First Amendment

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.”

Get ready for a showdown over free speech: Harry Reid will push partial repeal of the First Amendment next week

When the Senate returns to Washington next week, Majority Leader Harry Reid (D-NV) is expected to bring up S.J. Res. 19, a constitutional amendment proposed by Sen. Tom Udall (D-NM) that would effectively repeal political speech protections in the First Amendment.

Reid filed a motion to proceed on the constitutional amendment on August 1, just before the chamber adjourned for its summer recess. Although the original text of the amendment gave Congress the sole power to regulate political speech, including campaign finance regulations, the Senate Judiciary Committee approved the measure with substitute language to allow states to implement their own rules and regulations, in addition to those passed by Congress.

The measure, however, is an attempt to diminish the influence of issue-focused nonprofit organizations and political action committees, which, Senate Democrats say, are often funded by corporate interests. Section 2 of the amendment would allow Congress and state legislatures to prohibit “corporations or other artificial entities created by law…from spending money to influence elections.”

Awesome: Actor Gary Oldman says he’s a libertarian, and epically takes down Hollywood’s politically correct culture

Gary Oldman has stolen plenty of hearts, but he probably now has a special place in the hearts of liberty lovers. The English actor told Playboy he considered himself a libertarian and took a great shot at Bill Maher in the process.

PLAYBOY: How would you describe your politics?

OLDMAN: I would say that I’m probably a libertarian if I had to put myself in any category. But you don’t come out and talk about these things, for obvious reasons.

PLAYBOY: But there are a ton of conservatives in Hollywood, and libertarians too. Bill Maher has called himself a libertarian.

OLDMAN: I think he would fail the test. Anyway, unlike Bill Maher, conservatives in Hollywood don’t have a podium.

Oldman is right in saying conservatives (and libertarians) don’t have a real podium in Hollywood. There isn’t really a “conservative/libertarian Bill Maher or Jon Stewart or Stephen Colbert” unless you count Greg Gutfeld and Andy Levy from Fox’s Red Eye. It’s a shame, because there are some really funny liberty lovers out there like Stephen Kruiser.

But Oldman has some interesting comments regarding drug legalization and personal responsibility.

PLAYBOY: What’s your take on legalizing marijuana?

OLDMAN: It’s silly to me. I’m not for it. Drugs were never my bag. I mean, I tried it once and it wasn’t for me, though, unlike Bill Clinton, I did inhale. To me, the problem is driving. People in Colorado are driving high and getting DUIs. That’s what I worry about. Listen, if you want to do cocaine, heroin, smoke marijuana, that’s fine by me. It’s just that I worry about kids behind the wheel of a car more than anything.

Liberals Frothing at the Mouth over McCutcheon Ruling

“Liberals claim to want to give a hearing to other views but then are shocked and offended to discover that there are other views.” — William F. Buckley Jr.

For the second time in four years, liberals all over America are once again in the throes of apoplectic rage at the Supreme Court over a decision expanding free speech rights.

On January 21, 2010, in a 5-4 decision, the U.S. Supreme Court ruled in Citizens United v. Federal Election Commission that the First Amendment protections of free speech prohibit the government from restricting political donations by corporations (and labor unions, but you never hear the left complaining about that).

This ruling became a rallying cry for the left, who decry the corrupting influence of money on our political process. Eight days after the decision, Barack Obama stood before the assembled members of the House and Senate, as well as the justices of the Supreme Court, and railed against the immorality and danger of the decision.

Quoth Emperor Barack, “With all due deference to separation of powers, last week the Supreme Court 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…I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities. They should be decided by the American people. And I urge Democrats and Republicans to pass a bill that helps correct some of these problems.”

SCOTUS weighs the limits of the First Amendment

The Supreme Court heard the case of Hobby Lobby, on the HHS mandate that requires most businesses that employ over 50 individuals to provide coverage for 21 forms of birth control. The businesses that are parties to the suit, while they are private for-profit companies, have incorporated or otherwise stated in their mission statements, that their businesses are owned and operated by individuals that include their religious practices in their work.

Due to their religious beliefs, that are freely stated to potential employees before they consent to work for these companies, they object to providing some or all of the contraceptives in the HHS mandate on moral grounds. The government presented the case that since they are not religious organizations per se, they do not have the freedom to run their businesses with religious overtones, at least not when it interferes with governmental mandates.

That is a thumbnail sketch of the case, and in spite of the fact that SCOTUS will not hand down a ruling until June, there are plenty of pundits offering opinions on exactly how that will end up. It’s interesting to attempt to guess what a given Justice will say on this issue, based on the questions presented during the case yesterday, however, it probably isn’t going to serve anyone to do that. Let’s not forget the ruling that the ObamaCare penalties were actually taxes by Chief Justice John Roberts, that got us to this point in the first place.

While it seems that quite a few of the commentators out there seem to think that this will fall in favor of Hobby Lobby, and the other corporations involved, perhaps at this point it would be better to think about “what comes next?” if that isn’t the case.

Democrats Urge IRS to Crush Conservative Free Speech

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press… — First Amendment to the U.S. Constitution

Perhaps at no time in its history since the passage of the Alien and Sedition Acts have the citizens of the United States been more in danger of losing their First Amendment right to free speech than they are today. How ironic then, that the attacks are coming primarily from the political left, who have long declared themselves defenders of free speech.

Yet the astute William F. Buckley seems to have had it right when he observed that Liberals claim to want to give a hearing to other views but then are shocked and offended to discover that there are other views.”Such reviling of opposing speech is rampant today, and is getting worse.

Following the revelation last year that the IRS had been targeting conservative groups with words like “TEA Party” or “Patriot” in their names, Obama and Attorney General Eric Holder claimed to be shocked and appalled that this agency would be used as a bludgeon to silence their political opponents. Senior IRS official Lois Lerner resigned, and refused to testify before Congress, invoking her 5th Amendment right against self-incrimination. The nation was assured that the Obama administration would get to the bottom of it.

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.

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