from Fox News, 2014-Oct-25, by Judson Berger:
Government to Ordained Ministers: Celebrate Same-Sex Wedding or Go to JailFor years, those in favor of same-sex marriage have argued that all Americans should be free to live as they choose. And yet in countless cases, the government has coerced those who simply wish to be free to live in accordance with their belief that marriage is the union of a man and a woman.
Just this weekend, a case has arisen in Idaho, where city officials have told ordained ministers they have to celebrate same-sex weddings or face fines and jail time.
The Idaho case involves Donald and Evelyn Knapp, both ordained ministers, who run Hitching Post Wedding Chapel. Officials from Coeur d'Alene, Idaho, told the couple that because the city has a non-discrimination statute that includes sexual orientation and gender identity, and because the 9th U.S. Circuit Court of Appeals struck down Idaho's constitutional amendment defining marriage as the union of a man and a woman, the couple would have to officiate at same-sex weddings in their own chapel.
The non-discrimination statute applies to all “public accommodations,” and the city views the chapel as a public accommodation.
On Friday, a same-sex couple asked to be married by the Knapps, and the Knapps politely declined. The Knapps now face a 180-day jail term and $1,000 fine for each day they decline to celebrate the same-sex wedding.
A week of honoring their faith and declining to perform the ceremony could cost the couple three and a half years in jail and $7,000 in fines.
Government CoercionThe Knapps have been married to each other for 47 years and are both ordained ministers of the International Church of the Foursquare Gospel. They are “evangelical Christians who hold to historic Christian beliefs” that “God created two distinct genders in His image” and “that God ordained marriage to be between one man and one woman.”
But as a result of the courts redefining marriage and a city ordinance that creates special privileges based on sexual orientation and gender identity, the Knapps are facing government coercion.
Governmental recognition of same-sex relationships as marriages need not and should not require any third party to recognize a same-sex relationship as a marriage. Government should respect the rights of all citizens. Indeed, a form of government respectful of free association, free contracts, free speech and free exercise of religion should protect citizens' rights to live according to their beliefs about marriage.
The Knapps have been celebrating weddings in their chapel since 1989. Government should not now force them to shut down or violate their beliefs.
After all, protecting religious liberty and the rights of conscience does not infringe on anyone's sexual freedoms. No one has a right to have the government force a particular minister to marry them. Some citizens may conclude that they cannot in good conscience participate in same-sex ceremonies, from priests and pastors to bakers and florists. They should not be forced to choose between strongly held religious beliefs and their livelihood.
What Can Be DoneAt the federal level, Congress has an opportunity to protect religious liberty and the rights of conscience.
Policy should prohibit the government from discriminating against any individual or group, whether nonprofit or for-profit, based on their beliefs that marriage is the union of a man and woman or that sexual relations are reserved for marriage. The government should be prohibited from discriminating against such groups or individuals in tax policy, employment, licensing, accreditation or contracting.
The Marriage and Religious Freedom Act—sponsored by Rep. Raul Labrador, R-Idaho, in the House (H.R. 3133) with more than 100 co-sponsors of both parties, and sponsored by Sen. Mike Lee, R-Utah, in the Senate (S. 1808) with 17 co-sponsors—would prevent the federal government from taking such adverse actions.
States need similar policy protections, including broad protections provided by state-level Religious Freedom Restoration Acts (RFRAs) and specific protections for beliefs and actions about marriage.
Indeed, Idaho has a RFRA, called the Free Exercise of Religion Protected Act (FERPA). State RFRAs prevent the imposition of substantial burdens on sincere religious beliefs unless the government proves that such a burden advances a compelling government interest that has been pursued through the least restrictive means possible.
Protecting Religious LibertyIt is unclear how the city could claim that forcing the Knapps to perform a same-sex wedding is a compelling government interest being pursued in the least restrictive way. There are numerous other venues where a same-sex couple could get married. Indeed, there is a county clerks office directly across the street from the chapel.
States must protect the rights of Americans and the associations they form—both nonprofit and for-profit—to speak and act in the public square in accordance with their beliefs. It is particularly egregious that the city would coerce ordained ministers to celebrate a religious ceremony in their chapel. The Alliance Defending Freedom has filed a motion arguing that this action “violates [the Knapps's] First and 14th Amendment rights to freedom of speech, the free exercise of religion, substantive due process, and equal protection.”
