Guarding the boundaries

"Political floats in the Ashland Fourth of July parade will no longer be held to a different standard after the American Civil Liberties Union Foundation of Oregon put pressure on the Chamber of Commerce ... 'Because assessing a higher fee for political entries discriminates on the basis of the content of the entrant's message and thereby burden free speech, it violates both the Free Speech Clause of the First Amendment to the United States Constitution and the Free Expression Clause of the Oregon Constitution,' [the ACLU Attorney's] letter stated."

"" Daily Tidings, July 14 "ACLU: Parade Not Fair"

You could have passed over the lead story in last Monday's Tidings without much thought. It might have the look of a small-bore technical issue, a solution in search of a problem that doesn't really exist here. At their core, our constitutional free speech guarantees aim to protect us from repression of political and social opinions. Ashland's not known for repressing opinions. So should we be concerned when the Chamber charges parade entries with political messages a higher fee than apolitical nonprofit entries? Or do some civic zealots just have too much time on their hands?

Questions like this often get hashed out in ongoing battles on the pages of this paper &

a certain Naked Lady comes to mind &

where different segments of the community whack away at one another for weeks on end. It's not always clear that the value of the discourse outweighs the wear and tear on the community.

That won't happen this time, because the Chamber of Commerce has done something a little unusual. Instead of taking this blunt public challenge to their rules as an insult, rearing up on hind legs to justify themselves and go after their critics, the Chamber seems to have taken a deep breath and asked themselves if this is a battle worth fighting. The article describes their decision to refund the extra fee they charged the complaining party, and to revise fees so that there's no extra premium to pay for political expression in future parades, even though they don't agree with the ACLU's legal reasoning.

Good for the Chamber. They may have recognized that some of our ugliest battles get touched off by adrenaline, the Oh, yeah? Well, we'll show them! reflex, which is (to quote NPR's Car Guys) "unencumbered by the thought process." Then comes a downward spiral, where the players get so fired up about winning the argument at any cost that they nearly forget what it's about. I've been there.

The Chamber short-circuited all of that by deciding they could accommodate their critics without losing face or compromising any important principle. At the same time they sounded unimpressed with the ACLU's fundamental point that they were violating the constitutional ban on discriminating among various kinds of speech based on content. They don't see themselves as tyrants, and they're not.

What's easy to miss here is the ACLU's role as a kind of early warning system. This organization guards a boundary that's critical to our political quality of life. The first step over a constitutional boundary is often harmless by itself. In this case, the extra $70 tagged onto the entry fee of marchers who choose to carry political messages won't quite rank with Darfur and Burma on Amnesty International's next Human Rights Report. But that first step is the easiest one to stop. A "harmless" episode of charging one kind of expression more than another makes it harder to defend the principle when the stakes are higher down the line &

which, judging from the ascendancy of most of history's dictatorships, is what tends to happen.

A little disclosure here: I'm not only a "card-carrying member of the ACLU" (and what a commentary it is on our times that that phrase became an insult) but recently joined the Board of its Oregon chapter. I appreciate how hard-nosed and insistent the ACLU can be while the stakes still seem small. What might sometimes look like making mountains out of molehills is often flattening molehills before they become mountains.

If you see the ACLU step into an issue or legal case, look carefully into what's going on before rolling your eyes. Chances are very good that if you strip the story of political rhetoric and excuses, you'll find an important right in some kind of peril. The ACLU rarely makes a lot of friends when it aggressively points out the danger. But we'd have a very different country if it hadn't been around all these years to challenge and sometimes annoy us. And I don't think we'd like the difference.

Let me give this column's last word to Wes Brain, the Ashland activist whose complaint after the Fourth triggered this whole story. "You can't be charged a different amount for what your content says," Brain told the Tidings. "But more than that, it's about our rights. I'd like people to educate themselves about the Bill of Rights and fight for them. They don't just sit on a shelf, they have to be exercised."

Simply true.

is the author of "As If We Were Grownups," "Forest Blood" and the new novel "Unafraid" (with excerpts at )

Share This Story