Tag Archives: free speech

Free Speech

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Much has been made of President Barack Obama and his colleagues’ assault on free speech through his IRS and apparently through his FEC and SEC.  It’s important to understand that, reprehensible and dangerous to America as these assaults are today, Obama and his are simply channeling one of their Progressive forebears.

Here’s President Woodrow Wilson on the usefulness of government censorship, during another war in which the US was, at the time, participating only peripherally.  He wrote this letter to Congressman Edwin Webb in May 1917.

My dear Mr. Webb:

I have been very much surprised to find several of the public prints stating that the administration had abandoned the position which it so distinctly took, and still holds, that authority to exercise censorship over the Press to the extent that that censorship is embodied in the recent action of the House of Representatives is absolutely necessary to the public safety.  It, of course, has not been abandoned, because the reasons still exist why such authority is necessary for the protection of the nation.

I have every confidence that the great majority of the newspapers of the country will observe a patriotic reticence about everything whose publication could be of injury, but in every country there are some persons in a position to do mischief in this field who can not be relied upon and whose interests or desires will lead to actions on their part highly dangerous to the nation in the midst of a war.  I want to say again that it seems to me imperative that powers of this sort should be granted.

Cordially and sincerely yours,

WOODROW WILSON

The “recent action of the House” concerned a provision for explicit Federal government censorship of the press that Wilson had demanded be included in The Espionage Act of 1917, then under debate in both houses of Congress.  In the event, the Act was passed in June without the provision (the Senate having removed it by a one-vote margin) and signed into law by Wilson, even though he continued to protest the necessity of the “right” to commit censorship.

Authority to exercise censorship over the press is absolutely necessary to the public safety.

While Wilson didn’t get that power of censorship in the Espionage Act, he did get it in the Sedition Act of 1918:

Whoever…shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States…shall be punished….

The added invention of the Obama claque is that “some persons in a position to do mischief” are conservative persons who criticize the Obama administration.  Such criticisms are viewed by today’s Progressives as “disloyal” and “scurrilous.”  And plainly “abusive.”

Hmm….

Transparency and a Phony Scandal

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Here‘s some more on President Barack Obama’s phony scandals—the IRS one.

The House Oversight and Government Affairs Committee letter directly blames acting Commissioner Danny Werfel for the “systematic manner” in which his agency has “attempted to delay, frustrate, impede and obstruct” the committee’s investigation, despite his promising just weeks earlier to fully cooperate.

“The actions of the IRS under your leadership have made clear to the committee that the agency has no intention of complying completely or promptly with the committee’s oversight efforts,” wrote committee Chairman Congressman Darrell Issa (R, CA).

Indeed, Werfel has only delivered some 12,000 pages of the requested 64 million—less than 2 hundredths of a single per cent of the request—and many of those are merely duplicates or so badly redacted as to be useless.

This is transparency of Orwellian proportions.

Regulation and Free Speech

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A mandate of the Dodd-Frank financial law, [a] Securities and Exchange Commission rule requires companies that use certain minerals linked to violence in the Democratic Republic of Congo and surrounding region to file a report with the SEC saying what steps they took to verify the minerals weren’t taxed or controlled by rebel groups.

Never mind that those steps involve proprietary information.  Or that the government-mandated message would tar the companies, inaccurately, with a bigotry brush.

The National Association of Manufacturers and the US Chamber of Commerce, representing a broad group of businesses, in a hearing in federal district court in Washington said the regulation is unconstitutional because it forces companies to make disclosures linking their products to human-rights violations.

Paul Keisler, a lawyer representing the NAM and the Chamber, argued the rule is just a Scarlett Letter requirement and represents, further, government-mandated speech, not free speech.  Even so,

SEC Assistant General Counsel Tracey Hardin…argued the rule wasn’t different from advertising restrictions requiring fast-food restaurants to post the calories contained in their menu items or cigarette labels containing warnings about the dangers of smoking.

This, though, is just a cynical conflation of two widely disparate situations.  The one impacts directly the health (or not) of the user.  The other has no impact on the user, nor does it on the purported victims, since the minerals of interest here have a ready world-wide market, demonstrated by the high prices those minerals command.

