Tag: First Amendment

Two Thoughts on Susan G. Komen & Planned Parenthood

I’m sure that many of you are following the controversy over the Susan G. Komen for the Cure Foundation’s decision to suspend its partnership with and funding of Planned Parenthood. Two thoughts on this:

First, this controversy provides a delightful contrast to the Obama administration’s decision to force all Americans to purchase contraceptives and subsidize abortions.

The Susan G. Komen Foundation chose to stop providing grants to Planned Parenthood. Lots of people didn’t like (and/or don’t believe) Komen’s reasons. Some declared they would stop giving to Komen. Others approved of Komen’s decision and started giving to Komen. Many declared they would start donating to Planned Parenthood to show their disapproval of Komen’s decision.

Notice what didn’t happen. Nobody forced anybody to do anything that violated their conscience. People who don’t like Planned Parenthood’s mission can now support Komen without any misgivings. People who like Planned Parenthood’s mission can still support it, and can support other organizations that fight breast cancer. The whole episode may end up being a boon for both sides, if total contributions to the two organizations are any measure. Such are the blessings of liberty.

Contrast that to Obamacare, which forces people who don’t like Planned Parenthood’s mission to support it.

Second, there seems to be a bottomless well of delusion from which supporters of Planned Parenthood draw the idea that this decision shows Komen has injected politics into its grant-making.

Assume for the sake of argument that the Susan G. Komen Foundation has been hijacked by radical abortion opponents who forced the decision to stop funding Planned Parenthood. Even if that is true, that decision did not inject politics into a process previously devoid of politics.

Millions of Americans believe that Planned Parenthood routinely kills small, helpless human beings. Believe it or not, they have a problem with that. When Komen gives money to Planned Parenthood, it no doubt angers those Americans (and makes them less likely to contribute). When Komen decided that the good it would accomplish by funding Planned Parenthood’s provision of breast exams outweighed the concerns (and reaction) of those millions of Americans, Komen was making a political judgment.

Perhaps Planned Parenthood’s supporters didn’t notice the politics that was always there, since Komen had been making the same political judgment they themselves make. But if Planned Parenthood’s supporters are angry now, it’s not because Komen injected politics into its grant-making. It’s because Komen made a different political judgment and Planned Parenthood lost, for now anyway. (Then again, if donations to Planned Parenthood are the measure, the group may be winning by losing.)

I must confess to a little bit of Schadenfreude here, as those who are complaining about Komen’s decision to defund Planned Parenthood are largely the same folks who applaud President Obama’s decision to force everyone to fund it (and, without a trace of irony, describe themselves as “pro-choice”). I predict that when a future president reverses Obama’s decision, supporters of Obama’s policy will likewise delude themselves that the future president has “injected” politics into the dispute.

UPDATE: The Susan G. Komen Foundation has again adjusted its grant-making policies, and Planned Parenthood will once again be eligible for funding. A reporter asks me: “So what does it mean now that Komen’s reversed itself?” My reply:

It does not mean that politics has been banished from Komen’s decisions. It just means that Komen has again made a political decision that more closely reflects the values of Planned Parenthood’s supporters than its detractors. But that is how we should settle the question of who funds Planned Parenthood: with vigorous debate and by allowing individuals to follow their conscience. When Obamacare ‘settles’ the question by forcing taxpayers to fund Planned Parenthood, it violates everyone’s freedom and dignity.

Contraceptives Mandate Brings ObamaCare’s Coercive Power into Sharper Focus

President Obama is catching some well-earned blowback for his decision to force religious institutions “to pay for health insurance that covers sterilization, contraceptives and abortifacients.” You see, ObamaCare penalizes individuals (employers) who don’t purchase (offer) a certain minimum package of health insurance coverage. The Obama administration is demanding that coverage must include the aforementioned reproductive care services. The exception for religious institutions that object to such coverage is so narrow that, as one wag put it, not even Jesus would qualify. HHS Secretary Kathleen Sebelius reassures us, “I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services.” Ummm, Madam Secretary…the Constitution only mentions one of those things. The Catholic church is hopping mad. Even the reliably left-wing E.J. Dionne is angry, writing that the President “utterly botched” the issue “not once but twice” and “threw his progressive Catholic allies under the bus.”

As I wrote over and over as Congress debated ObamaCare, anger and division are inevitable consequences of this law. I recently debated the merits of ObamaCare’s individual mandate on the pages of the Wall Street Journal. Here’s a paragraph that got cut from my essay:

We can be certain…that the mandate will divide the nation. An individual mandate guarantees that the government—not you—will decide what medical services you will purchase, including contraceptives, fertility services that result in the destruction of human embryos, or elective abortions. The same apparatus that can force Americans to subsidize elective abortions can also be used to ban private abortion coverage once the other team wins. The rancor will only grow.

Or as I put it in 2009,

Either the government will force taxpayers to fund abortions, or the restrictions necessary to prevent taxpayer funding will reduce access to abortion coverage. There is no middle ground. Somebody has to lose. Welcome to government-run health care.

