Obama’s First Amendment record shows varied views

Monday, September 29, 2008

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

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

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

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

“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

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

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

Courtney Holliday is a senior majoring in economics and public policy at
Vanderbilt University in Nashville.


The Associated Press contributed to this report.