Citizens must work to prevent or repeal laws that create special privileges based on sexual orientation and gender identity. We must also insist on laws that protect religious freedom and the rights of conscience.
Protecting religious liberty and the rights of conscience is the embodiment of a principled pluralism that fosters a more diverse civil sphere. Indeed, tolerance is essential to promoting peaceful coexistence even amid disagreement.
Ryan T. Anderson researches and writes about marriage and religious liberty as the William E. Simon Fellow at The Heritage Foundation. He also focuses on justice and moral principles in economic thought, health care and education, and has expertise in bioethics and natural law theory. Read his research.
from BBC News, 2014-Oct-17, by Dave Lee:
YouTube, Beware: Election-spending regulator sets sights on political Internet videosPolitically themed YouTube videos could be the next target of federal regulators.
The top Democrat on the Federal Election Commission strongly suggested Friday that regulators look at extending their authority to election-themed Internet videos – an area that for years has been largely hands-off for the government.
The statement from Vice Chairwoman Ann Ravel, who is in line to take over the commission next year, prompted Republicans to warn that such a move could threaten the growth and freedom of the Internet itself.
“I have been warning that my Democratic colleagues were moving to regulate media generally and the Internet specifically for almost a year now,” Chairman Lee Goodman told FoxNews.com. “And today's statement from Vice Chair Ravel confirms my warnings.”
At issue was a case considered by the FEC – the chief campaign-finance regulator – in September involving a group that ran pro-coal videos critical of Democrats in 2012. The group initially was accused of failing to report the cost of the videos and of failing to include the routine “disclaimers.”
But the group maintained that since they were only run on YouTube, they were exempt.
The case ended in a split, 3-3 decision at the FEC and was dismissed. But the vote itself aired a striking divide: despite a decision clearing the organization by the general counsel, Democrats voted to pursue an investigation anyway while Republicans voted to drop it.
Ravel was blunt in her written statement Friday explaining her side's vote. She scolded Republicans for arguing rules that would apply to TV ads should not apply to web videos.
“As a matter of policy, this simply does not make sense,” she said.
She said, rather, a “re-examination” of the FEC approach to the Internet is “long overdue” and complained the commission has “turned a blind eye” to the Internet's influence in politics.
“Since its inception, this effort to protect individual bloggers and online commentators has been stretched to cover slickly-produced ads aired solely on the Internet but paid for by the same organizations and the same large contributors as the actual ads aired on TV,” she said. Ravel vowed to “bring together” people from “across the spectrum” next year to look at the issue.
This set off alarm bells.
GOP members of the commission cite an “Internet exemption” dating back to 2006 that spares free web videos from FEC regulations. In other words, anyone who posts a politically themed video for free only to YouTube can – for now -- do so without including a disclaimer or reporting the costs.
“The FEC's approach to free speech on the Internet should be hands-off,” Goodman said, urging the public to go to the FEC website to comment on the issue.
A statement from Goodman and his GOP colleagues on the commission likewise warned about the implications of the 3-3 decision, and a “desire to retreat” from “important protections for online political speech.”
This, they wrote, would be a “shift in course that could threaten the continued development of the Internet's virtual free marketplace of political ideas and democratic debate.”
This is hardly the first warning from Goodman and his colleagues about the direction of the current FEC. He previously has warned that officials at the agency want to start regulating the media, and might even try to regulate book publishers. Democrats on the commission have called those allegations “overheated” and overblown.
from the Asahi Shimbun, 2014-Oct-10, by Ken Sakakibara:
BBC to publish 'right to be forgotten' removals listThe BBC is to publish a continually updated list of its articles removed from Google under the controversial "right to be forgotten" rule.
The ruling allows people to ask Google to remove some types of information about them from its search index.
But editorial policy head David Jordan told a public meeting, hosted by Google, that the BBC felt some of its articles had been wrongly hidden.
He said greater care should be given to the public's "right to remember".
Following the ruling, Google set up a form on its site allowing people to request which links should be taken down.
The European Court of Justice (ECJ) said links that were "inadequate, irrelevant or no longer relevant" should not appear when a specific search - usually a person's name - was made.
Google decided to notify affected websites each time a link had been removed.
The BBC will begin - in the "next few weeks" - publishing the list of removed URLs it has been notified about by Google.