The same is true for contraception. The rancor will grow until we repeal this law.

ObamaCare highlights a choice that religious organizations – such as the United States Conference of Catholic Bishops, where my grandfather served as counsel – have to make. Either they stop casting their lots with Caesar and join the fight to repeal government health care mandates and subsidies, or they forfeit any right to complain when Caesar turns on them. Matthew 26:52.

The First Amendment Protects Students’ Rights to Speak on Religious Subjects

If the First Amendment means anything, then school officials cannot prohibit students from handing out gifts with Christmas messages due to the religious content of those messages. Nonetheless, the Fifth Circuit held en banc that student speech rights are not “clearly established,” and that, therefore, two Plano, Texas officials could invoke qualified immunity to shield themselves from liability for doing so.

Yesterday Cato filed an amicus brief supporting the students’ request that the Supreme Court hear their case—our third brief in this long-running saga. We argue that educators have fair warning that viewpoint-based discrimination against student speech violates the First Amendment and thus may not invoke qualified immunity.

While the Fifth Circuit held that a constitutional right must have previously been defined with a “high degree of particularity” in a case that is “specific[ally] and factually analogous” to be clearly established, the Supreme Court has repeatedly said that neither “fundamentally similar” nor “materially similar” cases are required and that general statements of law can give fair warning. Indeed, if the Fifth Circuit’s qualified-immunity standard is upheld, it will be so difficult to establish fair warning for unconstitutional actions that qualified immunity will cease to be “qualified.”

Student speech rights were clearly established by the foundational student-rights case of Tinker v. Des Moines School District (1969), wherein the Court held that student speech cannot be suppressed unless the speech will “materially and substantially disrupt the work and discipline of the school,” subject to limited exceptions. Such exceptions include lewd or vulgar speech, or speech that may reasonably be viewed as advocating unlawful drug use. Certainly the student speech at issue here, which included Christmas greetings written on candy canes, and pencils and other small gifts with messages like “Jesus loves me, this I know, for the Bible tells me so,” does not fall under those exceptions.

We further argue that the same standard for determining whether a law is clearly established should determine whether a court can look to nonbinding precedent; if Supreme Court and relevant-circuit precedent is on point, courts should not look to authority from other jurisdictions. These standards maintain the proper balance between providing officials with fair notice of behavior that could result in civil liability and ensuring that individuals have legal recourse when their rights are violated.

The Supreme Court will decide later this winter whether to take the case, Morgan v. Swanson, and hear argument in the fall.

Thanks to Cato legal associate Anastasia Killian for her help with this post, and with our brief.

The Internet Is Not .gov’s to Regulate

Imagine that Congress passed a law setting up a procedure that could require ordinary citizens like you to remove telephone numbers from your phone book or from the “contacts” list in your phone. What about a policy that cut off the phone lines to an entire building because some of its tenants used the phone to plot thefts or fraud? Would it be okay with you if the user of the numbers coming out of your phone records or the tenants of the cut-off building had been adjudged “rogue” users of the phone?

Cutting off phone lines is the closest familiar parallel to what Congress is considering in two bills nicknamed “SOPA” and “PIPA”—the “Stop Online Piracy Act” and the “PROTECT IP Act.”

Julian Sanchez has vigorously argued several points about these bills. Here, I’ll try to describe what they try to do to the Internet.

Simplifying, every computer and server has an IP (or “Internet Protocol”) address, which is a set of numbers that uniquely identify its location on the Internet. The IP address for the server hosting Cato’s Spanish language site, elcato.org, for example, is 67.192.234.234.

Now, these numbers are hard to remember, so there is a system that translates IP addresses into something more familiar. That’s the domain name system, or “DNS.” The domain name system takes the memorable name that you type into the address bar of your computer, such as elcato.org, and it looks up the IP address so you can be forwarded along to the IP address of your choice.

One of the major ideas behind SOPA and PIPA is to cut Internet sites that violate copyright out of the domain name system. No longer could typing “elcato.org” get you to the Web site you wanted to visit. Much of the debate has been about the legal process for determining whether to strike out a domain name.

But preventing a domain name lookup doesn’t take the site off the Internet. It just makes it slightly harder to access. You can prove it to yourself right now by copying “67.192.234.234” (without the quotes) and plugging it into your address bar. (The Internet is complicated. Some of you might be directed to other Cato sites.) Then come back here and read on, por favor!

The government would require law-abiding citizens to “black out” phone numbers—or Internet service providers to do the same with domain names—for this little effect on wrongdoing? It doesn’t make sense. The practical burdens on the law-abiding Internet service provider would be large. “Blacking out” an entire building—just like a Web site—would cut off the lawful communications right along with the unlawful ones. It’s through-the-looking-glass information control, with enormous potential to obstruct entirely lawful communications and impinge on First Amendment rights.

