Free Speech

Trump’s Nomination Doesn’t Mean Libertarians’ Involvement in the GOP Has Been Misplaced

[Editor’s Note: This commentary by former Federal Election Commission Chairman, Center for Competitive Politics Chairman and Founder, and Capital University Josiah H. Blackmore/Shirley M. Nault Professor of Law Bradley A. Smith is reprinted here with his permission.]


A libertarian professor friend of mine took the opportunity of Trump’s nomination to write on Facebook:

The fact that the GOP appears to be nominating Trump, and the fact that libertarian-leaning conservative intellectuals in the GOP are (rightly) frothing at the mouth the most about it, only provides more evidence for my long-standing view that libertarian intellectuals who thought their (our?) home was in the GOP were making a very risky “pact with the devil.”

He went on a bit but that gets the mood and core message of the piece.

My response, which I’ll reprint here with light edits, was this:

New Net Neutrality Order Is a Nadir for the First Amendment & Internet Freedom

censored press

If a court affirms the FCC’s ruling that broadband Internet service providers (ISPs) have no right to exercise editorial discretion over Internet transmissions on their networks, the First Amendment could not stop the government from censoring the transmissions of end users on ISP networks.

The First Amendment is premised on a simple idea: Ensuring mass media communications are free of government control is a “precondition to enlightened self-government and a necessary means to protect it.” Though this principle should be obvious, it has been lost in application to the Internet age. In its recent order adopting net neutrality rules and reclassifying Internet access as a common carrier service subject to telephone regulation (“Net Neutrality Order”), the Federal Communications Commission (FCC) concluded that Internet transmissions on networks operated by broadband Internet service providers are not entitled to protection from government control. According to the FCC, the transmission of Internet communications is not constitutionally protected speech, because it is not “inherently expressive.” The FCC relied on this conclusion to justify its decision to regulate the Internet as if it were a plain old telephone network that transmits only common carrier communications.

Matt Lewis Is Right: Rand Paul Is Wrong on Term Limits, Here’s Why

(Editor’s note: this post first appeared on George Scoville’s personal blog.)

The Daily Caller’s Matt Lewis has a really important piece up this morning critiquing Rand Paul’s rhetoric on congressional term limits from Paul’s announcement of his 2016 presidential campaign yesterday. During his speech, Paul said, “We limit the president to two terms … It is about time we limit the terms of Congress.”

Here are the counterpoints Lewis offers (emphasis added):

More hypocrisy: Senate opens debate on amendment to partially repeal the First Amendment while taking corporate cash

Sen. Tom Udall (D-NM)’s S.J. Res. 19, the constitutional amendment proposal that would severely handicap our First Amendment political speech protections, has just been pushed forward in the Senate.

The Hill reports that early on Monday, the Senate advanced the amendment proposal after 20 Republicans voted with Democrats. The amendment, which would reverse the Supreme Court’s decision in Citizens United v. Federal Election Commission, has been worded to restrict the work performed by issue-focused nonprofit organizations and political action committees. It would also target corporations, which is the reason why this amendment is being so widely supported by liberals.

While most Republicans originally stood against boosting the regulatory burden on political speech, Sens. Marco Rubio (R-FL), John McCain (R-AZ), and Lindsey Graham (R-SC) - among others - voted to push the motion forward. Sen. Rand Paul (R-KY), among others, voted against the proposal.

Senate Majority Leader Harry Reid (D-NV) has claimed he will spend as much time as Republicans need to debate the issue. To him, campaign spending reform is necessary to curb the easy flow of what he calls “dark money” in politics. According to Reid, “this constitutional amendment is what we need to bring sanity back to elections and restore Americans’ confidence in our democracy.”

Net Neutrality Opinion Indicates Internet Service Providers Are Entitled to First Amendment Protection

Verizon v. FCC, the court decision overturning the Federal Communications Commission’s (FCC) net neutrality rules, didn’t rule directly on the First Amendment issues. It did, however, reject the reasoning of net neutrality advocates who claim Internet service providers (ISPs) are not entitled to freedom of speech.

The court recognized that, in terms of the functionality that it offers consumers and the economic relationships among industry participants, the Internet is as similar to analog cable networks as it is to analog telephone networks. As a result, the court considered most of the issues in the net neutrality case to be “indistinguishable” from those addressed in Midwest Video II, a seminal case addressing the FCC’s authority over cable systems. The court’s emphasis on the substantive similarities between analog cable services, which are clearly entitled to First Amendment protection, indicates that ISPs are likewise entitled to protection.

Net neutrality advocates argued that ISPs are not First Amendment “speakers” because ISPs do not exercise editorial discretion over Internet content. In essence, these advocates argued that ISPs forfeited their First Amendment rights as a result of their “actual conduct” in the marketplace.

