Tag: First Amendment

President Obama’s Speech Czar

President Obama’s Secretary of Health and Human Services Kathleen Sebelius is still threatening to bankrupt insurance companies who tell their customers that ObamaCare’s mandates will increase premiums by more than 2 percent, even though her department’s projections show that, starting this week, just one of the law’s new mandates will increase some premiums by nearly 7 percent.

In a CBS News story last week, Sebelius tried to defend those indefensible threats:

But don’t the insurance companies have a right to make their own analyses and claims to their customers?

“Absolutely, they have a right to communicate with their customers,” replied HHS Secretary Kathleen Sebelius. “We just want to make sure that communication is as accurate as possible.”

The government can and should police fraud – but that’s not what Sebelius is doing.  She is suppressing legitimate differences of opinion in the pursuit of political gain.

What if the government had said, “Absolutely, CBS News has a right to communicate with its customers – we just want to make sure that communication is as accurate as possible”?  Should the government be able to put CBS News out of business if it decides those communications are not as accurate as possible? How about the National Rifle Association?  Should the next Republican administration be able to put the Center for American Progress, the SEIU, or The New York Times out of business if it decides their communications are not as accurate as possible?

You don’t have to oppose ObamaCare to see the danger here.

Regulator, Leave Those Kids Alone

“These kids today and their violent [blank]….” This refrain has been around for as long as there have been kids – and elders to shake their fists at them. In the 19th century, dime novels and “penny dreadfuls” were blamed for social ills and juvenile delinquency. In the 1950s, for example, psychologist Fredric Wertham’s attack on comic books – in his bluntly titled book Seduction of the Innocent – so ignited the national ire that Congress held hearings on the cartoon menace. In response, the comic book industry voluntarily adopted a ratings system. Similarly, backlash against the movie industry and the music industry (e.g., Tipper Gore’s attack on gangsta rap) caused those respective industries to also adopt voluntary ratings systems.

The videogame industry also adopted an effective and responsive ratings system after congressional hearings in the early ’90s. Thinking this ratings system ineffective, however, California passed a violent videogame law, which prohibits minors from purchasing games that are deemed “deviant,” “patently offensive,” and lacking in artistic or literary merit. The gaming industry challenged the California law and the Ninth Circuit struck it down on First Amendment grounds.

California now seeks to overturn the lower court’s ruling by arguing that violent videogames deserve an exemption from First Amendment protection. Cato’s brief supports the videogame manufacturers and highlights not only the oft-repeated and oft-overblown stories of the “seduction of the innocent,” but the less-repeated stories of the effectiveness and preferability of industry self-regulation.

We show that not only does self-regulation avoid touchy First Amendment issues but that entertainment industries take self-regulation very seriously. Moreover, evidence from the Federal Trade Commission shows that the existing videogame ratings system works more effectively than any other regulatory method. Adding a level of governmental control, even if were constitutional, would be counterproductive.

The case of Schwarzenegger v. Entertainment Merchants Association will be argued November 2 (coincidentally election day).

Clean Elections Act Dirties the First Amendment

In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns.

Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial in a lawsuit challenging the law showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. In elections, where there is no effective speech without spending money, the matching funds provision of the Clean Elections Act diminishes the quality and quantity of political speech.

In 2008, the U.S. Supreme Court in Davis v. FEC struck down a similar provision in the federal McCain-Feingold law in which individually wealthy candidates were penalized for spending their own money by triggering increased contribution limits for their opponents. Even this modest opportunity for opponents to raise more money was found to be an unconstitutional burden on political speech.

Cato has thus filed a brief supporting a request that the Supreme Court review the lower court’s decision upholding Arizona’s Clean Elections Act.  We highlight Davis (in which Cato also filed a brief) and numerous other cases that point to a clear conclusion: if the mere possibility of your opponent getting more money is unconstitutional, then the guarantee that your opponent will get more money (Arizona’s act automatically disburses matching funds) is even more so. Allowing the government to abridge political speech in this fashion not only diminishes the quality of our political debate, but it ignores the fundamental principle upon which the First Amendment is premised: that the government cannot be trusted to regulate political speech for the public benefit. 

The Supreme Court will decide later this fall whether to review this case, McComish v. Bennett.

