Obama’s legacy: The trashing of free speech

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No administration in memory has more thoroughly undermined freedom of speech and of the press than that of President Obama. From the White House itself, as well as the independent and executive branch agencies, have come a steady stream of policies, initiatives, and pronunciamentos that have threatened or compromised both of these constitutional rights. 

Indeed, the Administration’s example has inspired like-minded actions outside of the White House. For example, those Democratic members of Congress who actively encouraged IRS action against conservative nonprofit organizations before Lois Lerner turned to the task.

{mosads}And the 16 state attorneys general, Democrats all, who have recently embarked on a campaign designed to silence people who are skeptical of the evidence of anthropogenic global warming and/or its effects and remediation.

But it’s the example of the Administration itself that is most notable. Who could forget the performance of then-UN ambassador Susan Rice who, five days after the Benghazi attack that took the life of the American ambassador, went on national TV and blamed the attacks on an anti-Islam video shown on YouTube?

This followed by two days Secretary of State Hillary Clinton’s similar claim, and all of it despite the fact that senior Administration officials knew at the time that Benghazi was a premeditated attack that had nothing to do with the video

The Federal Election Commission is another federal agency that, by the actions of some of its commissioners, today threatens free speech. As reported by FEC Commissioner and former chairman Lee Goodman, the Commission has recently been the scene of tie votes on matters related to online political speech through such as websites, blogs, and podcasts.

The current chairwoman of the FEC, Ann Ravel, has expressed an interest in regulating such speech (even where the content is distributed online for free, as with videos posted on YouTube), despite the Commission’s vote in 2006 designating such content outside the purview of the FEC. 

Not to be outdone or forgotten, the Federal Communications Commission, like the FEC a so-called “independent” agency, has also done its bit by sweeping the Internet under its regulatory authority via the FCC’s party-line adoption of the Network Neutrality rules. 

In a much-anticipated decision, these rules were recently upheld by the D.C. Court of Appeals. The opinion briefly discussed, and dismissed, the argument that the rules violate the First Amendment. The court likened the regulation of Internet service providers (ISPs) under net neutrality to the common carrier rules under which phone companies operate. It’s a fine piece of reasoning for people who are both myopic and naïve.

The First Amendment problem with net neutrality isn’t that it mandates the equal treatment of all content. As the appeals court noted, without a hint of the irony, the ISPs are now and have been doing that. The problem lies in the fact and precedent of the FCC’s authority over what used to be the completely unregulated Internet.

Though it shouldn’t have to be said, it’s not a good idea to give government any kind of regulatory sway over those media whose primary civic virtue is in keeping the government honest. That the FCC has now captured the Internet will in time lead to further encroachments on it, with the argument being that such are in the public interest, and justly administered by the FCC by the precedent of net neutrality.

Particularly in Obama’s second term, journalism groups themselves have become critical of the White House’s press policies. In 2013, for instance, the White House Correspondents Association and other organizations protested the Administration’s exclusion of press photographers from news events with the president in favor of using the president’s own chief photographer. 

Also that year the Committee to Protect Journalists released a report titled “The Obama Administration and the Press,” which began with this paragraph:  

“U.S. President Barack Obama came into office pledging open government, but he has fallen short of his promise. Journalists and transparency advocates say the White House curbs routine disclosure of information and deploys its own media to evade scrutiny by the press. Aggressive prosecution of leakers of classified information and broad electronic surveillance programs deter government sources from speaking to journalists.”

Perhaps the earliest, and in many ways most regrettable, indication of the Administration’s lack of support for, and understanding of, the First Amendment came in 2010 during President Obama’s State of the Union address. With six members of the Supreme Court in the audience, the president delivered an unseemly (and erroneously exaggerated) critique of the Court for its decision in the Citizens United case.

What makes this episode so appalling is not just that it precipitated the wholesale politicization of the Court’s decision, a position that today seems to command the fevered support not just of the Democrats in the White House but of Democrats everywhere.

The appalling aspect is that, whatever one’s view of the proper role of corporations in the political process, the specific facts and issues at stake in the Citizens United case plainly and inescapably implicated the First Amendment.

As Floyd Abrams put it in a piece in the Yale Law Journal, “When I think of Citizens United, I think of Citizens United. I think of the political documentary it produced, one designed to persuade the public to reject a candidate for the presidency. And I ask myself a question: if that’s not what the First Amendment is about, what is?”

In 2016, the United States is a country riven by deep political and cultural divides, which is perhaps why we are seeing things today that even a short time ago would have seemed preposterously illiberal and outside the country’s revered traditions. Things like the growth and nurturing of identity politics and a grievance culture, and the imposition, especially on campuses, of a virulent form of political correctness, are both a symbol and a cause of our national angst. 

It is in this state of affairs that the most precious thing we have in our national heritage is the Bill of Rights, and the First Amendment especially. If, as some people fear, things in the USA go from bad to worse, history will not treat kindly those people who have not honored that plain truth.

Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.


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