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Obama's First Amendment record shows varied views

By Courtney Holliday
First Amendment Center Online intern

One in a series of articles on the First Amendment record and views of 2008 presidential candidates. Note: This article was originally posted in 2007. It was re-posted with updated information on Sept. 29, 2008, and updated again Nov. 3.

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.

Religious liberty
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.

Obama has also spoken in support of faith-based initiatives. During a July speech in Zanesville, Ohio, Obama outlined his plan for involving religious groups in federal anti-poverty programs.

“The challenges we face today…are simply too big for government to solve alone. We need all hands on deck,” Obama said in remarks to Zanesville’s Eastside Community Ministry, according to the Associated Press’s text of his prepared remarks.

The candidate said he would introduce an improved version of President George W. Bush’s current program, changing its name to the Council for Faith-Based and Neighborhood Partnerships. Instead of supporting periodic large conferences, his plan would encourage large religious charities to help train small ones within communities.

Though Obama does not support the use of religious tests for aid recipients nor the use of federal funds to proselytize, according to his campaign fact sheet, he does support allowing religious charities that receive federal funds to consider religion when hiring.

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.

Press & freedom of information
In October, the Obama campaign ended one television station’s access to Obama and Biden. The Boston Herald reported Oct. 27 that Orlando anchor Barbara West of WFTV quoted Karl Marx and asked Biden questions regarding Obama’s plan to “spread the wealth” in an Oct. 23 interview. She also questioned Biden’s campaign comments that Obama would be tested early in his presidency by an international crisis. After the interview, the campaign canceled the station’s upcoming visit from Biden’s wife, Jill.

“This cancellation is non-negotiable, and further opportunities for your station to interview with this campaign are unlikely at best for the duration of the remaining days until the election,” the Herald quoted Laura K. McGinnis, Central Florida communications director for the Obama campaign, as having written.

WFTV news director Bob Jordan said Biden was unhappy with the questions. “We choose not to ask softball questions,” he told the Herald.

Reporters from The Washington Times, New York Post and Dallas Morning News were recently removed from the Obama campaign’s plane, according to The Washington Times. The three newspapers had recently endorsed Sen. John McCain. The Times reported Oct. 31 it was informed of the change two days after its editorial page endorsed McCain.

"This feels like the journalistic equivalent of redistributing the wealth. We spent hundreds of thousands of dollars covering Senator Obama's campaign, traveling on his plane, and taking our turn in the reporters' pool, only to have our seat given away to someone else in the last days of the campaign," said Washington Times Executive Editor John Solomon.

Obama communications chief Anita Dunn said the move was due to space issues and had nothing to do with the endorsements.

"Demand for seats on the plane during this final weekend has far exceeded supply, and because of logistical issues we made the decision not to add a second plane. This means we've had to make hard and unpleasant for all concerned decisions about limiting some news organizations and in some cases not being in a position to offer space to news organizations altogether," Dunn wrote in an e-mail to the Times Oct. 30.

However, the Times reported that Obama spokesman Bill Burton told Politico the seat changes were made in an effort to "reach as many swing voters as we can." The Times having a large circulation in Virginia, a swing state.

The Dallas Morning News was told there was no room for its reporter the week after its Oct. 18 editorial endorsing McCain.

"We were informed last week there wouldn't be room," said Bob Mong Jr., Dallas Morning News editor. "We protested, we continue to protest. We believe that a paper of our size and stature ought to be on the plane. We noticed that they allowed some friendlier media on the plane."

In another instance on the campaign trail, Obama asked the Justice Department to look into preventing the airing of a television ad linking him to William Ayers. According to an Aug. 29 article in The Wall Street Journal, Obama counsel Bob Bauer requested that the Justice Department investigate the ad’s sponsor, the American Issues Project, and Harold Simmons, the funder for the commercial.

The ad questions the relationship between Obama and Ayers, a radical who claimed responsibility for bombings at the Pentagon and U.S. Capitol in the 1960s and has not renounced his actions. Obama has denounced the bombings.

Obama also warned television-station managers around the country about the ad, and networks Fox News and CNN did not air it, according to an Aug. 26 Associated Press report. Local stations in Pennsylvania, Ohio, Virginia, and Michigan did broadcast the ad, however.

A spokesman for the American Issues Project questioned the Obama campaign’s efforts to block the ad. “It seems they protest a bit too much. They’re going all of these routes — through threats, intimidation — to try to thwart the First Amendment here because they don’t have an argument on merit,” Christian Pinkston told the AP.

According to a Sept. 16 report from BNA Money and Politics Report, the Department of Justice will not take action regarding the advertisement. At a Sept. 12 conference sponsored by the Practising Law Institute, an attendee asked Craig Donsanto, veteran director of the Election Crimes Branch for the DOJ, if he would “approve of a case against a hypothetical contributor to a Section 527 group who gave a seven-figure donation based on a request to help or harm the prospects of a particular presidential candidate.” Donsanto said the DOJ would not pursue such an investigation.

