The naked truth about free speech

6 June 2000

It’s time America faced facts: that First Amendment of yours has got to go. The right to free speech? Ha! Don’t make me laugh.

Doubtless when it was adopted its proposers thought they were defending the right to political expression, the right to disagree without persecution, and the right to stand up and speak out without being forced to sit down and shut up again by the threat of sharp objects under the fingernails.

It is doubtful whether what they had in mind was the right of 150 people to be photographed lying naked under the Williamsburg Bridge, or the right of telecoms companies to use private data to harass customers by phoning up and trying to sell them unwanted products. Nevertheless, both these things happened this week thanks to the First Amendment.

In New York the High Court refused a request from the city to ban photographer Spencer Tunick from his latest nude outing. Tunick – who rather sensibly appears to stay clad during his photoshoots – specialises in pictures of public nudity, with the result that his volunteer models specialise in getting arrested. In the past his naked models have been tackled by the law while posing on top of Rockerfeller Centre Christmas trees and on snowdrifts under signs advertising “Frozen Fantasies” ice cream. The last straw for Tunick (who is usually arrested with his models) came last summer when the NYPD descended in force to arrest the participants of a mass shoot. Tunick sued the city and on May 19th this year a federal appeals court in Manhattan decided the First Amendment gave him the right to take the pictures, despite laws banning public nudity. With the decision upheld by the High Court, the session went ahead this week, and very odd they all looked too – rather like unpeeled prawns laid out on the sidewalk, apart from Tunick, who was clothed and looked warm and cosy.

Jolly good on him, I say, and long may the freedom of artistic expression continue. After all, it was only this week in Britain that Brighton seafront saw a naked demonstration to campaign for the right to public nudity. And history does not record whether the Queen was amused by the different flavour of protesters who lined up outside Buckingham Palace, bent over, and dropped their trousers in some form of mooning protest – again this week. In truth, she probably didn’t see a thing as the line of buttocks was effectively hidden from the Palace by a parallel line of press photographers who hustled so close that their lenses were in some danger of committing a grave indiscretion upon the persons of the bending protesters. All good fun, but is this really something you’d want to amend your entire constitution to protect?

But enough nudity. Tunick’s was not the only First Amendment case this week, and the other was considerably less amusing.

US West, SBC Communications, and a host of other telecoms companies challenged a Federal ban preventing them collecting data from customers’ phone bills and using it to make unsolicited sales calls to them, unless the customer explicitly gave them permission. They actually had the audacity to claim that the ban infringed their First Amendment rights. Excuse me? Precisely how is pestering people to part with even more money part of the inalienable right to free expression? I suppose it could be argued that anyone who makes a living from that sort of thing is in dire need of legal protection from the persecution and torture they so richly deserve. Even so, how ironic that companies which make millions from charging people to talk should hide behind the right to free speech.

The depressing thing is that they won. The Supreme Court, no less, refused without comment to reinstate rules aimed at protecting the public that had previously been struck down by an appeals court. The Federal Communications Commission, which drew up the rules, is not appealing.

The phone companies had claimed the rules violated their First Amendment rights because they took away their ability to tailor their communications to their customers. For “communications” read sales pitches. A spokesman for US West, in a prime example of corporate doublespeak, claimed: “The court has taken a responsible and consumer-friendly position. Now the phone companies can protect privacy while at the same time answering customers’ desires to be kept up-to-date about new products and services.”

Personally speaking, if I want to be kept informed about a company’s new products I’ll ask it. This is a point I made quite forcefully to a sales rep from the main British phone company, BT, when he woke me up with a phone call while I was trying to catch up with my sleep after some shift work. Could he speak to my partner, he asked. No, I said, she’s at work. So then he asked me to identify myself, and to provide proof. Bear in mind, at this point in proceedings he hadn’t actually said who he was, or why he was phoning. Now, I don’t know about you but I strongly object to being woken up and interrogated by some pointy-headed little twerp whose ultimate aim is to get me to part with money. I don’t think that’s an unreasonable position to take, and I took it in some detail and with emphasis. I suspect he won’t call again. Of course, if this had happened in America he’d probably have been able to claim that I violated his First Amendment rights by hanging up on him as he was trying to express himself, using his tailored information from our phone bill.

It’s precisely cases like this that make me think that the USA needs to have a radical re-think about the sweeping protections offered in the Constitution and the Amendments thereto. I’m not, of course, actually advocating reducing people’s rights – rather the opposite if anything. Tightening the First so that the phone companies couldn’t have used it would increase ordinary citizen’s rights to enjoy life and liberty, and to pursue happiness, without interruption from junk phone calls. But you can’t just wave a hand and say, in effect, everyone can say whatever the hell they like. Not in this day and age you can’t, anyway.

The phone company’s opponents in the case argued that the First Amendment didn’t apply because the information concerned was data, not speech. The court didn’t agree, but there would be a good place to start. Let’s come up with a definition of speech that really means what it says and can’t be twisted to include just about anything. Why should the contents of a database be given the same protection as a poem?

And while we’re about it, let’s strip companies of their right to free speech altogether. What do they need it for? The drafters of the original amendment, remember, were aiming to protect the right of political expression. Many of them were businessmen, but nowhere do they drop hints that they intended the protection to extend to their businesses.

Nude art in public? Where’s the problem? The real obscenity is profit-bloated companies scrambling to boost their stock prices by invoking a law that ought to be protecting dissidents from torture and jail.

Like I say, that First Amendment, it’s simply got to go…