Free speech: Phil Robertson vs Melissa Harris-Perry

Melissa Harris Perry

Free speech prevents governments from censuring their citizens for words they say or write. Modern jargon has broadened it to mean freedom from any consequences whatsoever for spoken or written words. However, in our jaded, cynical world, the application of this concept is often first filtered through a partisan lens.

Recently Phil Robertson, one of the stars of a reality show on A&E, said some things in a magazine interview that offended people. A&E decide to suspend him (but have since reversed). The public discourse, specifically the socially conservative quadrant, erupted, and a new front in the culture wars was launched. Some argued that what Robertson said wasn’t offensive, so his suspension was unwarranted.

Regardless of my personal opinion, this is at least a defensible position. A person may or may not find something offensive, regardless of the objective fact that it offended others, and so not see the need for disciplinary action. Many instead invoked Robertson’s free speech rights. This is an untenable position from any angle. No one was sanctioned by the government, so no rights were violated. However, A&E also has free speech rights, employer rights, and contract rights, which precious few conservatives stood up for at the time.

Liberty – Not Chinese Industrial Policy – Drives Innovation in America

Last week on The Diane Rehm Show, Susan Crawford, former special assistant to President Obama for science, technology, and innovation policy, claimed that China “makes us look like a backwater when it comes to [broadband] connectivity.” When she was asked how this could be, Ms. Crawford responded:

It happened because of [Chinese industrial] policy. You can call that overregulation. It’s the way we make innovation happen in America.

Ms. Crawford is wrong on the facts and the philosophy.

The Actual Facts

Two months ago, Ms. Crawford’s former employer, the Office of Science and Technology Policy, released a report with these conclusions:

The Rise of Digital On Demand Media

online...

This morning I was a mentor. This afternoon, a boss. Later, after lunch, an employee which, in turn, allowed for me to provide for my family. Let’s not forget this evening when I opened my books and was a student.

If this were my life a decade ago I would quite easily forget, or neglect, my right to know what was going on around me in my community, my state, my nation, and my world. The CBS Evening News with Dan Rather, The NBC Nightly News with Tom Brokaw, or CNN’s Lou Dobbs Tonight and Anderson Cooper 360º would have just past me by without notice.

Today, with the revolution of online media and digital forms of journalism it allows for any multi-tasking individual with ADD, such as myself, to stay current with events happening around the world, or just down the street. The depth that I want to consume myself in the information depends solely on how much time I have in between appointments. I tell Anderson Cooper when he can and cannot speak.

Getting information about current events through internet sources has given me the opportunity to stay informed on the go. Corporate news networks on television dictate when you can listen and they have the same tone and message with slightly different undertones and agendas to appeal to a certain demographic, but still manage to deliver the same generic stories.

Too Good to Check: Ben & Jerry’s Ben Cohen Now Buying Issue Support with Free Ice Cream

Ben & Jerry’s co-founder Ben Cohen is waging a new campaign to reform the campaign finance system, and to “get money out of politics.” But Cohen is no stranger to injecting a lot of his own money into politics, and his latest gambit makes him a hypocrite of the highest degree, as the Ben & Jerry’s company and its parent company Unilever bear the financial costs of his advocacy.

Ben & Jerry's truck

You might say Cohen is delivering the bullshit by the truckload these days. Politico Influence reports:

BEN & JERRY’S DEFENDS FREE ICE CREAM TO FIGHT CORPORATE INFLUENCE: Last week, POLITICO reported that Ben & Jerry’s co-founder Ben Cohen is fighting the Citizens United decision by stamping dollar bills with anti-money-in-politics messages. Anyone who presents a stamped dollar bill gets a free ice cream. PI asked Ben & Jerry’s ‘Grand Poobah’ of communications Sean Greenwood who was paying for the effort - noting that it would be a bit ironic for a for-profit corporation to fight influence-peddling by giving away free ice cream.

Google at Your Own Risk - the FBI could be Watching

Google - Robert Scoble (CC)

Riddle me this, riddle me that. Who’s afraid of the big government?

Taking a little literary liberty by twisting the line of the Riddler there, but it does seem fitting at this moment to call that twisted character to mind right now. Only a villain with his particular brand of psychosis should be able to understand the logic of the latest legal debacle facing the internet giant, Google right now.

Anyone that was smart enough to point out that the Patriot Act wasn’t necessarily the smartest move to make in the wake of the 9/11 attacks can gloat a little now. But, that is cold comfort, given the current situation. In a ruling dated May 20, U.S. District Court Judge Susan Illston ordered Google to comply with the FBI’s demands to turn over search data requested in “secret letters.”

It is assumed that the legal wrangling is not over, since Illston put her ruling on hold until the 9th U.S. Circuit of Appeals could decide on the matter. As reported by the Associated Press and Fox News:

Illston’s May 20 order omits any mention of Google or that the proceedings have been closed to the public. But the judge said “the petitioner” was involved in a similar case filed on April 22 in New York federal court.

Public records show that on that same day, the federal government filed a “petition to enforce National Security Letter” against Google after the company declined to cooperate with government demands.


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