As a state senator in Illinois, Obama advocated freedom of information in successfully co-sponsoring 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 went 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.

In December 2007 Obama cosponsored S.2488, 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.

Obama also endorsed a journalist shield law at an April Associated Press luncheon, saying that “courts should decide whether a confidential source deserves protection,” USA Today reported on April 15.

“This raises, I think, a broader issue of civil liberties and our various freedoms, at a time when we have real enemies and real conflict,” he said according to USA Today.

Campaign finance, lobbying, other topics
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.

In the past Obama has supported public financing of campaigns, but he drew criticism in June when he decided to decline public funds for the general election, becoming the first major party candidate to do so since 1976, when the system was created. The Illinois senator raised more than $265 million from donors by the end of April, breaking previous presidential fundraising records.

“It’s not an easy decision and especially because I support a robust system of public financing of elections. But the public financing of presidential elections as it exists today is broken, and we face opponents who’ve become masters at gaming this broken system,” Obama said, according to a June 20 Associated Press article.

Sen. Russ Feingold, D-Wis., a co-author with Sen. John McCain of campaign-finance legislation, called Obama’s decision “a mistake,” according to the Associated Press. However, the AP reported that Feingold spoke highly of Obama’s support of current campaign-finance law.

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. Feingold 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 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. Martin led an initiative in December 2007 to remove the ban on single-company ownership of a broadcast station and a newspaper in the same market. The FCC approved the rule by a 3-2 party-line vote. Media companies had contended that such regulations restricted their free expression.

In response, Obama co-sponsored a “resolution of disapproval” this year with 26 other senators to nullify the FCC’s rule allowing cross-ownership. The measure was approved by a voice vote May 15.

“Today the Senate stood up to Washington special interests by voting to reverse the FCC’s disappointing media consolidation rules that I have fought against. Our nation’s media market must reflect the diverse voices of our population, and it is essential that the FCC promotes the public interest and diversity in ownership,” Obama said in a statement after the Senate vote.

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 senior majoring in economics and public policy at Vanderbilt University in Nashville.

The Associated Press contributed to this report.


Obama says he has no records from Ill. state Senate

Presidential hopeful, who has scolded rival Hillary Clinton for not speeding release of papers from her time as first lady, says he didn't have resources to maintain files from his years as state lawmaker. 11.16.07

Democratic candidates trade barbs over transparency
Barack Obama calls on Hillary Clinton to release tax returns; New York senator says Illinois senator should disclose more about dealings with campaign contributor. 02.12.08

McCain accuses Obama of 'doublespeak' in election-financing flap
But spokesman for Democratic hopeful says likely GOP nominee 'is in no place to question anyone on pledges' after going back 'on his commitment to take public financing for the primary election.' 02.21.08

Senator questions IRS inquiry of church over Obama speech
Joe Lieberman calls probe of denomination 'especially troubling' because agency hasn't given churches adequate guidance about what's allowed. 03.21.08

McCain says he 'narrowly' backs shield law
GOP presidential candidate criticizes potential harm to national security, but also says information from anonymous sources can do good. 04.15.08

Obama says public-financing system 'creaky,' needs reform
Limited money available from the federal treasury for presidential campaigns poses difficult choices for candidates raising large sums, Democratic candidate says. 04.16.08

Senate votes to roll back FCC media-ownership policy
Bush administration official says he’ll recommend the president veto the bill if House approves nullification of agency's new rule. 05.16.08

Obama bypasses public money — 1st since Watergate
McCain, Feingold criticize decision by Democratic candidate, who has called for public financing of election campaigns. 06.20.08

Obama to propose expanding Bush's faith-based program
Democratic presidential candidate plans to announce today his approach to getting religious charities more involved in government anti-poverty programs. 07.01.08

Bush to sign warrantless-wiretapping overhaul
Bill, which Senate passed and sent to White House, is victory for president, as it grants immunity to telecom companies as he demanded and ends almost a year of political wrangling. 07.09.08

Obama seeks to silence ad tying him to '60s radical
Campaign airs response ad to TV spot linking senator to William Ayers, seeks to block ad by warning station managers and asking Justice Department to intervene. 08.26.08

Obama campaign charging news media Election Night fees
'It smells a lot like paying for access,' says Al Tompkins, former TV news director and instructor for journalism institute. 10.23.08

Obama orders rollback of government secrecy
On first full day of office, new president moves to open presidential records, change how agencies interpret freedom-of-information law, limit lobbying. 01.22.09

Obama money dooms current public-finance system
AP analysis: When Democratic candidate reneged on pledge to accept public financing, he destined current system to the trash heap. 10.21.08

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