Tag: First Amendment

It’s “Declaration of Internet Freedom” Day!

… or at least I should have said so back on March 4th.

That was the anniversary of the day that Congress proposed to append a Bill of Rights to our Constitution. With a lovely preamble that went a little somethin’ like this:

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

The Bill of Rights contains gems like “Congress shall make no law … abridging the freedom of speech, or of the press,” (Amendment 1) and, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (Amendment 4).

I think this original Declaration of Internet Freedom is the bee’s knees. Yes, it’s taking some work to apply its strictures to the modern communications environment, but that’s a much more contained problem than starting over.

Starting over. That’s what a collection of really lovely groups–some highly pro-regulation, others handmaidens of government growth–are doing. They’ve come up with a “Declaration of Internet Freedom” whose principal virtue is a pretty cool graphic. The actual “principles” in it are so weasel-y that I wouldn’t trust ‘em as far as I could throw ‘em.

When you’re done pondering how one could “throw” a principle, consider an alternative to the “mainstream” declaration put out by our friends at TechFreedom. Their Declaration of Internet Freedom has a bunch of principles like “Humility” and “Rule of Law.”

Their thing on “Free Expression” cites the First Amendment. Remember that one? That’s the “Congress shall make no law” one. So that’s pretty good.

But I’m really hoping that nobody living today gets to define the basic principles by which the Internet is ruled. We’ve got that. It’s a neato collection of negative rights, preventing the government from interfering with society’s development, whether that development occurs online or off.

So happy Declaration of Internet Freedom day! I’ll be celebrating the real one.

In case you’ve gotten confused in all the jostling around, the real one is the Bill of Rights.

Obamacare’s Constitutional Defects, First Amendment Division

On May 11, the Department of Health & Human Services finalized rules requiring insurers to tell any of their customers who get premium rebates this summer that the windfall comes courtesy of Obamacare.  Here’s the official required language:  “This letter is to inform you that you will receive a rebate of a portion of your health insurance premiums. This rebate is required by the Affordable Care Act-the health reform law.”

Given that Obamacare is already increasing costs for most patients – insured or otherwise – I wonder who the lucky few will be who get a chance to read the government’s prose.  Moreover, it’s a bit rich to create this “language mandate” when HHS Secretary Kathleen Sebelius had earlier advised insurance companies not to speak against Obamacare’s cost-increasing features.  As the Competitive Enterprise Institute’s Hans Bader put it:

Obama’s HHS secretary sought to gag insurers that disclosed how Obamacare’s mandates are increasing the cost of health insurance, even though such speech is clearly protected by the First Amendment, telling them if they did so, they could be excluded from health insurance exchanges. Prior to that, the Obama administration attempted to gag insurers from disclosing how Obamacare harms Medicare Advantage participants, drawing criticism from First Amendment experts like UCLA law professor Eugene Volokh, the author of two First Amendment textbooks.

Beyond the unseemliness of it all, however, there’s also a constitutional problem:  The government can’t require people to make politicized statements, whether that’s “Live Free or Die” on license plate or the labeling of consumer products where the labels aren’t justified on fraud-prevention or public health grounds.  See some other examples and legal analysis in Bader’s post at CEI’s blog.

The bottom line is that just like the First Amendment stops the government from censoring speech, it stops it from forcing speech.  And just like there’s no “health care is unique” exception to the Commerce Clause, there isn’t one to the First Amendment.

Stop Using Slippery-Slope Arguments? Where Would that End?

Richard Thaler writes in the New York Times:

Justice Scalia is arguing that if the court lets Congress create a mandate to buy health insurance, nothing could stop Congress from passing laws requiring everyone to buy broccoli and to join a gym…Can anyone imagine Congress passing a broccoli mandate law, much less the court allowing it to take effect?

Yes annnnd…yes. Next question.

Surely, the justices have the conceptual resources to draw a distinction between the health care market and the market for broccoli. And even if they don’t, then all the briefs, the zillions of blog posts and a generation’s worth of economic literature can help them.

If drawing a constitutionally meaningful distinction between the markets for health insurance and broccoli is child’s play for Thaler, he should school all the brief- and blog-post-writers who so far have failed. That would have been a more productive use of his thousand words than his build-up to this thesis:

If you are opposed to a policy, state your case based on the merits — not on the imagined risk of what else might happen down the road. The path of that road is so unpredictable that it may even produce a U-turn.

Good grief. Slippery-slope arguments are about principles. As in, “If you concede this principle because you don’t mind the result here, you will no longer have it to protect you against that bad result there.” Thaler’s thesis would lead, for example, to all manner of civil-liberties violations by the state because there simply isn’t enough political support to protect all the civil liberties of various minorities. But Thaler doesn’t want us to think about things like consequences or the future.

The potential for U-turns makes no more sense as an argument against invoking slippery slopes principles, because principled arguments can help generate the U-turn that opponents of, say, ObamaCare want to see.

