The Constitutional Right to Listen

McCain-Feingold and the Fairness Doctrine hurt more than speakers’ rights.

We usually think of freedom of speech as involving the right of speakers to speak, whether through public addresses, in writing, or over radio and television airwaves. But the courts have recognized an additional dimension to First Amendment free speech rights: the right to listen and watch. This right takes center stage in a current challenge to the McCain-Feingold campaign-finance law and could play a role in the debate about the Fairness Doctrine.

Every circuit appeals court has acknowledged the right to listen and watch. For example, in 2003’s Rossignol v. Voorhaar, the Fourth Circuit held that the First Amendment protects the right to receive information and ideas. Similarly, in 1999’s U.S. West, Inc. v. F.C.C., the Tenth Circuit held that the two components of effective speech are a speaker and an audience, and that a restriction on either of these components is a restriction on speech. In 2005’s de la O v. Housing Authority of City of El Paso, the Fifth Circuit found that the right to receive information is just as protected as the right to convey it.

The U.S. Supreme Court has also recognized this right. In 1986’s Pacific Gas and Elec. Co. v. Public Utilities Comm’n of California, the Court held that the constitutional guarantee of free speech protects significant societal interests wholly apart from the speaker’s interest in self-expression, including the public’s interest in receiving information. And in 2000’s U.S. v. Playboy Entertainment Group, Inc., the Court ruled that, under the First Amendment’s free-speech clause, the citizen is entitled to seek out or reject certain ideas or influences without government interference or control.

All this raises the question of whether McCain-Feingold, which restricts political speech by both campaign and non-campaign organizations, violates citizens’ right to hear pertinent messages. Thanks to a new case, Citizens United v. Federal Election Commission, the Supreme Court may answer that question.

In 2007, the non-profit group Citizens United financed from its own corporate treasury the production of a feature-length documentary film about Hillary Clinton. The movie focused on past Hillary scandals including the firing and subsequent criminal prosecution of the White House Travel Office staff, repeated campaign-finance-law violations, and the presidential pardon—while Hillary was seeking the endorsement of Puerto Rican activists for her Senate campaign—of a Puerto Rican terrorist convicted of murder.

The Federal Election Commission prohibited broadcast of the movie in 2008, when Hillary was running for president, because its financing did not comply with McCain-Feingold restrictions. Last week the American Civil Rights Union (of which I am general counsel) filed a brief with the Supreme Court supporting Citizens United’s argument that this broadcast prohibition violated the Constitution’s free-speech guarantee. One of the brief’s arguments was that the prohibition violated the rights of citizens who wanted to watch and listen to the movie.

This overlooked constitutional right is also central in the possibly pending battle over readoption of the Fairness Doctrine by the Obama administration. Besides the constitutional free-speech rights of broadcasters and talk-show hosts, the doctrine would violate the audience’s constitutionally protected right to listen.

Those advancing the Fairness Doctrine’s revival are not interested in balance; they are interested in shutting down critics. Obama revealed his thinking about talk radio in his recent attack on Rush Limbaugh, in which he urged Republicans not to listen to the popular host. This indicates how much trouble Obama thinks talk radio is for his agenda, which may mean that his interest in using the Fairness Doctrine to shut it down will be high.

The coming years, then, are fraught with hope and peril for First Amendment rights—not just the right to speak, but also the right to listen.

— Peter Ferrara is general counsel of the American Civil Rights Union and director of entitlement and budget policy for the Institute for Policy Innovation.
— Peter Ferrara is a senior fellow at the Free Enterprise Fund, director of entitlement and budget policy at the Institute for Policy Innovation, and general counsel for the American Civil Rights Union.