Conservative Political Commentary

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Wednesday, May 19, 2010

Obama & Co.: Steadily Destroying the First Amendment

“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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – First Amendment to the Constitution of the United States

The First Amendment guarantee of freedom of speech and freedom of the press (including internet freedom) is in the crosshairs of the Obama Administration. There is underway a process designed to lead to close government control of “free” expression, leading by steps to a fascist-socialist-Marxist end, that is, government control of individual speech and public media.

It sounds so innocuous as explained by Obama people. It’s just government doing its job to protect the people from others who would take “unjust” advantage of their ability to publish, broadcast, blog, or otherwise convey their opinions and beliefs.

Supreme Court nominee Elena Kagan, widely viewed as a “moderate” court pick (not liberal enough for some of the radical left?) has written disturbing things about freedom of speech.

Cass Sunstein
Kagan hired Cass Sunstein as a Harvard Law professor in 2008, and declared,

“Cass Sunstein is the preeminent legal scholar of our time -- the most wide-ranging, the most prolific, the most cited, and the most influential. His work in any one of the fields he pursues -- administrative law and policy, constitutional law and theory, behavioral economics and law, environmental law, to name a non-exhaustive few -- would put him in the very front ranks of legal scholars; the combination is singular and breathtaking.” [1]

Sunstein now is President Obama’s “regulatory czar,” and is busy finding more things to regulate and implementing new controls.

While the views of Kagan and Sunstein on free speech might appear to be just an approach from a different direction, they really represent a profound shift from American constitutional tradition. As every conservative knows, liberals are in support of reinterpreting the Constitution to arrive at their desired outcomes, in this case, tending to silence opposition to government policies.

It is a serious and seriously wrong assumption that government has, constitutionally, the authority to control or regulate public discourse. Constitutional restrictions on free speech have traditionally been limited to actions which happen to involve speech, but which constitute an imminent danger of lawless action, generally violent action such as a riot or armed insurrection. Under the Constitution, expression of any and all views is permitted, though with some requirements as to general peace, e.g., parade permits, noise limits, etc.

The Supreme Court has held such restrictions on government (and the First Amendment is about what government cannot do, not what citizens cannot do or must do), for example:

…[B]y 1964 the Court could say with unanimity: “we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”[2] And in 1969, it was said that the cases “have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[3]

The First Amendment’s wording is very strong against laws restricting the freedoms it mentions. But the current administration has demonstrated that they have little to no regard for the Constitution, evidenced by the fact that virtually everything they are doing in domestic policy is either unconstitutional or constitutionally questionable.

Cass Sunstein is in favor of regulating the internet in order to achieve a “balance” of ideas.

Mondo Frazier at DBKP quotes Sunstein as follows”

“The sites of one point of view agree to provide links to sites of the other point of view. So if you’re reading a conservative magazine, they would provide a link to a liberal site. And vice versa, just to make it easy for people to access to competing views.

“Or maybe a popup on your screen that would show you an advertisement or maybe even a quick argument for a competing view.

“If we could get voluntary arrangements in that direction, it would be great and if we can’t get voluntary arrangements maybe Congress should hold hearings about mandates.” [4]
Frazier opines:

Sunstein verbally shuffles around and throws out the “aw shucks” smokescreen: “If we could do this voluntarily…”

BUT, as usual, a Cass Sunstein argument devolves to: if the people won’t do what’s good for themselves voluntarily, government will have to nudge them in the right direction–using the force of the government, of course.

Readers have a simple formula for determining loss of freedom: when a government official talks of “doing something for your–or the public’s–own good,” it means you’re about to lose part of your freedom. [5]

I completely agree.

Ed Lasky at American Thinker writes:

In the past, we have seen Barack Obama and his supporters attempt to chill any sort of scrutiny or criticism of him. Many of his records - whether they are transcripts from Occidental or Columbia - have not been released. He lost his senior thesis (on Soviet nuclear disarmament) from Columbia University (how likely was that to happen, given that he felt his own life was important enough to write an autobiography in his young 20s), and his records from his time in the Illinois state senate were “lost.”

Having records “disappeared” (as well as ditching embarrassing people from his past under the bus) was just one aspect of attempts to avoid scrutiny. Another manifestation of this dynamic, was the constant use during the campaign of the “race card” to brand any critics as racists or smear artists. [6]

In Sunstein’s book, Democracy and the Problem of Free Speech, he calls for a “New Deal” for “free speech,” analogous to FDR’s New Deal rather than the traditional “marketplace of ideas” approach of Justice Brandeis and others. [7] This indeed is a suggestion for radical change and is easily seen to violate the letter of the First Amendment, and the spirit as well.

Sunstein points out that New Deal laws and agencies restricted speech, for example, the SEC, the FCC, the NLRB, and the FTC. [8]. I would point out that many of FDR’s New Deal laws and agencies were unconstitutional. By the time the courts got around to declaring some of them so, the damage was already done. Sunstein leaves little doubt that he regards free speech as a “problem.”



