Category: First Amendment rights

Categories
First Amendment rights

Lawyered Up

“The first thing we do,” declaims Dick the butcher, “let’s kill all the lawyers.”

Last night, as I dined with attorneys David Langdon and Joshua Bolinger, in town representing the Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes before the U.S. Supreme Court today, echoes of Henry VI could be heard amongst the clinking of glasses, the “dead lawyer” jokes, and other minor eruptions of mirth. Shoring up for the big case, you see.

Susan B. Anthony List v. Steven Driehaus involves an Ohio law designating it a crime to knowingly or recklessly make a false statement about a political candidate or ballot measure.

But who is to determine what is false or true in the heat of a campaign?

A government board? 

Well, yes. Funny you should ask.

Back in 2010, the Susan B. Anthony List began publicizing that various members of Congress, including Ohio Congressman Steve Driehaus, had voted for federal funding of abortion when they voted for Obamacare. The group planned billboards, to read: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.”

Driehaus quickly filed a complaint with the Ohio Elections Commission (OEC). While people of good will can honestly disagree as to the “truthiness” of the charge (as an amusing amicus brief filed by the Cato institute dubbed it), the OEC decided there was probable cause to prosecute the Susan B. Anthony List.

So the billboard company refused the group’s ads. The Coalition Opposed to Additional Spending and Taxes also dropped their plans to similarly publicize Driehaus’s record.

Ohio Attorney General Michael DeWine has admitted harboring “serious concerns” about the constitutionality of the Ohio law. However, today’s issue before the High Court isn’t the policing of campaign speech itself, but whether these groups have standing to challenge the law.

Both issues should be 9-0 decisions.

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights ideological culture

Firefox Fired

Brendan Eich resigned last week as CEO of Mozilla under pressure from gay rights activists upset because six years ago Eich had given a thousand bucks to California’s anti-gay marriage initiative, Prop 8.

On Fox News’s Special Report, George Will dubbed the story “redundant evidence that progressives are for diversity in everything but thought,” as well as an alarming illustration of the intolerance of “sore winners.”

Whatever one thinks of the campaign to drive out Eich (and a number of prominent gay leaders have spoken out against it), those demanding Eich’s ouster were within their legal rights. Still, such a political attack wouldn’t be possible without government assistance in denying donor anonymity. That’s the major lesson Mr. Will drew from the fracas: anonymous contributions are vital:

The people advocating full disclosure of campaign contributions say, “we just want voters to be able to make an informed choice.” That’s not what they’re doing at all. They really want to enable themselves to mount punitive campaigns, to deter people, and to chill political speech.

What’s wrong with today’s vendetta politics (what Pat Buchanan calls “The New Blacklist”) is not that boycotts are immoral, but that, when made personal and coupled with ideological conflict, they lead to never-ending feuds.

Anonymous speech and press and donations remain key to a peaceful society.

Advocates of mandatory campaign finance disclosure should be asked, “do you also, then, oppose the secret ballot?”

The privacy of the voting booth was also instituted to insulate people from the worst aspects of partisan discord . . . and commerce from the legacy of the Hatfields and McCoys.

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights judiciary national politics & policies

Limiting the Little Guy

Last week’s U.S. Supreme Court decision in McCutcheon v. Federal Election Commission correctly struck down limits on the total amount of money a person can contribute to all federal candidates and to political parties and PACs in a two-year election cycle.

After all, what part of “Congress shall make no law” provides the specific authority for Congress to limit what a person may give to a political party?  Or the number of candidates one may support?

But in his dissent, Justice Stephen Breyer argued that, “Where enough money calls the tune, the general public will not be heard.”

“No matter what five Supreme Court justices say,” announced Public Citizen, “the First Amendment was never intended to provide a giant megaphone for the wealthiest to use to shout down the rest of us.”

I want the public to be heard, not shouted down.

Which is why it is not Breyer, but Justice Clarence Thomas who is right: this ruling didn’t go far enough. While justly removing the limits on the aggregate amount a wealthy person can contribute, the Court upheld the limit of $2,600 on what you or I can give to a single candidate.

The super-wealthy can spend millions in an independent expenditure for their preferred candidate. Fine. It’s their money. Yet, a person of more modest means doesn’t have the dough to launch an effective independent effort.

Instead, if you felt strongly enough, you could dip into savings or work a second job to afford to give, say, $3,000 or $4,000. Except that our campaign finance laws prevent it. This is the limit that affects the most people. Non-rich people.

Stop limiting the little guy.

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights

Debate Versus Intimidate

Political donors often prefer to remain anonymous.

It’s not just shyness. Anonymity can protect you from unscrupulous political opponents. The higher your profile — especially if you’re persuasive, or your story contradicts some treasured “narrative” — the higher your risk may be.