I take silly arguments like this to be evidence that ObamaCare supporters are in complete panic mode.

‘People’s Rights Amendment’ Would Knock Out People’s Rights

This blogpost was co-authored by Cato legal associate Kathleen Hunker.

Any prizefighter worth betting on knows that the worst thing you can do in a tough match is succumb to frustration.  House Democrats should heed that wisdom.  Frustrated by the Constitution’s interference in their efforts to muzzle certain kinds of political speech, Rep. Jim McGovern (D-MA), House Minority Leader Nancy Pelosi (D-CA), and 27 other congressmen have proposed a constitutional amendment that would overturn the Supreme Court’s holding in Citizens United.

Unfortunately, in their haste to deliver a blow against evil corporations, these lawmakers have exposed the Constitution’s flank in a way that would lead to debilitating blows against individual civil rights were this measure ever adopted.

The proposed change, absurdly titled the People’s Rights Amendment, asserts that the Constitution protects only the rights of “natural persons” and that Congress retains the ability to subject “all corporate entities” to any regulation or restriction Congress deems “reasonable.”  Its supporters contend that the Amendment is necessary to reduce the role of money in politics and ensure that elections represent the voice of the people.  As several commentators have already observed, however, the amendment does far more than subject corporations to new campaign finance regulations.

Although the People’s Rights Amendment says that it shall not be construed “to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people,” it radically contracts those and other rights entrenched in America’s political tradition.

George Will’s latest column explains this very point. In addition to denying “natural persons” the right to associate and speak in concert,

McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights.  So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities.  McGovern’s amendment would strip them of all constitutional rights.

Instead of removing corporate money – which goes much more to lobbyists (petitioning for redress of grievances) than electioneering anyway – the amendment grants Congress the power to strip think tanks, advocacy groups, charities, newspapers, political parties, and even a candidate’s campaign of the right to criticize and oppose the government.  Any political speech more complex than standing on a park bench at an Occupy rally becomes subject to the whims of federal bureaucrats.  Even books don’t escape the amendment’s long reach, as the government lawyer admitted would be the case under the pre-Citizens United law that the amendment hopes to reinstate.

McGovern and Pelosi haven’t answered how the People’s Rights Amendment ensures that elections represent the voice of the people when it takes away the very venues on which the people stand to have their voice heard.

George Will makes a second foreboding observation.  He notes that, by stripping corporations of all constitutional protections, the amendment would empower the government to do much more than proscribe speech:

[G]overnment, unleashed by McGovern’s amendment, could regulate religious practices at most houses of worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern’s scythe would mow down the Fourth and Fifth Amendments, as well as the First.

For more on these dangers, see here and here.  Of course corporations aren’t human beings, but that brilliant insight is legally irrelevant.  Corporations are formed by individuals as a means of exercising their constitutionally protected rights, and those individuals do not lose the protection of the Constitution by choosing to exercise their right to associate and pool their resources.

Thus, while a corporation does not enjoy the full breadth of constitutional rights (i.e., sexual privacy), it warrants whatever degree of protection is necessary for its members to exist as free and rational beings.  These rights certainly extend to the ability to publicize and support political initiatives.

Before the supporters of People’s Rights Amendment make that massive lunge against what they view as constitutional frustrations, they should take a step back and reassess whether the satisfaction they derive from sticking it to corporations is worth the potential collapse of our political system’s commitment to a free society.

Democracy EXPOSED!

I found a release put out by the American Legislative Exchange Council today a little too meek. So let’s talk about the debate around ALEC, a group I’ve been involved with as a volunteer advisor since before I joined Cato. (The Communications and Technology Task Force used to be called “Telecommunications and Information Technology,” but that didn’t work well in our acronym-happy world.) ALEC is under seige because of alleged ties between its backing of “Stand Your Ground” laws and the Trayvon Martin case, in which a young black man was killed by a neighborhood watch officer of…uncertain ethnic background.

Tim Lynch and Walter Olson have made us aware that the Martin tragedy does not actually implicate Stand Your Ground. Tim has also made us aware of a case in which Stand Your Ground is implicated, that of an elderly Detroit man who shot and killed an 18-year-old entering his home armed with a handgun at 1:30 a.m.

There’s no question, as Tim said, that Zimmerman’s taking of Trayvon Martin’s life warrants intense scrutiny. (The very latest: Prosecutors intend to charge Zimmerman.) While that plays out, Cato will address self-defense law and gun rights at an event entitled “’Stand Your Ground’ Laws: Self-Defense or License to Kill?” on April 23rd, which I encourage you to attend or watch.

But ALEC is an odd target for scrutiny of the quality it’s getting. ALEC describes itself as dedicated to “the Jeffersonian principles of free markets, limited government, federalism, and individual liberty.” Toward this end it “enlist[s] state legislators from all parties and members of the private sector who share ALEC’s mission.”

