The Enduring Threat of Net Neutrality

The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary. – H.L. Mencken

No regulatory issue in memory has been quite like that of “net neutrality.” A solution in search of a problem, bankrolled and of early and particular economic benefit to two companies, and a regulation that threatens to give government sway over an industry where it had none before, network neutrality by regulation defies logic, history, and the way the world works. Other than that it’s one terrific idea.

Net neutrality was conjured up by an alliance of left-wing activists, Democratic commissioners of the FCC, and certain Internet companies and their trade associations. The regulations that followed have been on a devolutionary path, such that what was merely bad (net neutrality under Title I) became, in 2015, very much worse – net neutrality under Title II. Continue reading “The Enduring Threat of Net Neutrality”

The Udall Amendment: When Politics Mean More Than the Constitution

It came as no surprise when, in June, Tom Udall (D-N.M.) and 41 other U.S. senators, Democrats all, proposed a campaign finance amendment to the U.S. Constitution.  Ever since the Supreme Court’s Citizens United decision in 2010, Democrats and their surrogates in the media and allied advocacy groups, worried that the case would work to their political disadvantage, have been on a mission to find some way around it.

So what’s the amendment all about?  S.J. Resolution 19, as it’s called, proposes to allow Congress to regulate contributions to candidates for federal office, and to extend similar power to the states for candidates running for state office.

Language in the joint resolution avers that it would amend the Constitution “relating to contributions and expenditures intended to affect elections.”  But as Floyd Abrams, easily the most distinguished First Amendment expert of our time, said in congressional testimony, the amendment would have been more revealing and accurate if it had said that “it relates to limiting speech intended to affect elections.”

And there, of course, is the rub, since the most highly protected form of speech is political speech.  For the Senate sponsors of this amendment to have clearly and unequivocally stated its impact would have required more candor than they possess, and in addition put themselves in direct conflict with the First Amendment, as found in caselaw, and free speech, as understood by people generally.

Given that this amendment stands no chance whatsoever of making it past all the hurdles that stand in the way (2/3 majorities in both the House and Senate, and ratification by 3/4 of the states), one might wonder why the effort is being made, or why anyone should even bother talking about it.

The answer to the first question is that it’s an election stunt meant to rally the Democratic “base,” while the answer to the second is that sponsorship of this amendment shows that when politicians fear for their own, or their party’s, chances at the ballot box, anything, even the trashing of the most important part of the Bill of Rights, is fair play.

Much as the primary villains in this affair are Democrats and their allies, things might not have gone this far but for the shabby reporting and commentary that has come in the wake of the Citizens United decision.  As detailed in a piece published in Mediaite by Dan Abrams, even mainstream media like the Washington Post and New York Times have made egregious errors in their references to this case:

But reading the New York Times, Washington Post, and watching MSNBC in particular, it is hardly surprising that the public would be confused.  On January 9 (2012), in a front-page piece on the influence of Newt Gingrich supporter Sheldon Adelson, the Times inaccurately reported that Adelson’s $5 million donation to a pro-Gingrich Super PAC “underscores” how the Citizens United case “has made it possible for a wealthy individual to influence an election.” … The opinion, in fact, did nothing of the sort….

The Washington Post has done no better.  On January 11 (2012), Dana Milbank, writing of Adelson’s $5 million donation … asserted that it was “the Supreme Court’s Citizens United decision which made such unlimited contributions possible.”

In fact it was the 1976 case, Buckley v. Valeo, which established the right of wealthy individuals to spend unlimited amounts of their own money for independent political speech.

Some critics of Citizens United point out that with this case the Court undid some earlier decisions, most importantly a challenge in 2003 to the so-called McCain-Feingold law (McConnell v. FEC), where the Court narrowly upheld the constitutionality of that law.

But several years before Citizens United, the Court largely nullified a major section of its McCain-Feingold decision when it ruled, in FEC v. Wisconsin Right to Life, that unless an “issue ad” expressly urged the support or defeat of a candidate it was unconstitutional to forbid its airing on TV close to the time of a primary or general election, something forbidden by McCain-Feingold, and the very issue that was at the center of Citizens United.

Finally, many advocates of campaign finance regulations have mocked the Citizens United decision for empowering corporations with First Amendment-protected free speech rights. But in fact the cases that confirmed First Amendment protection for corporations are decades old, most notably Central Hudson in 1980.

It would be possible to have an honest debate about the constitutionality of campaign finance laws, but not when the facts are twisted and the true motives of the disputants hidden from view.

 The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils. A version of this article was first  published by USA Today, on July 13, 2014.

The First Amendment’s Fleeting Friends

If anyone has seen his share of First Amendment friends and foes over the years, it’s Floyd Abrams, that iconic New York attorney whose name can hardly be uttered without the words “First Amendment” somewhere in the same sentence.

But, as Floyd pointed out in a new Speaking Freely opinion paper this week, the real problem facing the First Amendment is not outright opposition – everyone claims to “care about” this constitutional guarantee, after all.  The problem lies with many of its “friends,” who invoke the First Amendment at their convenience to further their own agendas, without much regard for the underlying principle itself.  And who then sit out First Amendment challenges that don’t suit their ideological taste. 

Liberals and conservatives are equally guilty of being fair-weather friends, Floyd notes.  “Liberals vigilantly seek to protect the rights of adults to receive not-quite-obscene materials on the Internet, but seem all but indifferent to UN-sponsored efforts to ban the supposed ‘defamation’ of Islam.  Conservatives care deeply about such efforts to stifle speech, but offer little if any protection to American students when they mouth off outside of their schools.”

Floyd poses a telling question for each ideological camp: Would conservatives be so adamantly opposed to a return of the Fairness Doctrine if talk radio were leaning left?  Will liberals get over their long-held belief that money is inherently corrupting of political speech, now that candidate Obama raised staggering amounts of cash (while refusing federal funding) to reach the White House?   

The title of Floyd’s opinion paper says it all: “First Amendment Deserves More Than Fleeting Friends.”  Liberals and conservatives alike, take heed – even if it hurts.