Category Archives: rights

Rule of Law

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Earlier I wrote about government and free speech regarding a Wall Street Journal op-ed about the FCC’s proposed interference with the business of the Internet.

Buried near the end of the op-ed, though, was a remark that needs greater notice than was present in the piece.

Mr Wheeler’s FCC claims “there are no rules on the books to prevent broadband providers from limiting Internet openness by blocking content or discriminating against consumers and entrepreneurs online.”

The WSJ denied the charge,

But this is false. …the Federal Trade Commission already has ample authority to go after businesses that mistreat customers, online or off[]

but that’s beside the point.

We’re not Europeans. Neither are we, generally, Progressives. We have no need of a government’s rule to tell us every jot or tittle of what we are permitted or not permitted to do. We are American citizens; we are fully capable of deciding for ourselves, in the absence of the “guidance” of our Betters, what we might do or not do.

Government and Free Speech

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This time in the milieu of the Internet. And it’s not good, if the FCC’s latest “rule” proposal is allowed to stand.

Federal Communications Commission Chairman Tom Wheeler went ahead with his proposal on Thursday to give his agency the power to decide whether the terms and prices of broadband Internet services are “reasonable.” That’s bad enough as political discretion, but according to dissenting Commissioner Ajit Pai, regulators from every state will also be able to get into the act.

Government, once again, is deciding that it’s better suited to determine what a proper business arrangement is than the participants in the business. Only this time, since it’s the Internet that’s at stake, and the Internet plays such an enormous role, not only in business per se, but in speech of all forms—political, business, communication of innovations, the list goes on—the FCC is plainly inserting itself into the business of government determiner of what appropriate speech is.

If this rule stands, government will be able to pass on the Internet-based “business arrangements” regarding, oh let’s say, a documentary called Hillary: The Movie. Worse, it’ll be able to do this, not overtly because it objects to the politics of the movie, but more sotto voce, under the guise of objecting to the appropriateness of the business arrangements surrounding its Internet distribution. And by allowing the States to get in on the censorship, the FCC is looking to broaden government…management…of permissible speech.

The Wall Street Journal‘s op-ed points out a myriad of other objections to this harebrained scheme of the FCC, but this will do for this post.

Another Correct Court Ruling

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And, again, it comes in the area of free speech.

The 7th Circuit has ruled in Wisconsin Right to Life State v Timothy Vocke, a Wisconsin case concerning the permissible State government-imposed limits on political speech that Wisconsin’s law and a host of implementing rules are unconstitutional.

The Court’s unanimous ruling held, among other things, that

  • the state’s corporate-speech ban is unconstitutional under the Supreme Court’s Citizens United ruling
  • the cap on the amount a corporation may spend on fundraising for an affiliated political committee is unconstitutional
  • the lengthy disclaimer requirement under state Government Accountability Board’s regulation is unconstitutional as applied to 30-second radio ads and ads of shorter duration
  • the statutory definition of “political purposes,” section 11.01(16), and the regulatory definition of “political committee,” GAB § 1.28(1)(a), are unconstitutionally vague and overbroad in the sense meant by federal court precedent.

This also is likely to cut the underpinnings out from beneath the Democrats’ secret John Doe investigations of exactly these sorts of organizations, which Star Chamber “investigations” are centered on exactly these now acknowledged to be unconstitutional grounds.

The ruling can be seen here.

Weak of Moral Character

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Monday, the Supreme Court upheld the idea of public prayer at the opening of (Greece, NY) town board meetings (and by extension at the opening of government meetings generally). The ruling, Town of Greece v Galloway, can be read here.

Justice Anthony Kennedy, writing for the 5-4 majority, wrote in part

From the earliest days of the Nation, these invocations have been addressed to assemblies comprising many different creeds. These ceremonial prayers strive for the idea that people of many faiths may be united in a community of tolerance and devotion. Even those who disagree as to religious doctrine may find common ground in the desire to show respect for the divine in all aspects of their lives and being. Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.

Justice Elena Kagan demurred from that view of the fundamental adulthood of American citizens. She wrote in dissent

…Greece’s town meetings involve participation by ordinary citizens, and the invocations given—directly to those citizens—were predominantly sectarian in content. … So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.

Because in the Progressive view of Americans, we don’t have the strength of character, the firmness of moral belief of an adult human being. Like children, we need continual instruction by government in what to believe, we need continual stiffening by government to hew to the correct line. We can’t do these things on our own.

Once again, Progressives are projecting their own failings onto others. (And that bit about “distribut[ing] government benefits:” another Progressivism—that’s the purpose of government.)

Another Thought on Privacy

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David Kravets, writing in ars technica had one concerning a couple of cases coming before the Supreme Court dealing with the legitimacy of warrantless searches of cell phones and other digital devices pursuant to an otherwise legitimate arrest.

President Barack Obama’s administration and prosecutors from states across the country have lobbied for police officers to be able to search arrestees’ gadgets—at or about the time of arrest—without a warrant. Such action, however, demands an examination of the Fourth Amendment’s protection against “unreasonable searches and seizures.” If nine out of 10 American adults own mobile phones and the devices have advanced to become virtual extensions of our personal and private lives, at what point does law enforcement’s access to their call logs, photos, and cloud-hosted data become “unreasonable” invasions of constitutionally protected privacy?

Indeed. It’s also necessary to keep such ancillary searches in context. The courts long have held that when a man is arrested, the police can pat him down, even do cursory inspections of his car if that’s where he was arrested—look in the trunk, for instance—to be sure he has no weapons that would enable him to harm the arresting officer(s) or devices that would facilitate him attempting to escape from them.

It’s clear, though, or it should be clear, that the electronic contents of a cell phone or of a laptop or…can present no danger of either of those possibilities.

It’s also apparent that the two characters in the cases before the Supreme Court are unsavory at best. It’s also clear that the cursory search of the car David Riley was driving at the time of his arrest was both legitimate and fruitful—the police found weapons secreted in it. However, the persons’ unsavoriness is not an excuse for proceeding with the illegitimate, in my view, searches of their cell phones—there were no dangers to be found in those electrons; a search warrant should have been obtained before the searches conducted.

If such warrantless searches are allowed, what’s to stop government from expanding the scope to the less unsavory among us? To the entirely savory, other than those of whom government disapproves (IRS, anyone)?

There wasn’t even any danger of evidence contained in the phones being destroyed before the warrants could be issued; the cells were safely in police custody.

In one of the two cases, Solicitor General Donald Verrilli Jr made explicit a part of the Federal government’s rationale for such warrantless searches:

[J]ustices “should not deprive officers of an investigative tool that is increasingly important for preserving evidence of serious crimes based on purely imaginary fears that police officers will invoke their authority to review drug dealers’…’appointments with marital counselors’ or armed robbers’ ‘apps to help smokers quit.'” (Verrilli was citing examples lodged with the court by the Center for Democracy & Technology.)

Yet in making this argument, Verrilli has shown his utter lack of understanding of our social compact. Our Declaration of Independence and our Constitution are designed to carry out exactly that prior restraint, because ultimately government cannot be trusted to restrain itself. This is what John Adams was talking about when he wrote to his wife

Liberty, once lost, is lost forever.