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Saturday, March 05, 2005
A Converging Attack
There are a multitude of petty annoyances and deliberate nips at one's serenity concomitant to being a mighty intellect and a staunch champion of freedom. (Trust your Curmudgeon when he says that you wouldn't want the job.) One of the worst is the never-ending stream of demands that one explain the self-evidently obvious to persons self-evidently determined not to comprehend it. It's the sort of offensive that can rapidly reduce one to quietism: the resolve to stay forever behind a barred door with a large-caliber weapon at the ready.
Recent sallies against freedom of expression by two Republican legislators have called forth the inner bluenose in quite a number of otherwise good and sensible conservatives. It's as if a little devil hiding in their backbrains were whispering to them, "now that the GOP is on a roll, you can get some action on the stuff that really frosts your buns." Your Curmudgeon would have liked to believe that more people were alive to the implications of any kind of censorship. Apparently his Wishful Thinking Center needs another shot of novocain.
Heads up, people: it's been tried. The most recent attempt had the interesting consequence that an "obscene" movie was whatever five Supreme Court Justices said it was -- and they had to watch each and every movie personally to determine it.
Profanity, obscenity, and luridly sexual entertainment, while there is currently a mild consensus -- there was once a stronger one -- about their offensiveness, cannot be proved to be harmful in and of themselves. There are millions of people who partake of these things, very few of whom sustain objectively demonstrable damage or go on to commit crimes. Therefore, the contention that these kinds of entertainment harm the body politic is unsupported by the evidence.
Political freedom under limited government imbeds as a principle that the State may act to curtail the individual's freedom only insofar as the practices to be banned or limited produce demonstrable harm -- not merely offense -- that can only be averted by legislative action. Inasmuch as no case that harm flows from the availability of salacious entertainment can be sustained by the evidence, there is no sound argument that the State should act.
More, the First Amendment to the Constitution of the United States bars Congress from censoring private expression, unless one wants to take the extreme position that only audible speech and inked paper are covered by "freedom of speech" and "freedom of the press." So not only can no case be made that Washington should act; there's an absolute prohibition against it.
Quod erat demonstrandum. The evidence is unassailable and the principles and logic are unimpeachable. You'd think the matter would have been settled long ago. But recent statements by Federal Election Commissioner Bradley Smith have made it quite clear that the game isn't over -- that in fact, the game is about to become much, much rougher:
Transcript of FEC Commissioner Bradley Smith interviewed on NRA News, March 4, 2005NRA NEWS: It was back on October 13th of 2004 when I believe we last spoke to FEC Commissioner Bradley Smith, and, uh, lo and behold the other day I see a story on, uh, NEWS.COM about the coming crackdown on blogging.
Well, you heard about it months ago, but the FEC has been hard at work trying to figure out how to implement this judge’s ruling saying that, uh, you know, the Internet isn’t exempt from McCain-Feingold.
Joining us now to talk about this once again, FEC Commissioner Bradley Smith and, Commissioner Smith, thanks for coming on the program again.
COMMISSIONER SMITH: My pleasure, Ken.
NRA NEWS: Alright, so where do we stand now, I mean, months ago when we talked to you the judge had just issued her ruling uh, and, and, we talked and I asked you, you know, could we see a day when, when you guys are going through blog by blog trying to find out who gets the media exemption and who doesn’t? And you said, “Yeah, that’s possible...” Is that still, uh, is that still what we’re looking at?
COMMISSIONER SMITH: It certainly is. Um, what will happen is later this month or early next the Commission will put out a Notice of Proposed Rulemaking, that will have some potential rules for regulating the Internet. I, I don’t know at this point myself what will be in those rules, because I don’t know exactly what all of my colleagues were thinking, but again I note that we didn’t have enough votes to muster up an appeal of the judge’s decision, uh, on this particular issue, so obviously, uh, half of my colleagues at least feel that we should be doing more regulation of the Internet.
NRA NEWS: I know you can’t, uh, I know, I understand that you can’t, uh, tell what your other Commissioners are thinking – can you tell us what the heck the judge was thinking??...
