It's hard protecting the First Amendment. Especially so in an environment where government sees the limitation in actually the opposite way - a positive right. Something it can use to "nudge" speakers toward their "better angels," which, in their view, rests more comfortably with the "public interest."
Perhaps no organization knows how hard it is better than the ACLU. For almost 40 years, the Left's leading defender of the First Amendment broached no restrictions on perhaps the toughest of First Amendment issues (outside of their "Skokie moment") - campaign finance contributions.
Their policy stated:
Limitations on contributions or expenditures made by individuals or organizations for the purpose of advocating causes or candidates in the public forum impinge directly on freedom of speech and association. Their implementation poses serious dangers to the First Amendment. They should be opposed in candidate as well as referenda elections.
What may surprise many on the Left, the group bravely supported Citizens United in the now (in)famous campaign finance case - the one which affirmed important First Amendment rights of unions and corporations during elections. Since the SCOTUS decision, however (and the fallout surrounding it on the Left), earlier this April the organization switched positions on its strict approach to campaign finance restrictions and now believes "reasonable" limitations on campaign contributions may be appropriate.
Chalk one up for incumbents. They're the ones who benefit most when higher finance hurdles get erected to promote a "level playing field." According to at least one former ACLU Executive Director:
Experience has shown that the kinds of campaign finance limits the ACLU now endorses have entrenched the powers that-be even further. Thus the ACLU is prescribing a lot of First Amendment pain for no real democratic gain.
Small change, eh?
Not really. We see a lot of this lately. Was the ACLU pressured into changing its position? Probably not. Still, it has become au currant to minimize the importance of the First Amendment, subverting it to the squishy "public interest" balancing act that results in, well, more "beneficent outcomes" (for policymakers). After all, with a new, more enlightened group running the show in Washington, it's OK to flip the limitation and open it up for government business. Thus, viewing the First Amendment as a positive right allows the government to insinuate itself more easily into our speech so it / our behavior can be controlled with greater facility.
Along these lines, in April my colleague, Berin Szoka, testified before the Senate Commerce Committee on the Children's Online Privacy Protection Act (COPPA). There's been some talk lately of rewriting COPPA, and the Committee, Chaired by Senator Jay Rockefeller, wanted to know if that was necessary. Szoka told the Committee that the law basically worked. Importantly, he urged that it not be expanded to adolescents under the age of 18 (moving it up from 13).
By lifting the age threshold, sites that did not presently have the burden to age verify (mainly through a credit card) would now have to. Consequently, it would restrict the free speech rights of adults who might otherwise easily, without cost, without betrayal to their anonymity, go onto "tween" sites (like the Rolling Stone, or Wired, or the Jon Stewart Show). The practical effects would be especially harmful to small businesses, which now can place a virtual-shingle out to compete globally, with little or no cost.
Senator Rockefeller quipped that Szoka's testimony "wasn't particularly helpful." I can only surmise that what Senator really wanted Szoka and the others to say was that the First Amendment posed no legitimate challenge to make their law "better."
That thought is hardly new. Since the Sedition Act in 1798, the U.S. government has long wanted to make the First Amendment "work better" - for itself, that is.
A current exercise to make the First Amendment "better" is happening now as I write this blog. The FCC is looking at how to "reform" the media, making it a "richer," more democratically-engaging experience for Americans. Framing the gravity of the situation, the FCC quotes the Knight Commission, stating:
The digital age is creating an information and communications renaissance. But it is not serving all Americans and their local communities equally. It is not yet serving democracy fully. (emphasis added)
The Agency and its followers fret that America just isn't making the "right" media decisions (i.e., they listen to too much Rush, and watch too must Lost, and click-away from Frontline); and that broccoli journalism, as well as other forms of high-minded, CPB-like content, isn't finding its way into the average American's media diet. As exhaustively detailed by PFF's Adam Thierer, Berin Szoka and Ken Ferree in their recent comments before the FCC, numerous media-meddlers seek to remedy this dietary deficiency through direct subsidies / support; taxes / fees; "public interest" requirements; and WPA-like programs for struggling media outlets and out-of-work journalists.
Should one worry?
My wife, who is a journalist, says that no self-respecting reporter would work for an outfit that took direct support from the government. I'm not so certain. As media outlets try to compete with the digital revolution, the survivors will take refuge in the sustenance provided by the government's ever-welcoming teat. It's hard to say "no" when the foreclosure sign swings jauntily above one's head, you know.
Sadly, as concluded by PFF, the "reform" proposals would likely fail Americans instead of helping them, causing irreparable damage "that would destroy the important wall between State and Press and raise profound First Amendment concerns."
A core function of the independent media is to criticize and watch the government. Yet, who would trust any outlet whose sustenance depends on the government's open spigot for their continued viability? Do you honestly think beneficiaries of that sup will bite the hand that feeds them? Think again. Less, critical coverage will result.
Perhaps the most unsettling feeling one might get from the FCC's present exercise (or Washington's look-down-its-nose view) is the underlying judgment being made about meat-and-potato Americans. In a time when more voice reaches more people than at any time in history (I grew up with just three networks and two indepdent TV stations...in Chicago; today, the choice is virtually limitless), the unwashed media "is not serving democracy fully." Our choices just aren't - er, "right" (said with an Upper East Side voice). They cry out for reform, correction, rehabilitation. By smarter people than us.
Sitting at the bleeding edge of this need-to-meddle-for-our-own-benefit is Cass Sunstein - a close confidant of Barrack Hussein Obama; well regarded, Left-inclined intellectual for First Amendment meddling; and head of the Office of Information and Regulatory Affairs (OIRA), which has immense sway over the rules and regulations issued by Uncle Sam. In 2008, Sunstein witnessed an interesting approach to influencing public opinion when the government is behind the rhetorical 8-ball. In Conspiracy Theories, he proposes to use "cognitive infiltration" to break up extremist thought / groups by introducing idea diversity.
How does that work? Well, Sunstein notes:
We suggest a role for government efforts, and agents, in introducing such diversity. Government agents (and their allies) might enter chat rooms, online social networks, or even real-space groups and attempt to undermine percolating conspiracy theories by raising doubts about their factual premises, causal logic or implications for political action.
That sounds disturbing enough. Yet, perhaps more nefariously, Sunstein goes on to add that the odds for achieving "diversity" will see "higher returns" where, among other methods, government officials "participate anonymously or even with false identities" to stir things up.
Covert storm troops to undermine free speech of exercised Americans? This tactic takes a page from J. Edgar Hoover and Richard Nixon at their most paranoid and conniving. And, that just doesn't sound right.
I am not surprised, however. The First Amendment scares Washington, not to mention the ACLU. That's why policymakers perennially feel the need to "improve" upon it. A positive right - one created to mitigate the First Amendment's clear anti-government limitation - can be more easily shaped. It allows politicians to determine the "public interest" instead of the public doing that for itself.
That said, undermining the First Amendment, no matter what the manufactured crisis may demand, does not sound like what "better angels" should endeavor to accomplish for the rest of us. It is repugnant to free speech and belies respect to Americans that use it; it imposes First Amendment pain with only tyranical gain.
I think this is wrong, against our values. The First Amendment is hard for a reason. It keeps our "better angels" honest.