Invited Contributor: Lawrence Dietz

08/21/2005 09:11 pm ET | Updated May 25, 2011

First Amendment Blue

For the media, is anything more sacrosanct than the First Amendment? Most of the media points to Judith Miller as a latter-day Joan of Arc, protecting the freedom of the press clause of the First Amendment from her jail cell.

Then there's the other protected media freedom: Freedom of speech. While freedom both of speech and press has its recognized limitations (slander, libel), Freedom of Speech has been expanded significantly in the past fifty years by extending its reach from people to things, i.e. corporations.

Seems reasonable enough. If big gummint, to use Ronald Reagan's pronunciation, shouldn't be able easily to shut you or me up, then it shouldn't be able to shut up any business, from a small market distributing leaflets in the neighborhood to big oil making its case in a paid ad on The New York Times Op-Ed page.

Naturally, there are some slap-on-the-wrist restrictions: load the bowl with marbles so that the TV spot for vegetable soup will show a lot of veggies resting on the marbles and floating on top of the broth, and the Federal Trade Commission will go into action.

Leave it to the city government of Santa Monica, California, though, to advocate extending corporate free speech to the utopian level. The business in question is a sex paraphernalia shop that got its city license by pretending to be a mere apparel store, then opened, apparently in violation of the city's zoning regulations prohibiting an adult enterprise within 500 feet of a church, school, or residential neighborhood. (The sex shop breaches all three distance limitations.)

The neighborhood erupted. Meetings! Petitions! Warnings of sex addicts infesting the area! Worries that kids on their way to school would be corrupted by window displays! The city, which prides itself on appearing responsive, sicced the city attorney on the case, only to learn that the burg's anti-adult-business ordinances were old and leaky, just the sort of laws to invite lengthy (and well-financed) attacks from adult business industry lawyers.

The city legal beagles ducked and covered. Then a city council member gave another reason for caution: he said that while the old law may be out of date and in need of revision there are First Amendment constraints that need to be considered when drafting an ordinance.

First Amendment constraints! Think of Madison, Jefferson, Monroe, and James Mason sweating the Bill of Rights; their intellectual vigor and moral enlightenment is now being used as a shield by a blathery local politician who can't figure out a way to keep a sex shop from operating.

I'd love to know what Judith Miller would make of Santa Monica and the sex shop's free speech rights, but I expect she's hard at work on a (seven figure advance?) book about her defense of the First Amendment.