Elena Kagan
Elena Kagan , as Solicitor General, represents the United States Government in Supreme Court Cases. Her job as an advocate requires her to argue the cases she’s given, but, for example, in U.S. vs. Stevens she seems to go well beyond her duty, to introduce a suggested new standard for protected speech.

In this case, she argued that a law prohibiting the distribution and sale in international or interstate commerce of materials depicting cruelty to animals (e.g. dog fights, cock fights, etc.) was constitutional notwithstanding an appeals court ruling against it. While she presented some good arguments, she also contributed this: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” [9]

A Chicago Sun-Times “Other Views” article (from Stop the ACLU) reports as follows:

Writing for the 8-1 majority, Chief Justice John Roberts called this claim “startling and dangerous,” adding: “The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.” [10]

Kagan’s view is that government may decide if certain speech is worth protecting.
“In Kagan's view, the main goal of First Amendment doctrine is not to maximize freedom or promote robust debate, but to ferret out impermissible motives for speech restrictions.” [11]

From the transcript on Citizens United rehearing oral arguments (09/09/2009):

CHIEF JUSTICE ROBERTS: But we don't put our -- we don't put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?
GENERAL KAGAN: I think a -- a pamphlet would be different. A pamphlet is pretty classic electioneering, so there is no attempt to say that 441 b only applies to video and not to print. It does – [12]

In her journal article, “Private Speech, Public Purpose,” Kagan describes three theories or approaches to free speech under the First Amendment. First, the idea that the First Amendment is designed to give maximum freedom and opportunity of expression, which is the traditional interpretation reflected in Chief Justice Roberts’s comment.

The second is, she says, “audience-based.” “Under this theory, restrictions on speech pose more or less danger depending not on the sum total of speech prevented, but on the extent to which the restrictions distort or impoverish the realm of discourse.” [13]

Of course, the preventer is government, taking to itself the power to control public discourse. This cannot be reconciled with the clear wording of the First Amendment, and must result in arbitrary control and suppression of speech the government finds unfavorable. This approach is favored by those who would reinstate the Fairness Doctrine or try to silence talk radio, etc. This seems to be the Obama Administration’s preferred view.

The third approach is a search for the motive of the governmental actor, which Kagan seems to think is really the main concern in First Amendment cases. “The application of First Amendment law is best understood and most readily explained as a kind of motive-hunting.” [14]

Thus she focuses here on the source rather than the consequences.

It must be emphasized that the views of Cass Sunstein and Elena Kagan are compatible with, if not identical to, the views of Barack Obama. When they speak officially, in their current capacities, they speak for the president. It is clear, then, as we already knew, that Obama is not a great advocate for freedom of speech, and is prepared to restrict it if it will help his agenda. One reason he appointed Kagan, as some have stated, is that he wants her on the Supreme Court to vote for him in case any of his policies are challenged.

In a position as important as Justice of the Supreme Court, there should be the highest regard for the Constitution, and for the responsibility of government to protect liberty rather than diminish it. Kagan fails this test, reinterpreting the Constitution through false assumptions (governmental authority to regulate public discourse and to determine what speech may be banned, etc.) Liberals believe that all problems are the responsibility of the federal government, and that the government has adequate authority to deal with them as they wish. The letter of the Constitution need never get in the way.

This is the Progressive view: government experts taking over decisions normally made by the people for themselves, including who may say what, and how they may say it. Their goal is to get everything into harmony with the great fascist-socialist program. The confirmation of Kagan should be resisted and, if possible, filibustered.



[1] “Elena Kagan,” DiscoverTheNetworks.org.


[2] FindLaw.com, “Freedom of Expression – Speech and Press,” citing New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[3] Ibid., citing Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).


[4] and [5] Mondo Frazier, “Obama Czar Cass Sunstein: Internet Mandates, Spread the Link Love,” 05/18/2010, DBKP – Death by 1000 Papercuts – DBKB.


[6] Ed Lasky, “Cass Sunstein's despicable ideas on regulating the internet” 07/12/2009, American Thinker.

cited by Death by 1000 Papercuts.

[7] Cass R. Sunstein, Democracy and the Problem of Free Speech. New York: The Free Press, a Division of Simon and Schuster, First Free Press paperback edition, 1995, p. 34, previewed at books.google.com.


[8] Ibid., p. 33.

[9] Quoted by Mark Tapscott, “Kagan: Speech is free if government decides it has more value than ‘societal costs’” WashingtonExaminer.com.
U.S. brief available here.


[10] Van Helsing, “Kagan’s Contempt for the First Amendment,” 05/13/2010, Stop the ACLU.

via Chicago Sun-Times, “Other Views.”


[11] Jacob Sullum, “The Bounds of Silence,” 05/12/2010, Reason.com.

[12] Transcript on Citizens United rehearing oral arguments, 09/09/2009, p. 66. Available here.

Cited by Bradley Smith and Jeff Patch, “From Banning Books to Banning Blogs: How the DISCLOSE Act will restrict free speech,” 05/18/2010, Reason.com.


[13] Elena Kagan, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” (1996), The University of Chicago Law Review, 413:63,
p. 425. Link is to a pdf file.


[14] Ibid., p. 414.

Photo: Dreamstime.com

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