COMMISSIONER SMITH: [laughter]
NRA NEWS: ...when she issued this ruling? I mean, we’re here with Jim Geraghty, who writes TKS on NationalReview.COM and, um, you know, here are two organizations that, uh, very clearly talk a lot of politics, Jim writes about politics on a daily basis, we’re discussing politics on a daily basis, so, I’m guessing that come these new rules, people like Jim and I could be directly affected by these?
COMMISSIONER SMITH: Well, let me tell you some of the potential ramifications. I mean, some of the folks now, uh McCain and some of his allies, are out saying, “Well, this would only apply to paid ads.” That’s ju—the FEC already treats paid ads as subject to the act. But nothing in the judge’s decision limits it to paid advertising, and it, she says anything that’s coordinated, for sure we have to regulate. Now, what is coordinated under FEC regulations? Any republication of campaign material counts as a coordinated complication. That means, for a blogger, if you put up anything, or ah, from a campaign onto the blogsite, that’s going to be republication of campaign material. If you get an email from a campaign because you’re on their list, and you then forward it to 50 or 100 friends, that would be potentially subject to the act.
NRA NEWS: Alright, let me give you, um, let me give you um, a uh, a hypothetical. Say somebody gets an email from a candidate, they put it up on their blog to discuss it in a critical light, obviously they’re not a supporter of the candidate, but they’re saying, you know, “...look at this, they’re wrong here, they’re wrong here, they’re wrong here, they’re wrong here...” You’re saying that that could still count as a uh, a coordination with a campaign and that could be seen as a campaign contribution?
COMMISSIONER SMITH: Well, we’re going to have to get into that kind of, uh, I mean, here’s what you’re going to say: Let’s suppose it’s clearly attacking the candidate that’s mentioned...
NRA NEWS: ...Yeah...
COMMISSIONER SMITH: But, but republishing his material. Would we say that that’s a contribution for the other candidate? Um, maybe not, because he didn’t coordinate anything with the other candidate. But what if it’s NOT QUITE CLEARLY attacking the candidate, but it’s kind of analyzing the proposal, it’s [inaudible] there’s some negatives. In other words, you start getting into these ‘line drawing’ propositions that are going to be very tough to use. And of course, if you’re praising the proposal, or praising the candidate, then you’re, then you’re going to clearly going have a problem.
NRA NEWS: Alright, and, and, my next question, I know Jim wants to jump in here too, but...How Big is the FEC Going To Grow? Uh, because [laughter] because obviously you’re going to have to hire hundreds of thousands of people to start monitoring all of these websites?
COMMISSIONER SMITH: Well, uh, Ken I have no idea how some of these things would be enforced [laughter background]. But that’s one of the kinds of, uh, problems in the, in the thicket that we have waded into, or that we are wading into. Let me give you another example. If you link to a site, that could be deemed to be a coordinated contribution to the site. Now you might say, “...well, what’s the cost of linking to a site?” or, “...what’s the cost of sending out...forwarding something by your email?” It’s virtually nothing. But there’s two issues here: One is, of course: if somebody has made the maximum contribution, even a small, uh, addition would put him over the legal limits for contributing to the campaign.
The other thing would, uh, be that the Commission has often valued contributions not by the amount you spend, for example, corporations cannot use their resources to help a campaign to raise money. But we’ve said, “...let’s suppose a corporation uses 20 minutes of a secretary’s time and thirty dollars in postage to send out some letter...” We don’t value their contribution on the basis of the amount of time spent and the $30 postage; we value it based on the value to the campaign, in terms of money raised, and so on. And if we take that approach and apply it to the Internet, then even these very nominal expenditures that people make are going to count as pretty big violations of the act.
JG: Um, Commissioner it’s, uh, Jim Geraghty with National Review. Uh, probably one of the guys who would be directly uh, tar---, you know, might as well paint a bullseye on my back now by this regulation....uh, I’m curious...U.S. District Judge Koller Cotella was the one who instituted this. Is it fair to say she doesn’t...quite...get the Internet? And how these things work, and how blogs work you know, like, is...is this you know, has just...doesn’t understand the issue and thus decided, “OK...it’s a good thing to be regulated.” ??
