washington.”
In recent campaign speeches, Obama has further said that if he is elected
president, his administration would prohibit past political appointees from
lobbying the executive branch during his term.
In 2004 when Illinois residents pushed for legislation to create “Choose
Life” license plates, Obama, then a state senator, was critical. Choose Life
Illinois Inc., a group composed mostly of adoption advocates, had tried to get
legislative approval for the plates, and the state had refused. In January 2007,
U.S. District Judge David H. Coar ordered the state to offer the plates and
dismissed accusations that the plates represented an anti-abortion message.
However, some opponents, including Obama, saw the plates as an unfair promotion
of an anti-abortion position.
“If we’re going to promote one side, the other side has to be promoted as
well,” Obama said during discussion on the legislation, according to the
Though Coar saw the plates as more pro-adoption than anti-abortion, he
responded to opponents by saying that the message itself did not matter. “The
First Amendment protects unpopular, even some hateful speech. The message
conveyed by the proposed license plate is subject to First Amendment
protection,” he said in his opinion.
On less politically charged, but perhaps more pervasive, topics, Obama has
expressed distaste for some forms of speech, although he has not attempted to
ban them through legislation.
Discussing recent attention to misogynistic and violent lyrics in rap music
at an April 2007 campaign event in South Carolina, Obama said, “I think that all
of us have become a little complicit in this kind of relaxed attitude toward
some pretty offensive things.” He added, “Just because you can say something
doesn’t mean you should say something.” When talking about the rappers’ terms
for women, Obama said they were “degrading their sisters,” and that he “wasn’t
Obama has also spoken out about indecency on television. In a November 2005
speech to the Kaiser Family Foundation, Obama stated his support for the work of
Sens. Ted Stevens, R-Alaska, and Daniel Inouye, D-Hawaii, who have advocated for
more indecency regulation of broadcasters and cable companies. In that speech
Obama described the difficulty in balancing First Amendment liberties with
cultural values in the context of regulating sex and violence on television.
“It’s one thing to discuss sex and violence on television within the larger
context of the culture wars — as a values debate between First Amendment
crusaders and those who believe government should decide what we can and cannot
watch — but it’s another thing altogether to be faced with these issues while
you’re sitting in front of the TV with your child,” he said in the speech.
He described the problems of children being exposed to certain elements of
sex and violence so early and asserted that broadcasters have a responsibility
“We know that with the pervasiveness of mass media today — the existence of
so many means of communication that are so easily accessible all over the world
— it’s very difficult to regulate our way out of this problem. And for those of
us who value our First Amendment freedoms — who value artistic expression — we
wouldn’t want to,” he said. “We also need to make it clear that for both
broadcasters and their competitors there are large civic obligations to the
American public. Obligations to reflect not the basest elements of American
culture, but the profound and the proud,” he added.
He later praised steps that the Federal Communications Commission has taken
to monitor broadcasters as the transition to digital television begins, one of
which requires broadcasters to air children’s educational programs on all
In October 2007, Obama had less flattering words for the FCC.
In a letter to FCC Chairman Kevin Martin, Obama called "irresponsible" a plan
to resolve the debate over media-ownership rules by year's end. Obama criticized
the agency's record in promoting minority ownership in media companies and asked
the Republican chairman to reconsider his proposed timeline. The FCC is
considering elimination of several rules, including one that bans a single
company from owning a broadcast station and a newspaper in the same market.
Media companies contend such regulations restrict their free expression.
Martin, who voted to loosen media-ownership restrictions as a commissioner in
2003, said he would like to make public his proposal on Nov. 13 and vote on it
"I believe both the proposed timeline and process are irresponsible," wrote
FCC spokeswoman Mary Diamond would not comment on Obama's letter
specifically, but noted the agency’s diversity committee looks into
minority-ownership issues. She also said the FCC had conducted numerous public
meetings around the country regarding media ownership.
One not-so-publicized incident with First Amendment implications involving
Obama occurred during a May 2007 presidential campaign fundraiser at a Richmond,
Va., art gallery Plant Zero.
The Richmond Times-Dispatch reported in a May 9 article that before
the event, Obama’s staff told local artist Jamie Boling to cover two of his
paintings in the gallery, saying the paintings were a “deal breaker.” If the
paintings remained in sight, staffers said, the event would not take place at
the gallery. One of the works was a 6-by-10-foot painting of an exposed Britney
Spears getting out of a limousine, and the other depicted a young woman wearing
a “Kill Lincoln” T-shirt from the movie “Fast Times at Ridgemont High.” Boling
replaced one painting and covered the other with a sheet.
Though he told the Times-Dispatch that at first he felt censored,
Boling said, “The longer I thought about it, I realized what the issue was. That
space that leads into the event space was going to be used for photography.”
Another incident that drew the attention of First Amendment advocates
involved Obama’s children. According to ABC News, Obama’s campaign threatened
legal action this year against Lindsay Ashford, an American expatriate living in
Europe and a self-professed pedophile who posted on his Web site judgments on
the “cuteness” of presidential candidates’ children. Obama’s attorney, Robert
Bauer, sent a cease-and-desist letter to Ashford in February, calling the use of
photos and the comments “a criminal act.” Bauer demanded immediate removal of
the photos, and references to Obama and his family.
Ashford, who mentioned no criminal act in naming the girls, said he was
merely attempting political satire, and that he had no intention of removing the
references from his site (although he did remove the photos).
Attorneys specializing in free speech said they were surprised by Obama’s
threat of legal action. “If Obama knows that his lawyer is doing this, then
that’s one reason not to vote for him. These are clear free-speech issues,”
Maryland-based First Amendment lawyer Jonathan Katz told ABC News on March
Lawrence Walters, a Florida-based constitutional lawyer, told ABC that he
doubted Obama would win such a lawsuit if one were filed.
“The big concern I would have is that if in the abstract, you don’t allow
free speech for these kinds of people, that’s something to really think about.
When we’re looking at the platform of the campaign, who else doesn’t get
free-speech rights? You have to think through the implications,” Walters
Courtney Holliday is a junior majoring in economics and public policy at
Vanderbilt University in Nashville.
The Associated Press contributed to this report.
Updated in 2008