At Breitbart.com, Mike Flynn writes that “non-disclosure of donors” is a shield inherited from “the civil rights struggle, when the government sought to protect donors from intimidation by groups like the KKK.” Nowadays, sundry leftist groups and government officials seem to be the premier intimidators.

Character assassination is just one hazard. Flynn discusses what happened, for example, to cancer patient Bill Elliot and insurance broker Steven Tucker. Elliot spoke publicly about how his coverage had been dropped thanks to Obamacare. Tucker, who helped Elliott get a new policy, also talked to the media about the situation. In short order, both men got notices from the IRS of impending audits.

Then there are the assaults on businessmen like the Koch brothers and Frank VanderSloot (whose case I’ve talked about before). VanderSloot was targeted by the IRS, the Department of Labor and a U.S. Senate office soon after the 2012 Obama campaign published a hit list of “bad” political donors — i.e., major contributors to the Romney campaign.

In light of such realities, it’s fine that espousers of political causes are sometimes pseudonymous, and that donors to them are sometimes anonymous. Every law-abiding individual has an inalienable right to make of himself a harder target.

This is Common Sense. I’m Paul Jacob.

Photo by arbyreed used under a Creative Commons license.

Categories
First Amendment rights national politics & policies

How to Protect Yourself from Spying

We value our privacy.

No wonder we’re nervous. The National Security Agency, in blithe disregard of our constitutional right against unwarranted search and seizure, has been indiscriminately scooping up data (“meta” data) about our communications (among other covert acts that have compromised the security of our transactions).

However the controversies triggered by the scandals play out, it’s clearer than ever that you can’t trust the government to respect your right to privacy. Your line of first defense has to be you.

Even before the NSA scandal broke, the Electronic Frontier Foundation (EFF) was on the case, explaining how to reduce your risk when saving data to your computer, sending the data elsewhere, and entrusting it to third parties. Their Surveillance Self-Defense site spells out what the government can legally do to spy on you and what you can legally do to protect yourself. The discussion includes nitty-gritty stuff like advice on the proper use of passwords and encryption, protecting yourself against malware, and lowering the risk of eavesdropping on confidential conversations.

That’s right, SSD talks about “what the government can legally do” to breach your data or listen in on your life, not so much about what it can do illegally. A banner atop the home page notes that the site “has not yet been updated to reflect the 2013 revelations about the NSA. . . .”

Updates are coming. Meanwhile, we can fill in some of the blanks ourselves. . . .

This is Common Sense. I’m Paul Jacob.

Illustration by ocularinvasion used under a Creative Commons license.

Categories
First Amendment rights ideological culture national politics & policies

Supreme Politics and Sublime Congress

Former FEC commissar Trevor Potter says the Supreme Court “should get more politically savvy.”

Potter really means the High Court should agree with him, and allow incumbents in Congress to write the campaign finance rules under which they — and their opponents — operate, undisturbed by constitutional review.

Last week, the Court heard McCutcheon v. Federal Election Commission, a case concerning Shaun McCutcheon, an Alabama businessman, who wants to give $1,776 dollars to more candidates. He’s limited, because by law he cannot give over $48,600 to all federal candidates combined.

Why? Apparently those who contribute $48,600 or less to candidates they believe in are pure of heart, but that once that forty-eighth-thousandth-six-hundredth-and-first dollar is donated it can only be devoid of any decent intention, an unquestionable attempt to corrupt our government.

Most observers recognize that such an arbitrary limit is constitutionally suspect and likely to be voided. Including Potter, who is already furious that the Roberts Court has restricted congressional legislation dealing with campaign regulation in all five cases it has thus far considered. Potter accuses it of “judicial hubris” and “contempt for legislative authority” and “a surprising lack of respect for Congress’s expertise on political matters.”

How could “a lack of respect” for Congress be “surprising”?

Speaking of “political savvy,” where’s Potter’s?

Potter concludes that the Supremes “should leave politics to the politicians, who have a better sense of when the intersection of fundraising and lawmaking leads to corruption.”

Sure, politicians have a better sense of that corrupt intersection . . . they’re always there.

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights media and media people

Journalism Codified

The great revolutionary idea at the time of our nation’s independence rubs against the grain of politics and “statecraft,” as practiced by khans, kaisers, and kleptocrats: divide and conquer, divide and rule. It is no wonder that the art of making legal distinctions is so often based not on human rights but governmental convenience.

Take the right of a free press.

The notion of open government has it that the right to participate in the dissemination of knowledge (particularly information about government) is to be an individual right. Modern Freedom of Information Act (FOIA) laws are a great example of government accommodation of this right.