Which is why many Web sites today are “blacking out” in protest. In various ways, sites like Craigslist.org, Wikipedia, and many others are signaling to their visitors that Congress is threatening the core functioning of the Internet with bills like SOPA and PIPA. And threatening all of our freedom to communicate.

The Internet is not the government’s to regulate. It is an agreement on a set of protocols—a language that computers use to talk to one another. That language is the envelope in which our communications—our First-Amendment-protected speech—travels in hundreds of different forms.

The Internet community is growing in power. (Let’s not be triumphal—government authorities will use every wile to maintain control.) Hopefully the people who get engaged to fight SOPA and PIPA will recognize the many ways that the government regulates and limits information flows through technical means. The federal government exercises tight control over electromagnetic spectrum, for example, and it claims authority to impose public-utility-style regulation of Internet service provision in the name of “net neutrality.”

Under the better view—the view of freedom behind opposition to SOPA and PIPA—these things are not the government’s to regulate.

Against Forced Unionization of Independent Workers

Over the past decade, more than a dozen states have forced independent contractors who are paid through Medicaid to join public-sector unions.In 2003, Illinois unionized home healthcare workers and imbued the Service Employees International Union with the right to collect compulsory fees from the workers’ paychecks. Democracy is thus being turned on its head: the elected representatives for the people of Illinois have chosen a sub-representative for some of the people and given that sub-representative a taxing power.

In so doing, they have severely impaired home healthcare workers’ First Amendment right of association and the right to petition the government for a redress of grievances. Without limits on government’s ability to forcibly unionize people who indirectly receive government-funded compensation (an increasingly large group), more and more citizens will have to interact with their representatives through a government-designated intermediary (a union); our democracy will become even more dominated by special interests than it is now.

Cato, joined by the National Federation of Independent Business and the Mackinac Center, filed a brief urging the Supreme Court to address this issue and vindicate the First Amendment freedoms upon which a thriving democracy depends. We argue that the forcible unionization of home healthcare workers serves none of the compelling purposes for public-sector unionization that have been articulated by the Supreme Court.

Because the Court has long recognized that unionization impinges certain constitutional rights, it has limited public-sector collective bargaining to those situations which advance the aims of promoting “labor peace” and eliminating “free riders.” Labor peace is promoted by limiting competing workplace interests from bargaining over the conditions of employment — for example, two unions at the same workplace representing different colleagues. Free riders are non-union employees who enjoy the benefits of union-achieved gains without paying into the union’s war chest. But neither aim is promoted by a system, such as Illinois’s, in which employees work in different locations and in which the customer — the disabled person paying the homecare worker through a Medicaid disbursal—still controls every crucial aspect of the employment relationship, including hiring and firing.

This last fact is most telling: the Illinois law only allows collective bargaining for higher wages and more generous benefits. That is, the law is only about speech — petitioning the government for higher wages and benefits — and does not address workplace conditions at all.

As more and more states push to unionize more workers who indirectly receive government money — campaigns that, in face o dwindling private-sector union membership, have been called “labor’s biggest victory in over sixty years” — it is vital that the Supreme Court articulate a limiting principle on this practice. Otherwise, more and more of us will be forced to interact with our representatives only through government-appointed bodies.

Published: So What If Corporations Aren’t People?

Six months ago, I wrote about a law review article I had just co-authored with former Cato legal associate Caitlyn McCarthy regarding corporate rights post-Citizens United.  Well, now it’s officially published, in The John Marshall Law Review.  Here’s the abstract:

Corporate participation in public discourse has long been a controversial issue, one that was reignited by the Supreme Court’s decision in Citizens United v. FEC, 130 S. Ct. 876 (2010). Much of the criticism of Citizens United stems from the claim that the Constitution does not protect corporations because they are not “real” people. While it’s true that corporations aren’t human beings, that truism is constitutionally irrelevant because corporations are formed by individuals as a means of exercising their constitutionally protected rights. When individuals pool their resources and speak under the legal fiction of a corporation, they do not lose their rights. It cannot be any other way; in a world where corporations are not entitled to constitutional protections, the police would be free to storm office buildings and seize computers or documents. The mayor of New York City could exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there. Moreover, the government would be able to censor all corporate speech, including that of so-called media corporations. In short, rights-bearing individuals do not forfeit those rights when they associate in groups. This essay will demonstrate why the common argument that corporations lack rights because they aren’t people demonstrates a fundamental misunderstanding of both the nature of corporations and the First Amendment.

Go here to download “So What If Corporations Aren’t People?”

Obama’s Top 10 Constitutional Violations

That’s the topic of my latest op-ed, in the Daily Caller.  Here’s the list:

  1. The individual mandate
  2. Medicaid coercion
  3. The Independent Payment Advisory Board
  4. The Chrysler bailout
  5. Dodd-Frank
  6. The deep-water drilling ban
  7. Political-speech disclosure for federal contractors
  8. Taxing political contributions
  9. Graphic tobacco warnings
  10. Health care waivers

For descriptions of what makes these things so constitutionally bad, read the whole thing.