Mr Jordan said the BBC had so far been notified of 46 links to articles that had been removed.
They included a link to a blog post by Economics Editor Robert Peston. The request was believed to have been made by a person who had left a comment underneath the article.
An EU spokesman later said the removal was "not a good judgement" by Google.
Real IRAThe list will not republish the story, or any identifying information. It will instead be a "resource for those interested in the debate", Mr Jordan said.
He criticised the "lack of a formal appeal process" after links have been taken down, noting one case where news of the trial involving members of the Real IRA was removed from search results.
"Two of whom were subsequently convicted," Mr Jordan explained.
"This report could not be traced when looking for any of the defendants' names. It seems to us to be difficult to justify this in the public's interest."
He suggested that Google implement some changes to the process of making a "right to be forgotten" request - such as requiring the identity of the person to be shared with the publication, on condition of confidentiality.
The meeting, hosted by Google chairman Eric Schmidt, is the latest of several that have taken place around Europe in the past two months. The next, on 4 November, will be held in Brussels.
However supporters of the ruling said the meetings were a "PR exercise" for Google - which would rather not deal with requests - rather than an open debate.
"They want to be seen as being open and virtuous, but they handpicked the members of the council, will control who is in the audience, and what comes out of the meetings," said Isabelle Falque-Pierrotin, head of CNIL - France's data protection body.
from the Wall Street Journal, 2014-Aug-12:
Tokyo court orders Google to delete search results that implied criminalityThe Tokyo District Court on Oct. 9 ordered Google Inc. to delete more than 100 search results that invaded a man's privacy by giving the impression he was involved in criminal activity.
The man sought an injunction with the court in June 2014 to delete 237 Google search results on his name, saying they implied he was a criminal and were damaging his personal life.
Presiding Judge Nobuyuki Seki ordered Google to delete 122 of the results, including the “title” and the accompanying summary of the contents.
The court said some of the search results did infringe on the man's personal rights.
“It is only natural that an obligation to delete (the search results) arises for Google, which manages the site,” the ruling said.
The court rejected Google's argument that in principle it does not have an obligation to delete results as the provider of a search engine.
“This verdict is very good news for the many people who have suffered both physically and psychologically through an invasion of privacy over the Internet,” said Tomohiro Kanda, the lawyer for the plaintiff.
Google could appeal the decision.
“We have not yet confirmed at the present time that (the injunction) has actually been issued,” a spokesperson for Google's Japanese subsidiary said.
Masatomo Suzuki, an information law professor at Niigata University, said, “I have never heard of a court verdict in Japan that called on a search engine site to delete search results.”
In May 2014, the Court of Justice of the European Union ordered Google to delete search results that contained inappropriate personal information. That ruling received international attention because it recognized a person's right to be “forgotten.”
The Tokyo District Court ruling follows in the same vein as that EU court decision.
from the Washington Times, 2014-Jul-16, by Andrew Napolitano:
Google on the RunGoogle fled mainland China for Hong Kong in 2010 to escape the Beijing government's censorship and cybersnooping. Now a court ruling threatens to censor the search giant in Hong Kong—and in the process please opponents of free speech from Beijing to Brussels.
A Hong Kong court continues the trend toward censorship.
Hong Kong's High Court ruled last week that local tycoon Albert Yeung, whose businesses include pop music, casinos and luxury retailing, can sue Google for defamation over its "autocomplete" feature. Mr. Yeung objects that when Internet users type his name into Google, the site offers terms such as "triad," "Sun Yee On" and "14K"—references to Hong Kong organized crime. Mr. Yeung was convicted of illegal bookmaking and obstruction of justice in the 1980s, but he denies any connections to organized crime and charges that Google effectively defames him every time anyone searches his name.
Google retorts that its autocomplete suggestions simply reflect common searches by Web users, with Google serving as a "passive facilitator" of that information—not a publisher controlling its content. Nor would such control be possible, the company says. "The entire basis of the Internet will be compromised if search engines are required to audit what can be assessed by users using their search tools," Google's lawyer told the court. Given the billions of searches conducted, that would be an "infinite duty" that "should not be foisted on Google."
Judge Marlene Ng apparently disagrees. She ruled that "Google Search does not simply convey information" but rather publishes suggestions "distilled pursuant to artificial intelligence set up by Google." So Mr. Yeung has "a good arguable case" against the company, and a jury can decide what damages may be appropriate. Google meanwhile will likely scramble to start auditing its search tools and heading off litigation from other Hong Kongers happy to shake down a tech colossus.
