Q&A with Executive Director David Horowitz on Susan B. Anthony List v. Driehaus

Media Coalition is an association that defends the First Amendment right to produce and distribute books, magazines, recordings, films and videogames; and defends the American public’s First Amendment right to have access to the broadest possible range of information, opinion and entertainment.

Its members represent most of the booksellers, publishers, librarians, film, recording and videogame manufacturers, and home video and video game retailers in the United States.

Executive Director David Horowitz

Executive Director David Horowitz

Q: Media Coalition recently filed a friend-of-the-court brief in Susan B. Anthony List v. Driehaus, which is being argued before the Supreme Court on April 22. Why is a case about regulating an Ohio law on speech in campaign advertising important to Media Coalition and its members?
A. Our brief illustrates the importance of having access to the courts to bring a pre-enforcement challenge to a law that infringes First Amendment rights.

A pre-enforcement challenge is a critical tool for protecting free speech because the passage of an unconstitutional law has a chilling effect, making people afraid to exercise their rights. A bookseller or librarian may pull a book from the shelf if they fear that they may be prosecuted. A pre-enforcement challenge allows a court to determine if a law violates the First Amendment before a bookseller or librarian pulls the book off the shelves or has been arrested for not pulling the book off the shelf.

This is a tremendously important principle that Media Coalition helped establish in the 1988 Supreme Court decision in Virginia v. American Booksellers Association, and which has allowed us to bring more than two dozen free speech challenges over the last 35 years.

Q:  When and why was Media Coalition founded?
A: Media Coalition was founded in 1973 in response to a Supreme Court decision, Miller v. California, which changed the definition of obscenity so it was judged based on local community standards. Booksellers, publishers, film producers and others were afraid that they could face obscenity prosecutions in the most conservative parts of the United States. At the time, a movie theater owner in Georgia was convicted of obscenity and faced prison time for showing “Carnal Knowledge,” a movie starring Jack Nicholson and Candace Bergen. Trade associations for these industries created Media Coalition as a means to work together to protect their First Amendment rights in the wake of the Miller decision.

Q. How is Media Coalition different from other groups that protect free speech?
A.  The strategy of the censors is to divide and conquer the business community. Media Coalition unites producers, distributors and retailers in defense of their First Amendment rights and those of their customers and patrons. Some legislators are often more responsive to the concerns of media businesses than they are to public interest groups.

Q. Does free speech really still need protecting in 2014?
A. Of course. Go to our website and you can see almost 100 bills introduced this year in 34 states that violate the First Amendment rights of our members. There will always be people who believe the way to respond to speech they don’t like is to ban it or segregate it or block it or tax it. We often fight attempts to censor speech containing sex or violence but in the last few years we successfully challenged a law that prevented the display of any magazine that focused on marijuana. We also filed friend of the court briefs in the Supreme Court opposing laws that criminalized lying about military citations and portrayals of cruelty to animals. The content, medium or distribution channel may change but the impulse to censor unpopular or offensive speech will always be with us.

Q. Can business owners actually go to prison for selling media?
A. Definitely – most censorship laws carry criminal and civil penalties. This year, we defeated a Mississippi bill banning the sale of material with “sexual content” to a minor. Retailers who violated the law would face 5 years in prison. The bill would have applied to Judy Blume novels, sexual health information, “American Pie” and “Animal House,” and Eminem and Madonna records. A bill in Wisconsin that criminalized posting speech with profane language on the Internet with the intent to annoy or offend someone would have been punishable by 90 days in jail and a $10,000 fine. This could have applied to a Jon Stewart monologue or an Ann Coulter book. We defeated this bill too.

Q.  Aren’t these businesses just defending their profits?
A.  Yes, they are defending their right to do business but that business is providing the public access to the broadest range of speech. It is customers and patrons who benefit from businesses fighting for their First Amendment rights. After all, they only make a profit when someone buys or rents the movie, music or book.

Q: Is Media Coalition mainly involved in litigation?
A: We have brought dozens of challenges to state and federal laws censoring content, but we are always trying to stop legislation before it becomes law. This behind-the-scenes work is much less likely to catch the attention of the press, but we usually oppose the passage of about 100 bills every year.

Q.: How do you prevent bad bills from becoming law?
A: We review more than a 1,000 bills every year in all 50 states and Congress. Usually we identify more than 100 bills we think violate the First Amendment. Then, we will submit testimony for a hearing or a legal memo explaining why the bill is unconstitutional. If there is an opportunity, we will also work with the legislature to amend the bill. If we are not able to convince legislators to make changes, we will build alliances with local businesses, free speech groups, anti-regulation and libertarian organizations, and academics to fight the legislation. We will also raise awareness with the public to explain why the bill could censor free speech.

Q: Why do the issues keep arising again and again?
A:  There are recurring moral panics over the impact of new media. In the 1920s there were claims that jazz music caused rape; in the 1950s comic books were accused of turning kids into juvenile delinquents; in the 1970s movies and television made people violent; in the ‘80s, sexual content was equated with sexual assault on women and in the first decade of the 21st Century people claimed that video games were turning teens violent.

To help people understand how and why these myths arise, we’ve issued several reports, including “Only a Game: Why Censoring New Media Won’t Stop Gun Violence” (2013), and “Shooting the Messenger: Why Censorship Won’t Stop Violence” (2000), which examines the scientific claims of short- and long-term links between all kinds of media — movies, TV and music, as well as video games — and violent crime.

Both reports reflect our belief in the American way of fighting offensive speech: not with censorship but with informed speech, critical speech.