The Right Coast

August 24, 2004
"'Shut Up,' They Explained", or, Free Speech and the Kerry Administration
By Maimon Schwarzschild

The Swiftvets have given Senator Kerry a bad week, but the reaction from the Kerry campaign and its media alter egos raises the question what attitude a possible Kerry administration (and its media admirers) would have more generally, after the election, toward critics and criticism. No doubt you can't judge conclusively from what happens in the heat of a campaign, but the indications about Kerry & Co aren't good, and bring to mind Damon Runyon's famous line "'Shut up', he explained".

The New Republic (legitimately a magazine of opinion, so no false colours about "just reporting the news") last week ran a piece by Kenneth Baer -- identified as "a senior former speechwriter to Al Gore" -- calling for aggressive libel lawsuits against the vets. Lawsuits wouldn't come to trial before the election, Baer concedes, but they would "send a message that there will be serious repercussions for anyone who wants to fund or appear" in such ads. Beyond the Don Corleone talk about "serious repercussions", Baer isn't shy about using the phrase "chilling effect" as the goal for the lawsuits he wants: "chilling effect" being precisely what the courts have long said the First Amendment forbids where free speech is concerned.

The New Republic piece, slightly unhinged as it may have been, wasn't an isolated phenomenon. The press and broadcast networks ignored the Swiftvets as long as they could, then came out swinging -- or sneering -- at them, ignoring the points that even the Kerry campaign has had to concede (Kerry's Christmas-eve adventures in Cambodia: "seared, seared" in his memory...) and the points that are matters of public record (Kerry's "war criminals" testimony, and his not-so-brief involvement with the far-left sectarians at "Vietnam Veterans Against the War"). The New York Times editorial denouncing the Swiftvets, as Mickey Kaus rightly says, amounted to saying that the Swiftvets' ad "should be stopped because you just shouldn't be able to make such 'outlandish' independent charges in a campaign".

Senator Kerry has indeed gone to court to try to silence the Swiftvets, though with a Federal Election Commission "campaign reform" complaint, not a libel suit. (In a libel suit, truth is a defence: if the ads are shown to be true, they are not libel under the law.) (How could someone with the political sophistication of a "senior" Al Gore aide have missed such an elementary point? Oh. Right. Never mind.)

The New York Times, for its part, had a busy week commanding "silence": it wasn't just critics of Senator Kerry whom the Times wants shut up. Another object of the Times' admiration, Venezuelan bravo Hugo Chavez, may have fraudulently declared himself the victor in his country's referendum last week, but the Times will brook no discussion of that either:
    It is time for President Hugo Chavez's opponents to stop pretending that they speak for most Venezuelans. They do not. The opposition... needs to stop shouting foul.
As Best Of The Web points out, the Venezuelan vote -- and possible stealing of the election -- was last week; the New York Times is still shouting foul about the election of President Bush three years ago...

So what does all this portend for how a possible Kerry Administration will brook -- or refuse to brook -- criticsm?

It's no secret that George Bush has been the object of relentless and scurrilous attack for a year and more, but Bush has never suggested that his denouncers should be silenced, much less has he taken steps to silence them. Senator Kerry and his supporters, to put it gently, are more uninhibited.

The problem, perhaps, is not just that John Kerry, personally, has a thin skin, though he evidently has. It is not even that Kerry and many of his enthusiasts are people of the post-1960s Left, and that both on campus and off, the culture of the post-1960s Left is so often overtly contemptuous of free speech (for anyone but leftists, of course).

There may be a deeper, "structural" problem for a possible Kerry Administration where criticism and free speech is concerned. Senator Kerry himself evidently thinks that in order to be elected, he has to mislead at least part of the electorate. The root of it is Kerry's decades-long political record, and his evident sympathies, on the far left of the American political spectrum. Such a record and such sympathies, if plainly set forth, would be unlikely to command a majority in an American presidential election. Hence the mendacious "militarism" of the Democratic Convention. Hence Kerry's public statements on all possible sides of the Iraq question.

When a politician is elected -- even with a narrow majority -- on a reasonably forthright platform, or even with a general political stance that is pretty clear, that politician will have something of a mandate, and need not be unduly fearful of critics and criticism. But a politician who is elected by deliberately misleading voters has far more to fear from critics who might point out the discrepancies, contradictions, and lies.

Perhaps, after the election, the press (and networks, etc) would give fair coverage to critics of President Kerry, and to any possible efforts by a Kerry Administration to squelch criticism. (Remember Richard Nixon's wild oval office talk, and occasional actual efforts, to use the IRS, FBI, etc, against his "enemies".) The media didn't just squelch the Clinton scandals, after all.

Then again, the level of media partisanship is far higher now than it was in the Clinton years, and whereas Clinton really was a "New Democrat" on many issues -- and hence out of synch with many journalists -- the Kerry-media symbiosis might remain much stronger even after the election, and journalists might be much more prone to share a siege mentality with Kerry against critics and criticism.

So from a civil liberties and free speech point of view, as well as in other ways, John Kerry's "character", and that of his leading supporters, surely bears watching.

Meantime, all honour to veteran civil libertarian Nat Hentoff, for raising the right questions about Kerry, the media, freedom of debate, and the Swiftvets.

UPDATE: "'Shut up', he explained" wasn't Damon Runyon, it was Ring Lardner of course, in a short story called "The Young Immigrants". (Hat tip to Peter Connolly in Washington D.C.)

FURTHER UPDATE: In a libel case, it's not that "truth is a defence" but rather that the plaintiff has to prove that the contested statement is false. This is important from a free speech point of view, because it makes it harder for a plaintiff to win a judgment and to squelch the "libel". (Hat tip to Walter Diercks, Washington D.C.)