Hong Kong thus joins the growing global campaign to cleanse the Internet of information that some person or another wants to make disappear, even at the expense of the public interest. In May the European Union's highest court blessed a "right to be forgotten," giving individuals the power to demand that search engines and social-media platforms withhold links to certain Web pages. The ruling included a nominal public-interest exception, but no one knows what courts will decide to protect and what to order erased. Is your years-old bankruptcy outdated personal information, or still valuable for potential business partners or creditors?
Tech firms would rather alter search results than face capricious courts, so the censorship has begun. Google, which in June reported receiving 10,000 privacy requests per day, has informed several European news outlets—including the BBC, the Guardian, El Mundo and The Wall Street Journal—that it now withholds search results for certain articles on their sites.
In ruling against Google last week Justice Ng mentioned the European right to be forgotten only in passing, but Hong Kong privacy commissioner Allan Chiang is already pushing for the territory to follow the EU's lead. "As a responsible enterprise, Google should also entertain removal requests from other parts of the world to meet their privacy expectations," he said before a meeting of 15 regional privacy czars in June.
Such high-minded rhetoric about privacy obscures the inherent authoritarian risks in heightened information controls, whether concerning Albert Yeung's autocomplete results or official European records. As law professor Eugene Volokh wrote presciently in 2000: "The difficulty is that the right to information privacy—the right to control other people's communication of personally identifiable information about you—is a right to have the government stop people from speaking about you." Inviting such government power is no path to greater individual privacy or security.
from the Wall Street Journal, 2014-Apr-3, by James Taranto:
Feds chilling free speech“Chilling” is the word lawyers use to describe governmental behavior that does not directly interfere with constitutionally protected freedoms, but rather tends to deter folks from exercising them.
The marketplace of ideas is in the federal cross hairs
Classic examples of “chilling” occurred in the 1970s, when FBI agents and U.S. Army soldiers, in business suits with badges displayed or in full uniform, showed up at anti-war rallies and proceeded to photograph and tape-record protesters. When an umbrella group of protesters sued the government, the Supreme Court dismissed the case, ruling that the protesters lacked standing — meaning, because they could not show that they were actually harmed, they could not invoke the federal courts for redress.
Yet they were harmed, and the government knew it. Years after he died, longtime FBI boss J. Edgar Hoover was quoted boasting of the success of this program. The harm existed in the pause or second thoughts that protesters gave to their contemplated behavior because they knew the feds would be in their faces — figuratively and literally. The government's goal, and its limited success, was to deter dissent without actually interfering with it. Even the government recognized that physical interference with and legal prosecutions of pure speech are prohibited by the First Amendment. Eventually, when this was exposed as part of a huge government plot to stifle dissent, known as COINTELPRO, the government stopped doing it.
Now the government fears the verbal slings and arrows of dissenters, even as the means for promulgating one's criticisms of the government in general and of President Obama in particular have been refined and enhanced far beyond those available to the critics of the government in the 1970s.
What has the Obama administration done to stifle, or chill, the words of its detractors? For starters, it has subpoenaed the emails and home telephone records of journalists who have either challenged it or exposed its dark secrets. Among those journalists are James Risen of The New York Times and my colleague and friend James Rosen of Fox News. This is more personal than the National Security Agency spying on everyone, because a subpoena is an announcement that a specific person's words or effects have been targeted by the government, and that person continues to remain in the government's cross hairs until it decides to let go.
This necessitates hiring legal counsel and paying legal fees. Yet, the targeting of Mr. Risen and Mr. Rosen was not because the feds alleged that they broke the law. There were no such allegations. Rather, the feds wanted to see their sources and their means of acquiring information. What journalist could perform his work with the feds watching? The reason we have a First Amendment is to ensure that no journalist would need to endure that.
Two weeks ago, a notorious pot-stirrer in Norfolk, Neb., built a mock outhouse, put it on a truck and drove the truck with permission in a local Fourth of July parade. In front of the outhouse, he placed a mannequin that he claimed looked like himself, and on the outhouse, he posted a sign that stated: “Obama Presidential Library.”
