Loose Canons

Obama’s Assault on the First Amendment

So unconstitutional only he would launch it.

By 2.24.14

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The First Amendment provides that Congress shall make no law abridging freedom of speech or of the press. That, in the view of President Obama, is no limitation on his ability to make such laws, even indirectly, through executive branch rules and regulations.

Throughout the 2012 presidential campaign, the IRS discriminated against conservative groups in investigating, delaying and denying the tax-exempt status many had applied for in order to do what similar organizations do on the left side of the political equation. It was enough for Obama’s operatives in the IRS to detect the use of words such as “Tea Party” or “Patriot” in a group’s name for it to be subjected to this discrimination.

When IRS official Lois Lerner was called to testify about this practice before a House committee, she took the Fifth. And during the Super Bowl halftime show, Obama told Bill O’Reilly there wasn’t a trace of corruption in the IRS’s conduct.

Last November, the IRS proposed a change to the tax regulations that would institutionalize this discrimination.

This all, of course, was in pursuit of the liberals’ goal of overturning the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which held that both labor unions and corporations had a free speech right to use their general funds for independent expenditures of a political nature. It said, among other things, that the First Amendment “has its fullest and most urgent applications to speech uttered during a campaign for political office.”

And that, in liberal thinking, opened a floodgate of corporate action where only union action had been permitted before. When the IRS got into the act, it quickly determined the obvious: that Dave Bossie’s outfit, Citizens United, is a nonprofit corporation. The best way to block spending by such nonprofits is to block them from becoming nonprofits, which has the effect of blocking most contributions to them. If you block their funding, they can’t spend anything on independent campaign ads for conservative candidates or against liberal ones. That’s what the IRS did in 2012, is doing today, and will continue to do when the new rules take effect.

But for those in the White House who want to control the press and free speech, the IRS isn’t the only game in town. The Federal Communications Commission, which controls the licensing of much of the broadcast media, is planning to invade the minds of every reporter and editor in the country and look over their shoulders to make them think twice — to think what government penalties and charges they will face — when they choose which stories to cover and publish and how the stories are reported.

On Friday, the FCC withdrew a questionnaire it was about to send to all news operations in the nation, demanding answers to intrusive questions about how they choose the stories they cover and a lot more. And this is only a delay. The survey will be sent, probably in a month or two.

Let’s put this precisely: this is a government effort to intimidate the news media — specifically conservative news and comment media such as The American Spectator — to change the way they select the news stories on which to report, analyze, and comment.

The survey, the “Multi-Market Study of Critical Information Needs,” is what you would expect from the Obama White House. According to an op-ed in the Wall Street Journal by FCC Commissioner Ajit Pai, the FCC selected eight categories of news such as “the environment” and “economic opportunity” that it believes journalists should cover. Pai says the FCC “plans to ask station managers, news directors, journalists, television anchors and on-air reporters to tell the government about their ‘news philosophy’ and how the station ensures that the community gets critical information.”

Pai also writes that the survey asks reporters, “Have you ever suggested coverage of what you consider a story with critical information for your customers that was rejected by management?” and that “follow-up questions ask for specifics about how editorial discretion is exercised, as well as the reasoning behind the decisions.”

Those questions are unconstitutional intrusions on freedom of speech and of the press. We are expressly protected from such inquiries by the First Amendment, whether Obama believes that or not.

If this reminds you of the old “Fairness Doctrine,” it should. That doctrine was just an earlier and cruder regulation that the FCC used, for years, to ensure that as much airtime was devoted to liberal-oriented news as to other stories. It’s been gone for years for the obvious reason that it conflicted with the First Amendment just as the FCC’s survey will when it and any regulation that comes out of it is imposed.

The FCC knows who broadcasts the news on radio and television, who reports and analyzes news on the Internet and in print. So the FCC is going directly to tell them that they (and we) have a duty to write and publish stories the FCC believes are “critical” regardless of what we and our editors think.

Of course, it will only be the first of many annual (semi-annual? monthly? daily?) surveys the government will impose. What will be done with the surveys’ results? The government will retain them to keep track of how individual reporters and editors behave in a manner that George Orwell couldn’t imagine in the pre-Internet age. Big Brother will be watching and tracking what reporters and editors do, so they’d better behave. That story on global warming? Heck, it’s just another non-newsworthy Al Gore press conference. But you’d better devote some reporter’s time to it — regardless of other real news — and publish the story or BB will spank.

This is so patently unconstitutional that only the Obama administration would try to pull it off. The government cannot, constitutionally, tell us what stories to cover or how we should report or analyze the news. And that is the necessary effect of the survey. For the government to ask how editorial discretion is exercised is at the heart of the First Amendment’s protections.

I was the editor of Human Events for three years and have worked with editors of most of the conservative media for almost twenty years. Editors choose stories based on their political importance, interest to the readership and currency of the events in question. In the day-to-day exercise of editorial discretion — and it sometimes comes down to hour-by-hour or less — editors have to and should pass by stories that don’t meet the urgent needs of the hour. Editors in nations that control their media cannot do that because the governments there do exactly what the FCC is trying to pull here.

If you doubt that, read some of the government-controlled media that’s available to anyone with Internet access. The joke around conservative media in Cold War days was that the name “Pravda,” he then-Soviet controlled newspaper, meant “Truth” in English. It was anything but, and under Putin has returned to its old ways. Arab News is controlled by the Saudi government, Xinhua is controlled by the Chinese, and Lebanon’s Daily Star is controlled by the terrorist network Hizballah.

They are monochromatic, publishing only pro-regime news and stories that embarrass the regime’s adversaries. If you spend even five minutes reading each, and spend another ten minutes reflecting on the news covered by Fox News, the Washington Examiner and the Washington Times, London’s Daily Telegraph, and Israel’s Haaretz, you’ll see how the governments choose stories and the great contrast with how editors of the press in free countries perform the same task.

Contrary to what the president told Bill O’Reilly, both the IRS and the FCC have been systematically corrupted and politicized to implement an unconstitutional, and hence illegal, liberal agenda. The only answer is for editors and reporters to refuse to answer this survey and any other surveys like it. That won’t be the last word (it’ll have to end with Supreme Court action), but it’s a start.

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About the Author
Jed Babbin served as a Deputy Undersecretary of Defense under George H.W. Bush. He is the author of several bestselling books including Inside the Asylum and In the Words of Our Enemies. He is coauthor (with Herbert London) of the new book The BDS War Against Israel. You can follow him on Twitter@jedbabbin.