The First Amendment has three parts to it: the protection of religious freedom, the protection of speech and press, and the protection of the people’s right to assembly and petition. In all three categories, the Obama administration’s record is outrageous: it has forced the religious to finance free contraceptives, treated some journalists as potential criminals, and sought to undermine political speech and action through “campaign finance reform” and IRS harassment.
Conforming to the Obama administration’s pattern of disregarding the First Amendment in total is this month’s news: a Federal Communications Commission plan, now thwarted, to gather information on newsroom practices.
Obama’s appointees thought it a worthy potential project for the federal government to probe journalists on how they decide what constitutes news. A plan that involved peppering editors and reporters with questions about the “philosophy” of their outlets sounds like a scheme Anita Dunn and David Axelrod might have dreamed up in the euphoria of Obama’s 2008 victory. The proposed name of the plan, “the Multi-Market Study of Critical Information Needs,” gives off the perfect Big Government chill.
Backlash has caused the FCC to ditch the plan, but the very fact that commissioners had long contemplated it is revealing enough. An FCC spokesman allowed that some of the questions in the proposed study “may not have been appropriate,” which sounds as gingerly an apology as the IRS’s description of its persecution of Tea Party groups as “poor customer service.” FCC chairman Tom Wheeler’s letter to Congress didn’t inspire much confidence either. He argued that the plan was perfectly harmless while acknowledging unstated “concerns.”
What can we get away with? That appears to be the Obama administration’s controlling standard for approaching constitutional issues. It is an ironic legacy for an administration full of proud Nixon haters, Pentagon Papers-style defenders, anti-CIA activists, and ACLU alumni. In power, they have become more than what they once opposed, making some of Nixon’s infractions look minor.
Perhaps Obama’s appointees at the FCC didn’t feel like they would be breaking any new ground with their study. After all, Attorney General Eric Holder can take credit for coming up with the idea first. In 2009, he did a study of sorts of the newsroom practices of James Rosen of Fox News and found them wanting. Rosen had committed the supposedly high offense of asking State Department adviser Stephen Jin-Woo Kim for information. An FBI agent wrote that Rosen “asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information. The reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.” Holder treated Rosen’s routine act of journalism as potentially criminal behavior and authorized snooping on his e-mails.
In its violations of the First Amendment, the Obama administration has consistently relied upon self-serving definitions of press, religion, and political speech. Holder justified violating Rosen’s press freedom on the grounds that he somehow wasn’t acting as a legitimate member of the press. Health and Human Services Secretary Kathleen Sebelius has arrogated to herself the right to determine what is and what is not a “religion.” She claims the HHS mandate doesn’t violate religious freedom since groups that serve the public aren’t religious according to her criteria. She declared at the time of the mandate’s release that only purely sectarian groups are deemed religious under Obamacare and thus worthy of an exemption. The Federal Election Commission plays the same game on what constitutes political speech, defining the concept ever more narrowly to justify restrictions on ordinary participation.
The First Amendment has shriveled under the shoot-from-the-hip statism to which Obama’s “living Constitution” theory lends itself. Casting it as an amendment evolving toward modern purposes, by which he means his own, Obama feels entitled to repudiate its plain language.
In keeping with this spirit, the defenders of the proposed FCC study scrambled to cite what they see as a blameless modern purpose for infringing upon press freedom: the promotion of diversity. The study was conceived in the interests of promoting “new entrants” into the journalistic marketplace, Wheeler said. It is safe to say he wasn’t referring to conservative ones.