TCS Daily

On Speak Easies

By Paul J. Cella - April 29, 2004 12:00 AM

I spent some time recently listening to the peculiarly strenuous arguments of a triumvirate of radio disc jockeys on a local morning show; their indignation was directed against the recent gestures and indeed solid actions by our public officials to curtail the tiresome crassness that has burgeoned on public airwaves. The indignation of these DJs was palpable and quite sincere; they are, it seems, convinced that the dismissal of certain notorious personalities, and the chastisement of others through monetary fines, comprise in implication a profound threat to our liberty as Americans.

An infamous half-time show at this year's Super Bowl, replete with the usual unsubtle sexuality and a notable instance of nudity, precipitated this horror show of censorship, but it is abundantly clear that these people do not quite grasp its significance. Full understanding eludes them; and it eludes them precisely because the half-time show, for them, barely rose to the level of significance. Things very much like it, in substance and certainly in vulgarity, are part of their daily beard of entertainment: It was a bit more flagrant, perhaps, but hardly different in kind from what appears hourly on MTV.

But -- and this is important, so pay attention DJs -- for a very sizable portion of the American citizenry, and in particular, for a very sizable portion of the voting citizenry, the half-time show was quite a shock indeed. More: it was as if Viacom (the corporation broadcasting both the game and the half-time debauchery) had pulled back the curtain for a moment, to reveal what goes on back there in the gloom. The smoke cleared for a few minutes, and Americans did not like what they saw. The light shone in the darkness and the darkness knew it not.

In short, the class of people that still, even at this late date in the progress of egalitarian leveling, retains a considerable bulk of the political power in this country -- that is, traditional families with children -- got a good look at what awaits their children from the entertainment industry, and reacted as sober citizens of a republic do to brazen depravity. The revelation could not be undone by all the silver-tongued First Amendment rhetoric in the world. Clear-headed parents will not be argued into enslaving their children to vice. A predator is not beheld with equanimity by the prey.

Do our apologists for libertinism expect fathers to shed bitter tears when "shock jocks" are fired because of pressure from the FCC? Howard Stern fancied himself a victim of "McCarthyism," but he really was the victim of common sense. The American citizen tends to be a rather indulgent sort of fellow, but one cannot treat his standards of decency with contempt forever without incurring a penalty.

And that is precisely the point. There is no sense in an entertainer going out of his way to shock and insult, and then recoiling in astonishment when his insults are returned with solid blows. Spit in a man's face and resent his irritation? That is the behavior of an imbecile. Kick a man in the shin and begrudge him his anger? Could anything be more indicative of unmanly stupidity? Such a mentality is akin to that impiety and arrogance which imagines the slave as appreciative of his degradation; it perceives of slavishness everywhere, and feels little else than contempt.

Someone will reply with shrill bombast by citing the First Amendment, as if the issue were beyond debate. Very well, but let him first acquaint himself with the debate as it unfolded in American history. Let him read of the history of loyal oaths and censorship in this country; and of which side usually had the upper hand and why. He can begin with Leonard Levy's The Legacy of Suppression. Let him reflect on the fact that most of the same lionized legislators who passed the Bill of Rights also passed the Alien and Sedition Acts. Let him consider the specifically American derivation of phrases like "tarred and feathered" and "run out of town on a rail." Let him calculate the settled opinion which allowed North Carolina to retain in her state constitution until 1876 the following clause: "That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State." My point here is not that North Carolina was wise to establish a state religion (though some readers will probably suspect, with some justice, that I could be coaxed to arguing just that), but merely that few among the framers batted an eye at such provisions as this, or at similar ones in South Carolina, Massachusetts and elsewhere.

In fine, let it be recorded that the First Amendment, whatever its intended meaning, is still contained within the larger context of the Constitution, which sets out its purposes, broadly conceived, in its Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

At the least, I interpret this carefully worded preface or introduction, which is unaccountably ignored, as an admonition against absolutizing any isolated provision of the document to which it is affixed. By its guidance, the Republic is to be conceived in its motion as an ongoing public argument. If I may paraphrase: We the people, by constituting ourselves one people, declare that we are locked in argument as citizens under God, about the refinement, enhancement and perfecting of our political order. Our government shall be as a dialogue in classical political philosophy: a sober and very serious, though certainly not dull, attempt to approximate the good (that is virtuous) life of political man. And the sky is the limit as regards legislation, subject to a variety of sagacious qualifiers and codicils, so long as it emerges from the deliberate sense of the community (Publius's words) acting through assemblies of representative citizens to whom We the People have vouchsafed our authority.

The First Amendment ought not be made to trump the Preamble simply because its stirring language appeals to the sentiment of a certain faction. For it was precisely factionalism that provoked in the Framers the greatest fear. The faction that captures through some beguiling sophistry the legislation of the country, and removes a large and crucial issue from consideration by placing it above the public debate, has subverted the Constitution; and made of itself the nation's illegitimate Legislator. It is not that free speech should be obliterated - emphatically not that. It is rather that its lineaments should be subject, like every other issue between men of good faith, to the deliberation and scrutiny of the Republic -- as, indeed, they have usually been -- with the attendant imperfections and errancy of any activity of men here below.

The greatest of Legislation is that which adds virtue onto vice, thus mitigating the injury of the latter by habituation to the former. Edmund Burke explains this principle as it applies to inherited property: "The power of perpetuating our property in our families is one of the most valuable and interesting circumstances belonging to it, and that which tends the most to the perpetuation of society itself. It makes our weakness subservient to our virtue; it grafts benevolence even upon avarice." But today's First Amendment jurisprudence grafts depravity upon liberty; and puts liberty at the mercy of those most likely to abuse it and despise its authentic fruits. For who, if he really treasures Liberty, would countenance the relentless invasion of the precious liberty of the family, of which the Super Bowl half-time show was merely a conspicuous example? There is no greater liberty than that which is embodied in the mother and father who raise their children as good citizens of a Republic, in the love of the truth as that love is reflected in an ongoing public conversation or dialogue which begins with the ringing phrase: "we hold these truths."

Let the DJs say what they will, no adamantine abstraction, rent free of the larger context of this Republic's Constitution, should be made to prejudice that liberty, and have its base prejudice protected by law.

Paul J. Cella is a writer living in Atlanta.His website address is


TCS Daily Archives