COMMISSIONER SMITH: Well, I, I don’t want to comment on, on Judge Kollar-Kotelly’s opinion, I mean, it speaks for itself. She orders us to regulate the Internet, again what I point out is -- it is in no way limited to paid advertising. In fact, it would be contrary to the tone of the opinions limited only to paid advertising. In another part of the opinion, she struck down one of our regulations where we exempted unpaid advertising. So, I, you know, this was, it’s – it’s in no ways limited to unpaid advertising. Beyond that, I don’t want to comment on what she was thinking, her opinion, I guess, can speak for itself. Uh, but it requires us to do some regulating here, and we did not have the votes to appeal that portion of the opinion.
Are there any readers who still don't appreciate the stakes here? On the pessimistic assumption that there are, your Curmudgeon will put it in the simplest, plainest possible terms:
- There are Republican majorities in both houses of Congress, put there by an electorate concerned principally about national security, secondarily about the economy, and hardly at all about sex on cable TV or political commentary on the World Wide Web.
- Those majorities are now threatening to veer away from the above substantive issues and concentrate instead on limiting freedom of expression in the name of "decency." See the linked article on Senator Ted Stevens and Congressman Joe Barton for details.
- The Democrats and their annex in the Old Media will, quite correctly, frame this as a betrayal of the electorate's expectations and a threat to free expression. Some percentage of voters will be inclined to accept the argument, and will either:
- switch allegiances, or:
- stay home next time.
- The GOP majorities will evaporate in 2006 and 2008.
- The new Democratic majorities, put in place to safeguard free expression, will more or less ignore the new forms of censorship -- they can find ways to use them against the Republicans, doubt it not -- and instead set to work on what really gets their gonads in a lather: emasculating the military, raising taxes and regulating every form of economic activity under the Sun.
It doesn't matter whether you're a free marketer, a bluenose, a porn freak or a modern-day Voltaire: once it has started, this is how it always ends. If you have the slightest regard for principle or for any vestige of freedom, you must stand fast against this new assault on freedom of speech.
Your Curmudgeon will stand fast:
- He will ignore any attempt to regulate Eternity Road.
- Any agent of the State who attempts to coerce him in this regard will be met with force -- lethal force.
- Whatever the consequences might be, he will accept them all.
Who will stand with him?
The Tree of Liberty from time to time must be refreshed with the blood of patriots and tyrants. -- Thomas Jefferson
Comments
As I’ve said before, no Liberal could ever talk me out of being a conservative, but some of the things put forth by “conservatives” has made me rethink my allegiance more than a time or two.
In any event, I no longer claim Republican as my political party, quit doing that a couple of years ago.
I’m just pissed. What political party is that?
Posted by Heather on 03/05/2005 at 12:49 PMActually this has nothing to do with conservatives.
The original campaign finance reforms legislation was a liberal push
THe McCain Feingold legislation was a liberal push
The attempt to ban 527’s was a liberal push
It’s pretty clear that the FEC wants nothing to do with this, but is using it as a reductio ad absurdium to show just how judge Colleen Kollar-Kotelly has erred.
Posted by Chris Byrne on 03/05/2005 at 01:59 PMOh and by blog post on this topic from yesterday:
The McCain Feingold campaign finance law is unconstitutional, and another step on the road to tyranny. It is, in present form, just able to be born; If the congress or the courts should attempt to extend it’s powers even further, it is our duty as free men to disobey.
Let me explicitly state what this flag should make clear.
Any attempt made to silence my political expression will be met with force, if necessary lethal force. I will accept the consequences of these actions, with the constitution, and inherent right as my defense.
Posted by Chris Byrne on 03/05/2005 at 02:02 PMI was speaking of the post Francis linked to in the first paragraph or so, at http://www.eternityroad.info/index.php/weblog/single/is_this_a_symptom_of_gop_overreach_or_two_legislators_semi_private_fantasy/
Nothing Democrats do surprises me anymore, I’ve long been disgusted with the donkey party. I do find it particularly disheartening when Republicans come up with equally dangerous attacks on freedom.
Not to mention the Patriot Act, TSA, and the fact that Bush signed off on McCain/Feingold’s little deal. Bush is a self proclaimed republican I believe.
Posted by Heather on 03/05/2005 at 02:35 PM...you bloggers are doin’ the Lord’s work indeed. My hope is that the absurdity of “Judge Judy’s” ruling will cause the Congress to realize the unintended consequences their Act has raught.
