Tag: free speech

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.

Case Dismissed!

Yesterday, Federal Judge Kimba Wood dismissed the jury “tampering” indictment against a peaceful jury nullification advocate. Julian Heicklen, an 80-year-old retired chemistry professor, had been indicted for standing outside a Manhattan federal courthouse handing out pamphlets explaining the legal theory that jurors who disagree with a law may acquit a defendant accused of violating that law.

Whew!  It’s safe to hand out pamphlets again.

Rachel Barkow, law professor at New York University, says, “I don’t think sensible prosecutors should have even brought this case.”   Right, but since this case was publicized, we know there’s no sensible supervision of these prosecutors either—so the problem is deeper.

Previous coverage here.

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?

Feds Spin Yarn About ‘Significant Threat’

Federal prosecutors told a federal judge that they’re prosecuting an elderly man because his actions constitute a “ significant threat” to the legal system.

Guess what he did?

(a) He smuggled stolen FBI documents to a suspected Al-qaeda prisoner in the NY jail.

(b) He attended court hearings and made belligerent outbursts.

(c) He wrote nasty letters to prosecutors and judges accusing them of corruption.

Actually, all he did was distribute pamphlets outside the courthouse.  And in the view of federal attorneys, if such pamphlets express an opinion, or quote our second president saying jurors can and should vote according to their conscience, then the distributor must be arrested and jailed—at least if he gets too close to the courthouse.

Previous coverage here.

Not Everything Can Be a Federal Crime

Cato legal associate Carl DeNigris co-authored this blogpost.

Over the last few decades, the number of federal crimes has exploded. The U.S. criminal code has grown so large and so expansive that no one is exactly sure how many federal crimes are actually on the books, with estimates ranging from 4,000 to 300,000. As Justice Scalia has noted, “It should be no surprise that as the volume increases, so do the number of imprecise laws.”

Many individuals and organizations from across the ideological spectrum have voiced concern over this growing trend, recognizing that broadly defined crimes lack the clarity traditionally required before depriving citizens of their liberty.

The expansion of 18 U.S.C § 1001, which criminalizes the knowing and willful making of materially false statements in “any matter within the jurisdiction of” the United States, exemplifies this broadening scope. Cory King was prosecuted under this statute for making a false statement to a state official wholly unconnected to any federal agency or investigation. Yet, the Ninth Circuit held that Mr. King violated § 1001 because the subject matter of his statement was one over which a federal government agency possessed regulatory authority.

King has now asked the Supreme Court to hear his case. Cato has joined the National Association of Criminal Defense Lawyers and the Texas Public Policy Foundation on a brief supporting him and arguing that the Ninth Circuit stretched § 1001 beyond its proper jurisdictional reach. Such an unbounded interpretation risks greater over criminalization and further misuse of the federal criminal code.

Moreover, since § 1001 is a “process crime” that focuses on offenses “not against the particular person or property, but against the machinery of justice itself,” an excessively broad construction would undermine the integrity of the criminal justice system. Wider application of such crimes facilitates pretextual prosecutions, in which “the operating philosophy seems to be that, if the government cannot prosecute what it wished to penalize, it will penalize what it can prosecute.”

Such an arbitrary and far-reaching application of the criminal code – the federal criminal code, at that – has no place in a free society.

The Court will decide whether to take up King v. United States sometime this spring.

Why Is Massachusetts Trying to Ban Truthful Information About Hedge Funds?

The Massachusetts Uniform Securities Act prohibits general solicitation and advertising by anyone offering unregistered securities, ostensibly for the purpose of furthering state and federal disclosure schemes. Yet this ban on public communications has been applied so broadly that it has undermined those purported disclosure goals.  For instance, the ban has prevented individuals who have no interest in investing in any security – such as journalists, academics, students, and others who are not wealthy or financially sophisticated – from receiving truthful, non-misleading information about hedge funds.

In Bulldog Investors v. Massachusetts, an investment company maintained an interactive website that provided information about its products. Because Bulldog was not registered in Massachusetts, however, the State filed an administrative action against the firm, demanding it take down its online content.

In response, Bulldog joined a group of other firms and individuals – including some who have no interest in investing but wish to read the website information – in a lawsuit claiming that the Massachusetts ban violates their First Amendment rights. The Supreme Judicial Court of Massachusetts upheld the ban, so the plaintiffs have asked the U.S. Supreme Court to take the case.

Cato, along with the Competitive Enterprise Institute and a group of journalists and academics, has now filed an amicus brief supporting that request and arguing that the Massachusetts law is an unconstitutional ban on free speech. We show that the state’s claim that the ban furthers a larger federal regulatory scheme ignores the judgment of many federal officials (from both parties) who have concluded that such bans undermine these goals.

The state’s alleged disclosure interest is just a pretext for coercing companies to register in Massachusetts, and is therefore an unconstitutional attempt at circumventing federal preemption. But even if the ban furthers a legitimate state interest, it is so broad that it is has substantially chilled both truthful, non-misleading commercial speech and noncommercial speech alike.

A law so repugnant to the First Amendment cannot stand.

A Jury’s ‘Secret’ Power

This month’s Wisconsin Lawyer has an article entitled “Nullification: A Jury’s ‘Secret’ Power,” by Erik R. Guenther. Here is an excerpt:

When “[t]he purpose of a jury is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge,”should the jury be kept in the dark about its fundamental power to decide the justness of the law as applied in a particular case? Should the power remain a secret (which is referred to only by a pejorative – nullification) rather than be acknowledged as an inherent, appropriate, and recognized part of the jury function?

Read the whole thing.  The feds are still fighting hard to keep the jury’s power ‘secret’—so hard that free speech must be punished.

For additional background, go here and here.