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Obama's First Amendment record shows varied views

By Courtney Holliday
First Amendment Center Online intern
08.09.07

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 First Amendment.

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.

Obama has 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 type.

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 doors.”

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 Associated Press.

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 inspired.”

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 to society.

“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 digital streams.

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 Dec. 18.

"I believe both the proposed timeline and process are irresponsible," wrote Obama.

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 8.

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 said.

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


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