Posted by on 03/06/2005 at 02:23 AMWell Robert, since it’s very clear to most that the real purpose of campaign finance reform bills is actually to protect the incumbents from effective scrutiny or opposition,somhow I think that these are entirely intended consequences.
Posted by Chris Byrne on 03/06/2005 at 03:29 AMCB,
You’re correct...I meant “unintended consequences”. ;/Posted by on 03/06/2005 at 03:41 PMI have quieted my rage...but the heat and passion of my anger burns hot and bright.
As freemen are we to be expected to acquiesce once more as our Constitution is allowed to corrode due to the actions of men corrupted by power?
I stand with you Francis, Chris, Heather, and Robert. For if it comes to it, better to be made impoverished, imprisoned, or willingly forfeit ones life to advance freedoms cause, then to allow the light of liberty to be snuffed out by the very fools who swore an oath to protect same.
Posted by GuyS on 03/06/2005 at 03:41 PMI already made my choices on this, Francis. They’re the same as yours, Kim’s, Beck’s, and Geekwitha45’s.
If it comes down to it, I’ll do whatever it takes to circumvent any attempt to restrict what I say on the ‘Net. Same as I always have. Comes down to that, well… there’s worse hills to die on.
You’re mistaken in one thing though: McCain and Feingold aren’t conservatives in any sense of the term. In addition to being a grandstanding media whore, McCain is a Dhimmicrat in All But Name. He proved that with his gun voting. He’s proven he’s a totalitarian with McCain-Feingold.
It’s well past time to fire both of those sonsofbitches from the political arena, at the very least.
Luckily, I’ve never been a Republican, so I don’t have to disavow ‘em. All I have to do is spit on ;em.
Posted by Ironbear on 03/07/2005 at 03:39 AMThis, for anyone still wondering, is why I don’t vote for Republicans.
Say what you will about how much better off our country is with Bush’s foreign policy (and I’ve said plenty), that still doesn’t make the GOP trustworthy on _anything else_.
Much as some might try to spin it as a Democratic idea, the Incumbent Protection Act is not the creation of a party but of a class. It’s an act of war by the political class against the citizens, and neither major party has any rightful claim to moral superiority.
Posted by Matt on 03/07/2005 at 04:16 AMI consider “class” arguments to (in the general case, anyway) be bullshit, but then again, so is McCain (bullshit). I’d vote for Hillary for President before I’d vote for that SOB. Sure, he was a hero in ‘Nam. But his career as a Senator is the required Hero’s Flaw. He screws over military appropriations in order to get publicity for his pet Ted-Kennedy-Emulations, and for that alone (besides his media-whorage), he has earned my eternal disgust.
Posted by Dave on 03/07/2005 at 11:29 AMWell if someone else would run against him in Airzona, maybe we’d get somethign going. He’s been essentially unopposed in the last three elections.
Posted by Chris Byrne on 03/07/2005 at 03:12 PMIn _general_ “class” arguments are indeed bullshit. But there are cases where they are fully applicable, and I think this is indeed one of them.
Freedom of speech is not a partisan issue. It is not an issue in which one side of the aisle ganged up on us through overwhelming numbers and the other side fought the good fight and lost. Incumbent Protection has widespread bipartisan support, because whatever differences remain between Democrats and Republicans, on the issue of free political speech, their interests are perfectly aligned with each other and against us. In a just society every member of either house of Congress who voted for it would be taken out and shot.
And as for our fearless leader...well, as I said, I have no quarrel with his actions abroad, but as of the moment he signed that bill, the _most_ charitable interpretation is that he’s a lousy stinking coward when it comes to leading the United States at home.
Posted by Matt on 03/08/2005 at 02:24 AMEvery time the Republicans are in power they seem to spend a lot of time “stepping on their cranks,” as my father would put it.
Why can’t they be content with doing the big stuff, like cutting taxes and rolling back the great society stuff? Too hard. Instead they try to pander to their percieved base by doing dumb stuff. And in the process they lose my support, as well as the support of many others.
I wish they would hold to their oath to uphold and defend the constitution. Then again, if everyone in elected office truly did that, I don’t think I would care who had been elected.
Posted by david on 03/09/2005 at 06:28 AM
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