But the Michigan House is now attempting to restrict access to state information by trying to set up a definition of journalist, making it easier for journalists to finagle data from government, harder for lone individuals. The state’s House Judiciary Committee just approved HB 4770, which does a number of things, including setting very particular definitions of terms like “newspaper” and “journalist.”

All the better to make the practice of publishing information about government more of a privilege than a right.

This was made even clearer at the federal level, by Senator Diane Feinstein, whose support for a new “shield law” to protect journalists is best understood by its limitations: bloggers, you don’t count. And she actually referred to a “special privilege” to publish. Not a right guaranteed by the Constitution.

Politicians like it when they have credentialed, easy-to-identify (and easier-to-manipulate) professional journalists to contend with.

Citizens with those rights? Why, it drives them crazy.

Crazy enough to try to codify what a “journalist” is, anyway.

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights national politics & policies too much government

Nuking the Net?

The military network that later combined with other networks to “make the Internet” was started out with an interesting purpose: to establish a communication system that could withstand nuclear strikes.

What if the United States were hit by multiple nuclear bombardments? How would survivors communicate? The protocols of the Internet allow for radical decentralization, which allows communications to get around nuked hubs.

Now, around the world, governments are trying to control this decentralized Net, taking down or otherwise preventing citizen access to Web services and sites (China, Britain, Australia, for example), and (most resolutely in China and the United States) preventing communication that cannot be “listened in” upon.

It’s almost as if governments are “nuking the Internet.”

The latest case? Lavabit. This Internet company has specialized in encrypted communications. Last week its owner and operator, Ladar Levison, made a public statement:

I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations. I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on — the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise.

In an interview with Democracy Now, Levison hazarded that, “if the American public knew what the government was doing,” the government “wouldn’t be allowed to do it any more.” But so far, he’s speaking very carefully and not elaborating on what the government wanted him to do with his company.

It’s almost as if Congress nuked the Constitution.

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights media and media people national politics & policies U.S. Constitution

Dick Durbin’s Dangerous Idea

Politicians think in terms of institutions. If you identify yourself as an individual, a mere citizen, pfft: you’re nothing. But say you are from a lobbying group, or a government bureau, or a news organization — suddenly you matter.

That’s even how they interpret the Constitution.

They are wrong.

Back in May, Illinois Sen. Dick Durbin expressed doubt whether “bloggers, or ‘someone who is Tweeting,’ should be given media shield rights.” He believes a big unanswered question looms:

What is a journalist today in 2013? We know it’s someone that works for Fox or AP, but does it include a blogger? Does it include someone who is tweeting? Are these people journalists and entitled to constitutional protection?

Durbin thinks he’s both clever and profound to ask “21st century questions about a provision in our Constitution that was written over 200 years ago.”

But he is actually missing the whole enchilada, the point of the Constitution.

First, our two-century old freedoms don’t have an expiration date. Second, individuals have rights, not “institutions.” And not because we belong to a group. Either everyone has a basic right, or no one does.

Glenn Harlan Reynolds countered Durbin’s institutional prejudice with a fine piece in the New York Post, where he takes a common sense position: “a journalist is someone who’s doing journalism, whether they get paid for it or not.”

Reynolds reminds us that, in James Madison’s time, “it was easy to be a pamphleteer . . . and there was real influence in being such.”

Just so for today’s Tweeters and bloggers.

Hey: as far as I’m concerned, you’re being a journalist just for commenting on this at ThisIsCommonSense.com.

I’m Paul Jacob.

Categories
First Amendment rights national politics & policies

Imprisonable Speech

Most of the media is finally examining the lies that the Obama administration told ─ is still telling ─ regarding last September’s terrorist attack on the American consulate in Benghazi.

A matter worth investigating, as are wider questions regarding U.S. involvement in Libya.

But as the deceptions unravel, too few ponder the fate of one Nakoula Basseley Nakoula, ostensibly jailed for parole violations. The terms of his parole had prohibited him from using computers or the Internet without his parole officer’s approval. Obviously, Nakoula did use that technology to produce and distribute his anti-Islamic video, widely condemned for being cheesy, among other sins.

It was this video that Clinton and others blamed for inciting the attack in Benghazi.

Okay. The man violated parole. But many were eager to see Nakoula punished not because of that violation but because he exercised his freedom of speech in a way that offended people. We have also learned that soon after the attack, then-Secretary of State Hillary Clinton told Charles Woods, father of one of the slain, that the U.S. would make sure that “the person who made that film is arrested and prosecuted.”

At the least, Clinton was boneheaded to thus imply that the right to freedom of speech was or should be no safer in the U.S. than in Egypt. And considering all the circumstances here, it’s also fair to ask whether Nakoula would have ended up back in a jail cell sans Benghazi cover-up.

Could it possibly be that he is a political prisoner?

This is Common Sense. I’m Paul Jacob.