Senate Speech Wars Threaten First Amendment

Any mother (and yes, quite a few fathers) will recognize the story line.

Your kid admits they’ve done something wrong, exactly what they shouldn’t be doing.

"Why did you do it?" mom asks. Because Johnny or Susie (fill in the blank) did. "But if Johnny or Susie jumped off the Empire State Building, would you do that too?" you ask.

Thus we teach the lesson that two wrongs don’t make a right, that just because someone else, friend or foe, does something wrong/stupid/dangerous/wasteful, doesn’t mean you have an excuse to follow suit.

Generally, this lesson gets taught at around the age of three-- four for late bloomers. Someone needs to teach it to the members of the U.S. Congress, who are behaving like a bunch of out-of-control toddlers.

Why are the Democratic members of the United States Senate, presidential candidates included, wasting their time attacking a talk show host for criticizing members of the armed forces for opposing the war?

Simple. Because the Republican members of the United States Senate, along with most of their presidential candidates, wasted their time attacking a liberal political organization for criticizing the general running the war effort for supporting the war.

General Betray Us meet the phony soldiers. Moveon.Org has nothing on Rush Limbaugh.

In case you’ve managed to miss these major issues of state, the Republicans "started it" by passing a resolution condemning the liberal group for calling Gen. David Petraeus "General Betray Us" in an ad in the New York Times.

Or maybe MoveOn "started it" by running the ad in the first place. As your mother could tell you, it really shouldn’t matter who started it. The Republican response to MoveOn was to actually pass a Senate resolution condemning a political ad. Not to be outdone, the Democrats have now seized on comments by conservative talkshow host Rush Limbaugh attacking members of the military who don’t support the war by calling them "phony soldiers.”

Already this week, Sen. Harry Reid, the Democratic leader, has given a speech attacking Limbaugh, and the Democrats have prepared a letter, which both Sens. Clinton and Obama signed, criticizing the talkshow king.

The CEO of Clear Channel, the company that syndicates Rush, has gotten into the fight. In the House, a resolution has been introduced to condemn Rush, although it’s not clear yet whether it will actually be brought up for a vote. Stay tuned for continuing developments.

This latest back-and-forth is only the most recent example of the phenomenon that my friend Matt Bai chronicles in his new book, "The Argument: Billionaires, Bloggers, and the Battle to Remake Democratic Politics"-- the extent to which Democrats, rather than come up with new policies, approaches or positions, are staking their future on borrowing the (worst of) the tactics of the right.

What you start, we’ll do. What’s good for the goose is good for the gander. I wrote that line before I even knew that Steny Hoyer, the Democratic Majority Leader in the House, actually said the same thing.

But is it good for anyone else?

The first problem with this approach to politics is, of course, that it is a colossal waste of time and resources. The Senate should be trying to deal with the actual war in Iraq, not embroil itself in attacks and counter-attacks by liberal political groups and conservative talk show hosts. There are real problems in this country, which they are uniquely suited to deal with because they have the power to enact legislation.

Those of us on the outside, pundits and pundettes who have space to fill, in print and on television, can take on Rush. That’s my job, not their’s, just as it’s Sean Hannity's job to take on MoveOn, not the Republican leadership’s. We can’t pass legislation; they can.

Rush claims he was only referring to one soldier, a disgraced 44-dayer who lied about his own record before attacking the war. Problem is, he referred to "phony soldiers" in the plural, and didn’t get to that particular one for two minutes. Judge for yourself.

Attacks by the Democratic senators only give Rush more attention, and almost certainly a bigger audience.

The second problem is, in my book, the more serious one. It’s called the First Amendment. It embraces the idea that ours is a marketplace of ideas, in which it’s not the business of government, short of an imminent threat of actual violence, to tell people what they can or can’t say.

Congressional resolutions and even letters to the heads of broadcast companies which are highly regulated by government are plainly inconsistent with the tradition of free speech-- which is more important than anything Rush or MoveOn has to say. It’s not just that the Senate should be too busy to be mucking about in the advocacy speech of individuals and groups, but that it is threatening fundamental constitutional values in doing so.

Rush is a big boy (I mean in the sense that he can protect himself, of course, not in terms of girth). MoveOn is a pretty well-established group. Neither will go out of business because they are under attack by Congress; in fact, it’s probably good for their individual businesses.

But it’s not good for the country, not a good precedent for the future, not what Congress should be doing in a country which values advocacy speech by insulating it from government censorship. No matter who started it.

Click here to link to Susan's new book, "Soulless. "

Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.

Estrich's books include the just published “Soulless,” “The Case for Hillary Clinton,” “How to Get Into Law School,” “Sex & Power,” “Real Rape,” “Getting Away with Murder: How Politics Is Destroying the Criminal Justice System” and "Making the Case for Yourself: A Diet Book for Smart Women.”

She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the “Blue Streak” column for

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