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Friday, February 06, 2009
Soft Kills and Hard Knocks
Beware the "soft kill."
In warfare, a "hard kill" is an action that destroys a threat to your forces; a "soft kill" disables it temporarily. Sometimes a "soft kill" is the best you can do; for example, in electronic warfare, it's not always possible to destroy a hostile radar installation, so one must be satisfied with jamming it. In other cases, a "hard kill" is possible, but is considered undesirable for reasons the immediate action can't explain; for example, the target might be viewed as a valuable postwar resource. But in all cases, the "soft kill" leaves the target intact, capable of mounting a renewed threat to your forces and allegiants. Therefore, one must remain aware of its capabilities even after it's been "defeated."
Failure to be alert to a threat's potential after you've bypassed it can cost you more than having lost the original action. This is especially the case in law and politics.
Gun enthusiasts are particularly keen to this principle; ignoring it has cost them far more than they like to think about. United States v. Miller, 1939 is a case in point. Jack Miller, the defendant charged with violating the National Firearms Act because he hadn't paid a $200 tax for the privilege of shortening a $10 shotgun, went free by virtue of the district court's dismissal of the case on Constitutional grounds. However, those grounds gave the federal government a right of appeal to a higher court, specifically to preserve the Act, even though Miller, who had disappeared, could no longer be prosecuted practically. Miller's lawyer failed to participate in the appeal, so the government won by default, and the Act was permitted to stand.
Similarly, the National Rifle Association, nominally committed to the defense of the right to keep and bear arms, has repeatedly compromised on principle -- for example, by accepting the 1986 Volkmer-McClure Act, which criminalized the manufacture of automatic weapons -- as "the best we can do for now." The wording of that Act justified it on the grounds of a full-auto weapon's lethality -- the very first time a gun had ever been the target of federal legislation because it does what it's designed to do. Prior federal restrictions on firearms had always been fan-danced as "revenue-raising measures." Volkmer-McClure created a logical bridge to the 1994 Assault Weapons Ban, which will shortly be reinstated by Congress, and numerous states' laws and proposed laws that attempt to drain the life out of gun rights by making them too expensive to own, use, or maintain.
In consequence, gun enthusiasts are constantly being challenged with logically absurd rhetorical thrusts such as "Why would you need an [insert targeted weapon, ammunition, or accessory here] for hunting?" To respond to such an insincere query concedes that the Second Amendment is about hunting, when in fact it's about preserving the ability to overthrow the government at need. That's what you get from a compromise on principle.
Americans have failed to defeat statist initiatives, including many that are expressly forbidden by the plain words of the Constitution, in a permanent way, when it appeared that they could more cheaply and easily protect some narrow personal or provincial interest by yielding on principle. Thus, they win a temporary local victory, leaving the high legal ground in the adversary's hands and a more desperate battle to be fought by their descendants.
We face another such possibility from the Democrats' drive to reimpose the Fairness Doctrine.
The First Amendment forbids federal abridgment of freedom of expression. It's not restricted to "political speech." Nor does it make exceptions for "profanity," "obscenity," "community standards," or other such bilge. Nor does it say in the fine print that a medium that can reach large numbers of people scattered over a large region is therefore a proper subject for legislation or regulation. Yet all these rationales have been employed to rationalize government control of radio and television programming -- and well-meaning Americans, ever since the Federal Radio Act of 1927, have let the statists get away with it.
The Fairness Doctrine, which purports somehow to make broadcasting more equitable by compelling broadcasters to provide "equal time" to all sides of a political or public-policy debate, is really aimed at the imposition of control on all broadcast matter. Under a Fairness Doctrine standard, the FCC would have the unreviewable power to impose penalties, including fines and license revocation, on a broadcaster that failed to satisfy its criteria for "balance." Such criteria are, by their very nature, variable, idiosyncratic, and non-objective. They would permit the FCC to criminalize any statement that displeases a majority of the current commissioners.
If this isn't a complete abrogation of the First Amendment, your Curmudgeon can't imagine what would suffice.
The danger lies in this: We have already tacitly conceded that there are exceptions to freedom of expression in large-audience media. In particular, we've permitted regulation of that which a sufficient number of people deem "offensive." (Remember this bit of manufactured outrage?) The principle of freedom of expression is no longer watertight...and holes in our rights have a way of growing over time.
You think not? You say can draw "reasonable" boundaries around what people can say and do for popular consumption, without undermining the "larger purpose" the First Amendment was crafted to uphold? Similar arguments were made for the McCain-Feingold Bipartisan Campaign Finance Reform Act, the 1964 and 1991 Civil Rights Acts, and the graduated income tax.
(Most poignant of all was the puncturing of property rights by the assertion that "public property" doesn't require public use, merely "a public purpose." Ask Suzette Kelo how that notion worked out.)
A "soft kill" of the Fairness Doctrine is possible. Numerous compromises have been suggested. But any compromise would leave the underlying rationale -- that government may regulate, license, and penalize private expression over privately owned and operated media in the name of "the public interest" -- untouched. That rationale is where the danger lies. It could easily be extended to the medium you're reading right now.
Evil is abroad. Well-meaning people have raised evil men to the levers of power in these United States. Americans haven't yet grasped what those men plan to do to us...but if we fail to defend the principle of genuinely unrestricted freedom of expression, without exceptions and regardless of transmission medium, we surely will. Unless we insist on that principle in its full and absolute power, we can't hold off the Fairness Doctrine for very long.
Comments
If, as is said, our United States was an experiment in governing as a Constitutional Republic, the experiment concluded some time ago. Commentary by patriots is, necessarily, an analysis of data teased from its charred “black box”.
Posted by Ol' Remus on 02/06/2009 at 04:49 PMPorretto, I’ve already emailed my delegation about the FD short and simple, “No to Fairness Doctrine,” we the people have a right to say anything we want.
Posted by on 02/06/2009 at 07:24 PMI continue the skirmishing on a daily basis: whenever anyone unthinkingly repeats the erstwhile American boast, “it’s a free country,” I make the truthful reply, “No, it isn’t.”
Posted by on 02/08/2009 at 09:20 AM
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