Consistency

Justice Breyer appeared on Good Morning America today, telling George Stephanopoulous that burning the Koran may not be protected by the First Amendment. As Breyer puts it, this may be akin to “shouting fire in a crowded theater,” since internet-driven publicity could bring retaliatory violence here or abroad.

Let me get this straight – burning a Koran isn’t protected the same way that burning a Bible or the American flag is, or a neo-Nazi march through a neighborhood of Holocaust survivors. The “crowded theater” is now global, and all someone has to do to diminish the First Amendment rights of all Americans is threaten to use violence if an offending word is uttered.

That’s not a consistent interpretation of the First Amendment, but Breyer’s record of consistency isn’t very good when constitutional rights may put lives at risk.

What If Cuccinelli Had Sent that Letter to Planned Parenthood?

The following analogy may help to explain why everyone should be troubled by HHS Secretary Kathleen Sebelius’ efforts to intimidate insurance companies who say unflattering things about ObamaCare.

Last month, Virginia Attorney General Ken Cuccinelli (R), issued an opinion that state regulatory boards already have the authority to impose additional regulations on abortion clinics.  Critics pounced, claiming that the measure could shut down 17 of the state’s 21 clinics. What if Cuccinelli responded with a letter threatening to investigate clinics that “misinform” the public about the costs of such regulation?

Secretary Sebelius Slips on the Brass Knuckles

This week saw more bad news for ObamaCare.  So the Obama administration slipped on the brass knuckles.

Last week brought news that health insurance premiums grew by a smaller increment in 2010 than in any of the past 10 years.  On Tuesday, The Wall Street Journal reported that ObamaCare appears to be turning that around:

Health insurers say they plan to raise premiums for some Americans as a direct result of the health overhaul in coming weeks, complicating Democrats’ efforts to trumpet their signature achievement before the midterm elections. Aetna Inc., some BlueCross BlueShield plans and other smaller carriers have asked for premium increases of between 1% and 9% to pay for extra benefits required under the law, according to filings with state regulators.

The Journal even included this handy chart, where the blue bars show how much ObamaCare will add to the cost of certain health plans in 2011.

Source: Wall Street Journal

In addition, a Mercer survey of employers found that 79 percent expect they will lose their “grandfathered” status by 2014, and therefore will become subject to many more of ObamaCare’s new mandates—a much higher figure than the administration had estimated.  Employers expect those additional mandates will increase premiums by 2.3 percent, on average, and boost the overall growth of premiums from 3.6 percent to 5.9 percent in 2011.

In response to the health insurers’ claims, HHS Secretary Kathleen Sebelius fired off a letter to the head of the health insurance lobby.  The news release on the HHS website makes her purpose plain:

U.S. Department of Health and Human Services Secretary Kathleen Sebelius wrote America’s Health Insurance Plans (AHIP), the national association of health insurers, calling on their members to stop using scare tactics and misinformation to falsely blame premium increases for 2011 on the patient protections in the Affordable Care Act.  Sebelius noted that the consumer protections and out-of-pocket savings provided for in the Affordable Care Act should result in a minimal impact on premiums for most Americans.  Further, she reminded health plans that states have new resources under the Affordable Care Act to crack down on unjustified premium increases.

In the letter, Sebelius cites HHS’s internal analyses and those of Mercer and other groups to support her claim that ObamaCare’s impact on premiums “will be minimal” — somewhere in the range of 1 percent to 2.3 percent, on average.  Sebelius tells insurers that she will show “zero tolerance” for insurers who “falsely” blame premium increases on ObamaCare, and promises aggressive action against those who do:


[We] will require state or federal review of all potentially unreasonable rate increases filed by health insurers… We will also keep track of insurers with a record of unjustified rate increases: those plans may be excluded from health insurance Exchanges in 2014.  Simply stated, we will not stand idly by as insurers blame their premium hikes and increased profits on the requirement that they provide consumers with basic protections.

First of all, how does Sebelius know these claims are false?  The analyses she cites project a 1-2 percent average increase in premiums. As I blogged back in June, her own agency estimated that just a couple of ObamaCare’s mandates will increase premiums for some health plans by 7 percent or more.  Is 9 percent really that far off?  Didn’t her own agency write that a “paucity of data” means there is “tremendous,” “substantial,” and “considerable” uncertainty about the reliability of their own estimates?