Wait—there’s Citizens United.  But, no, Mr Corporation, that doesn’t count.  Just sit down and say the words Government gives you to say.

Did Lois Lerner Waive Her 5th Amendment Right?

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At the start of her testimony before the House Oversight and Government Reform Committee, Lois Lerner, the head of the IRS facility that ran the targeting of government-disfavored Americans and groups of Americans, made a brief statement, asserted her 5th Amendment right not to testify against herself, and then refused to testify further.  Lerner said, in her statement,

On May 14th, the Treasury inspector general released a report finding that the Exempt Organizations field office in Cincinnati, Ohio used inappropriate criteria to identify for further review applications from organizations that planned to engage in political activity, which may mean that they did not qualify for tax exemption.

On that same day, the Department of Justice launched an investigation into the matters described in the inspector general’s report.  In addition, members of this committee have accused me of providing false information when I responded to questions about the IRS processing of applications for tax exemption.

I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.

The bulk of the rest of her testimony was a statement that her counsel had advised her to plead the fifth, and she was doing so.

The Volokh Conspiracy (the above link) polled a number of professors with criminal procedure expertise on the question, including a bunch who were experts on the 5th Amendment in particular; their collected response was summarized thusly:

Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened.  If that view is right, Lerner successfully invoked her 5th Amendment rights and cannot be called again.  But this was not a unanimous view, it was not based on the full transcript, and there are no cases that seem to be directly on point.  So it’s at least a somewhat open question.

I’m not a lawyer, nor do I play one on the radio.  However, I disagree with these guys.  One of the things on which Lerner stands accused, as she acknowledged in her statement, is giving false testimony.  Her statement that she did not provide false information is an explicit statement about a fact of what happened under that accusation; it seems to me that she waived her 5th Amendment right in this area.

Furthermore, her broader statement of having “not done anything wrong…” in the context of her prior statements, which tie this claim explicitly and exclusively to the subject of that hearing, strikes me also as a statement about the facts of what happened under the implied accusations, and so again she seems to have waived her right—this time broadly so, concerning all of the subjects of the hearing.  This statement isn’t even akin to a plea of “not guilty;” it’s a statement of “I didn’t do the things related to this case about which you intend to question me.”  A “not guilty” plea is only a statement that the accuser cannot prove his case—which is all a not guilty verdict means: the state did not prove its case.

An Outcome of Big Government

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The proper lessons of the unfolding IRS scandal are twofold.  First, any effort to have the IRS police advocacy activities of social-welfare organizations is bound to be clumsy and prone to degenerate into either selective or broad witch hunts.  Second, the remedy is not to further limit political speech by nonprofit entities—which would certainly raise significant constitutional issues—but to encourage such speech by imposing fewer restrictions.

That combines with this:

There are two valid takeaways from the IRS scandal [and the other scandals: AP; Benghazi; Sebelius’ HHS “fund-raising” for Federal government’s health exchanges, just exposed this year].  First, it confirms that big government, whose power Obama is bent on expanding, cannot be trusted to behave properly.  Second, it calls for further investigation to determine how high up the chain the wrongdoing extends and whether the administration acted promptly to stop the targeting once it learned of that activity.

The need for an investigation and the firing of miscreants and subsequent jailing of those miscreants whose behavior was criminal certainly is warranted.  However, the IRS’ unconscionable behavior, and the Obama administration’s behavior vis-à-vis the other…scandals…, aren’t unique to the Obama administration.  These are the inevitable outcomes of Big Government, even when that government acts with the best of intentions.

Our Federal government needs to be drastically shrunk in size and scope, returning it to the small, limited, and so controllable, entity that it was designed to be.

A first step in this, in the present context, would be to do away with the distinction between 501(c)(3) and 501(c)(4) organizations—the legal distinction is wholly artificial and without meaning, anyway.  All entities engaged in otherwise tax exempt activities must be able to engage in some political activity.  That’s at the core of the speech clauses of the 1st Amendment:

Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There’s nothing in there about “except for when individual Americans or groups of them peaceably assembled are doing certain government-identified things.”

Subsequently, reform the tax code altogether to a single low, flat tax and thereby eliminate the need for tax exempt status for any organization.