Battles Looming Over First Amendment Rights
by ROGER ARONOFF
August 2, 2010
With all of the takeovers of various aspects of society by the Obama administration, none are as perilous as the one takeover we could be on the brink of—namely the First Amendment. It is under assault in so many very real ways, and the media are largely silent about it. That is because they are aware of the goals, and they share them. The goal is to silence conservative and Republican voices, to regulate the Internet, to favor certain news organizations—in essence to pick winners and losers when it comes to First Amendment rights and freedom of speech.
With Tuesday’s defeat of the so-called DISCLOSE act in the Senate, the Republicans have beaten back one arrow in a large-scale assault on the First Amendment. But Sen. Chuck Schumer (D-NY) has said he will keep bringing it up until it passes. The Democrats view this bill as their best chance to keep this November’s election from being a disaster for them.
DISCLOSE is an acronym for Democracy is Strengthened by Casting Light on Spending in Elections. George Orwell would be proud. This bill, which passed the House with 219 votes (218 were needed) is intended to overturn the Supreme Court ruling in the case of Citizens United v. Federal Election Commission (FEC). That was the decision that said that corporations and labor unions may spend money independently to support political candidates. It was the decision for which President Obama chastised the members of the Supreme Court who were sitting right in front of him during his State of the Union speech this year, and to which Justice Samuel Alito mouthed the words, “Not true,” when Obama said the decision had “reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” The usually Obama-friendly PolitiFact found Obama to be the one exaggerating in this case.
Hans Von Spakovsky, a former Federal Election Commission (FEC) commissioner, points out some of the problems with this new bill: “If this bill passes, it will become effective within thirty days, which will cause such confusion and chaos only two months before the fall congressional elections that many corporations, both profit and nonprofit, and incorporated associations, will no doubt stay out of the election and stay out of grassroots activity on other bills and issues being considered by Congress before November. But then, there is little doubt that deterring such activity that could lead to criticism of the positions and votes taken by incumbent senators and representatives is an intentional objective.
“The Framers of our Bill of Rights are probably rolling over in their graves as they contemplate what may be about to happen in the United States Senate...When members of the United States Congress believe they have the power to violate the First Amendment with impunity and censor the political speech of those who they believe should not be able to speak, then the Union no longer stands “rock-bottomed and copper sheathed, one and indivisible.”
Though one of the arguments against DISCLOSE is that the burdens it places on corporations that choose to advocate for or against candidates is greater than those placed on labor unions, the AFL-CIO ended up opposing the bill too, arguing that “the Senate bill imposes extraordinary new, costly, and impractical record-keeping and reporting obligations on thousands of labor (and other non-profit) organizations with regard to routine inter-affiliate payments that bear little or no connection with public communications about federal elections.”
The Democrats came up with 58 votes, two votes short of those needed to end debate, and Harry Reid changed his at the last minute, so he could bring it up again after the August recess. Reid is also planning to get rid of that pesky filibuster rule, used by both parties, but proving an inconvenient truth for now. It has helped to block DISCLOSE, Cap & Trade, comprehensive immigration reform, and very nearly, but not quite, stopped the virtual nationalization of the health care and financial industries.
The Democrats are seeking to minimize their losses in November by changing the rules and the political environment.
They are also choosing to not pass appropriations bills in a timely manner that would force them to take unpopular positions just before the November election when 472 out of 535 senators and representatives will be voted in, or back into office.
Even more concerning are the quiet efforts to vastly expand government control over much of the media and the Internet. The plans, which are well underway, include backdoor efforts to impose a new version of the Fairness Doctrine, through FCC regulations, and through the Federal Trade Commission (FTC) are plans to subsidize and thus control newspapers. The FCC is also working on a scheme to gain control or at least govern the Internet, and the United Nations has its own efforts underway, for which the U.S. has no veto power, and may even provide the impetus for such action.
According to an article in the Wall Street Journal by Robert McDowell, a current Republican commissioner of the FCC, “The FCC proposed in June to regulate broadband Internet access services using laws written for monopoly phone companies. Despite a four-decade bipartisan and international consensus to insulate computer-oriented communications from phone regulation, the FCC is headed toward classifying these complex 21st century technologies as ‘telecommunications services.’”
And this is significant because of the International Telecommunication Union (ITU) conference scheduled for this fall in Mexico. According to McDowell, “The ITU is a treaty-based organization under the auspices of the United Nations that regulates international telecom services by, for instance, administering international telephone numbers. To date, the ITU has had no jurisdiction over the Internet. But the U.S.’s own telecom regulator, the Federal Communications Commission (FCC), may spark a possible cascade of international regulation of the Web, led by the ITU.” He is referring to the FCC’s reclassifying broadband Internet access services so they are treated similarly to telecommunications services.
“This could inadvertently trigger ITU,” writes McDowell, “and, ultimately, U.N. jurisdiction over parts of the Internet. Unlike at the U.N. Security Council, the U.S. has no veto power at the ITU and may not be able to stop it.”
The recent incident regarding Shirley Sherrod and the posting of part of a speech she made on Andrew Breitbart’s website BigGovernment has some in the media, notably a couple of CNN anchors, calling for some sort of regulation of Internet content. Presumably they are confident that this regulatory typhoon won’t reach their shores.
This week Rep. John Dingell, the Chairman Emeritus of the House Committee on Energy and Commerce, said that he was unsatisfied by a response from FCC chairman Julius Genachowski regarding its plans for increased authority over the Internet. According to an article in The Hill newspaper, “Dingell said in a letter dated Wednesday that the FCC should ‘abandon’ its effort to increase its authority over Internet service providers.”
Adam Thierer of the Progress and Freedom Foundation (PFF) recently gave AIM an extensive interview, in which he walked us through the landscape, and the people who are promoting the concepts of increased government control over certain aspects of the media and the Internet, with barely any coverage by the mainstream media. PFF is a non-profit think thank that takes “a market-oriented vision of issues pertaining to cyber-freedom: Internet issues, policy issues pertaining to intellectual property, communications and media policy, freedom of speech and First Amendment.”
We discussed some of these, and other related issues. He is very concerned, as are we, that in the name of “fairness,” or of saving the news business, the FCC and FTC respectively are proceeding with plans and discussions to increase government, and thus political control over the content that is available to us. Another issue he is concerned about is Net Neutrality. Who can oppose neutrality? One warning sign is the people and organizations that President Obama has turned to for advice and for heading up these programs and commissions that affect these matters. It is all very disturbing, and makes clear how fragile our First Amendment freedoms really are.
You can read the transcript or listen to the whole interview here.