Anti-ALEC site ALECExposed.org characterizes things differently:

Through the corporate-funded American Legislative Exchange Council, global corporations and state politicians vote behind closed doors to try to rewrite state laws that govern your rights. These so-called “model bills” reach into almost every area of American life and often directly benefit huge corporations. In ALEC’s own words, corporations have “a VOICE and a VOTE” on specific changes to the law that are then proposed in your state. DO YOU?

It’s very exciting stuff—the idea that people would organize themselves to affect the public policies of their states and nation.

The latter characterization of ALEC doesn’t square very well with the Trayvon Martin case, though. The ALECExposed site itself emphasizes that the National Rifle Association works through ALEC to promote and defend Stand Your Ground and other gun rights and self-defense laws. The NRA is a corporation, yes, but it’s an issue advocacy organization. It’s no more the huge or global corporation ALECExposed aims at than the Center for Media and Democracy, hosts of ALECExposed.

The point is made, though: Corporations are trying to influence our public policy! And they are working closely with state legislators to do it!

The horror.

I’ve looked, and there is no NCSLExposed.org. (Domain available!) The National Conference of State Legislatures is a similar group to ALEC: larger, center-left, and government-funded. In 2010, $10 million of NCSL’s $16.8 million general fund came from state legislatures. Most of the remainder comes from grants from federal agencies such as the federal Departments of Health and Human Services, Education, Energy, and Transportation, and from private foundations.

Here, let me re-phrase that:

Through the government-funded National Conference of State Legislatures, governments and foundations try to rewrite state laws that govern your rights. Their efforts reach into almost every area of American life and often directly benefit huge governments and corporations. In NCSL’s own words, it is an advocate for the interests of state governments before Congress and federal agencies. IS IT AN ADVOCATE FOR YOU?

I’ve done my best to make NCSL sound malign, though it’s not. Neither is ALEC malign. I agree with some of what both organizations do, and I disagree with some of what both organizations do.

And I suppose that reveals the trouble with the trouble with ALEC. It is a highly selective attack on one organization that has the peculiar quality of advancing the aims of the business sector, of libertarians, and conservatives. A larger organization that advances the aims of the government sector enjoys no attention in current debate. The hundreds of other organizations that advance the aims of various other sectors—unions, for example—not a peep. Even though RIGHT NOW unions are trying to influence public policy in ways they believe will help workers!

The First Amendment’s protections for freedom of speech, association, and petition of the government have in their background a vision for how our political society should work. Anybody should get to say anything they want, and anybody should organize however they want to advocate for the governing policies they want.

The opponents of ALEC’s positions should advocate the substantive polices they prefer, and they are certainly within their rights to do it in whatever way they prefer. Politics never runs out of ways to disappoint, though, and as a person who tries to deal with the substance of issues, working across partisan and ideological lines, I am amazed at and disappointed by the incoherence of the attack on ALEC.

And I am also disturbed by its anti-democratic and anti-speech quality. The implication I take from the attack on ALEC is that some groups, representing some interests, should not be able to participate in making our nation’s and states’ public policies.

There is one ray of light in all this: NCSL is featuring its concerns with REAL ID, the national ID law, on its homepage. And ALECExposed has a posted a buffoonishly marked-up version of ALEC’s 2007 resolution against REAL ID. NCSL would evidently back the implementation of a national ID if Congress were to fund it. Given its principles, ALEC would not.

Even this debate may help inform the public.

British Student Jailed over a Tweet

I had to read this story twice and I still cannot quite bring myself to believe it. Apparently, a British judge sentenced a 21 year old biology student to 56 days in jail for making fun of a tragic near-death experience of a soccer player. As Fabrice Muamba, a Bolton Wanderers midfielder, collapsed in mid-play due to a heart-attack, Liam Stacey tweeted “LOL (laugh out loud). **** Muamba. He’s dead!!!’”

Disgusting and childish? Yes! But did the tweet warrant a prison sentence and branding of Stacey, who was drunk at the time of his tweeting, as an inciter of “racial hatred” (Muamba is black, while Stacey is white)? What’s next, flogging for making fun of fat people? Thank goodness that the First Amendment of the U.S. Constitution protects free speech—even thoroughly tasteless and deeply offensive speech. Otherwise there is no telling where our political elite would lead us.

There is, of course, a larger point here. Britain, like some other European countries, suffers from deep fissures along racial, religious, national, and class lines. The elite has attempted to fix those problems by increasingly regulating speech and criminalizing behavior at an astonishing rate of one new offense a day between 1997 and 2010. (The new Conservative/Liberal Democratic coalition government has promised to do things differently, but no major repeal of law and regulation has yet taken place.) How can a society address problems that it cannot talk about? How can it remain free if so much is forbidden?