More important: so what if insurers believe that ObamaCare is increasing premiums by 9 percent, while Sebelius believes it only increased premiums 7 percent?  What business does she have threatening insurers because they disagree with her in public?  ObamaCare gave the HHS secretary considerable new powers.  Is one of those the power to regulate what insurers say about ObamaCare?  Excluding insurers from ObamaCare’s exchanges is not a minor threat.  Medicare’s chief actuary predicts that in the future, “essentially all” Americans will get their health insurance through those exchanges.  Does anyone seriously doubt that Sebelius’ threat is about protecting politicians rather than consumers?

When President Obama promised that he would sell ObamaCare to the American people, most people probably assumed he meant with his rhetorical skills.  But National Journal reports, “Remember how the administration was going ‘to sell’ the controversial legislation once it passed? Obama is not doing much pitching.”  He can’t even sell Jon Stewart on ObamaCare.  The administration seems to have settled on a different sales strategy: intimidate those who say unflattering things about ObamaCare.

Earlier this year, I predicted that ObamaCare would get uglier and more corrupt over time.  I didn’t know I’d be proven right so quickly.

Internet Censorship

On August 24th, the Attorneys General of 17 states sent a letter [PDF] to the founder and CEO of the Craigslist online platform, to “request” that they take down the “Adult Services” section of the site. The link to that section of the site now stands with a “CENSORED” label over the place where the link stood.

On the TechLiberationFront blog, Ryan Radia has a good write-up, including the legal protections Craigslist enjoys under federal law as a provider of an “interactive computer service.” The AGs undoubtedly know that could not directly shut down Craigslist. They wouldn’t have a legal leg to stand on if they attacked the site for the behavior of its users. But they also know that publically badgering Craigslist can win them political points and cut into the site’s image, profits, and ultimately, perhaps, viability. Several Attorneys General have doggedly asked Craigslist to patrol the behavior of its millions of users, never satisfied with the company’s efforts.

The turning point seems to have been a CNN “ambush” interview with Craigslist founder Craig Newmark in which reporter Amber Lyon sprung a terrific gotcha line, calling Craigslist “the Wal-Mart of online sex trafficking.” It’s a sound-bite with just enough truth: In a community of millions of people, there may be some such trafficking.

Newmark is an unusual character in any world, but especially in media and politics. He is meek, soft-spoken, and utterly guileless. A part of West-Coast tech’s recent interest in East-Coast government and politics, Newmark sought me ought a few months ago for a wide-ranging, ambling, and—for those reasons—charming chat.

Newmark was utterly caught off guard by the interview with the CNN reporter. The tape rolls through painfully awkward moments when Newmark remains simply silent or paces around, making him look stupid, mendacious, or both. (His comment on the interview is here, to which Lyon responds in the video linked above at “ambush.”)

The AGs smelled blood in the water. Their letter pounces on Craigslist and Craig Newmark’s inartful performance.

So the next step is the “CENSORED” block on Craigslist’s “Adult Services” section. Perhaps it’s meant to engender support for First Amendment rights, and to an extent it has. Early returns show support for Craigslist. But it may also create an expectation that large Web sites on which a tiny minority of people abuse speech rights to plan and execute crime may lose their speech protections themselves.

In case it needs pointing out, shutting down a Web site, or the portion of a Web site, on which people plan crime will only move crime to other places on the Internet. The cost to free speech in the AGs’ badgering of Craigslist vastly outweighs the infinitesimal crime-prevention benefit.

The Attorneys General sacrificing speech this way are: Richard Blumenthal (D) of Connecticut (a candidate for U.S. Senate), Dustin McDaniel (D) of Arkansas, Lawrence G. Wasden (R) of Idaho, Lisa Madigan (D) of Illinois, Tom Miller (D) of Iowa, Steve Six (D) of Kansas, Douglas F. Gansler (D) of Maryland, Mike Cox (R) of Michigan, Jim Hood (D) of Mississippi, Chris Koster (D) of Missouri, Michael A. Delaney (D) of New Hampshire, Richard Cordray (D) of Ohio, Patrick C. Lynch (D) of Rhode Island, Henry McMaster (R) of South Carolina, Robert E. Cooper, Jr. (D) of Tennessee, Greg Abbott (R) of Texas, and Kenneth T. Cuccinelli, II (R) of Virginia.