Some thought this was crude, and some thought it was funny; yet it is fully protected speech. It is protected because satire and opinion about public figures are absolutely protected, as well as is all criticism of the government. Still, the Department of Justice has sent a team to investigate this event because a local official called it racist. Such an allegation by a public official and such a federal investigation are chilling. The reason we have a First Amendment is to ensure that the government stays out of investigating speech.
Just last week, Attorney General Eric H. Holder Jr., while in London, opined that much of the criticism of Mr. Obama is based on race — meaning that if Mr. Obama were fully white, his critics would be silent. This is highly inflammatory, grossly misleading, patently without evidential support and, yet again, chilling. Tagging someone as a racist is the political equivalent of applying paint that won't come off. Were the Democrats who criticized Attorney General Alberto Gonzales or Secretary of State Condoleezza Rice racists? Is it appropriate for government officials to frighten people into silence by giving them pause before they speak, during which they basically ask themselves whether the criticism they are about to hurl is worth the pain the government will soon inflict in retaliation?
The whole purpose of the First Amendment is to permit, encourage and even foment open, wide, robust debate about the policies and personnel of the government. That amendment presumes that individuals — not the government — will decide what language to read and hear. Because of that amendment, the marketplace of ideas — not the government — will determine which criticisms will sink in and sting, and which will fall by the wayside and be forgotten.
Surely, government officials can use words to defend themselves; in fact, one would hope they would. Yet when the people fear exercising their expressive liberties because of how the governmental targets they criticize might use the power of the government to stifle them, we are no longer free.
Expressing ideas, no matter how bold or brazen, is the personal exercise of a natural right that the government in a free society is powerless to touch, directly or indirectly. However, when the government succeeds in diminishing public discourse so that it only contains words and ideas of which the government approves, it will have succeeded in establishing tyranny. This tyranny — if it comes — will not come about overnight. It will begin in baby steps and triumph before we know it.
Yet we do know that it already has begun.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is an analyst for the Fox News Channel. He has written seven books on the U.S. Constitution.
from the Wall Street Journal, 2014-May-6:
Welcome to the CollectiveIn his plurality opinion in yesterday's free-speech case, McCutcheon v. Federal Election Commission, Chief Justice John Roberts notes an anomaly in contemporary "liberal" First Amendment jurisprudence: "If the First Amendment protects flag burning, funeral protests, and Nazi parades--despite the profound offense such spectacles cause--it surely protects political campaign speech despite popular opposition."
Justice Breyer turns the First Amendment on its head.
We'd take the point a step further. The examples Roberts cites all involve fringe political expression. But the First Amendment also protects outré speech outside the political realm--most notably pornography, the subject of a great deal of Supreme Court jurisprudence over the past few decades, in which judicial liberals took the lead in expanding free-speech rights.
In recent years something of a consensus has emerged. When the court extended First Amendment protection to "depictions of animal cruelty" (U.S. v. Stevens, 2010) and violent video games (Brown v. Entertainment Merchants Association, 2011), the decisions were written by Roberts and Justice Antonin Scalia, respectively, for 8-1 and 7-2 majorities.
So why have the court's "liberals" adopted a hostile attitude toward political speech, which has long been understood as being at the core of First Amendment protection? In his McCutcheon dissent, Justice Stephen Breyer elaborates the theory behind this odd development.
We should note that Breyer has proved more willing than his liberal colleagues to uphold restrictions on nonpolitical speech. He was one of the two dissenters (with Justice Clarence Thomas) in Brown v. EMA, which involved a statute restricting sales of games to minors. He also dissented in U.S. v. Playboy Entertainment Group (2000), which invalidated limits on sexually explicit cable TV programming.
But in both those cases Breyer was alone among the court's liberals. In McCutcheon, his dissent gained the support of Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. It's a familiar pattern: A series of high court rulings pitting campaign finance restrictions against free speech, beginning in 2007, have been decided 5-4, with the same majority as in McCutcheon and the identity of the dissenters varying only by virtue of changes in the court's personnel.
Yesterday's decision was fairly narrow. It invalidated a statutory provision limiting the total contributions an individual could make to congressional candidates, party committees and political action committees during an election cycle. But it let stand the limits on contributions to each candidate or committee. That means, among other things, that a contributor may now give to as many candidates as he wants, but only $5,200 apiece ($2,600 each for the primary and general election). Thomas argued for striking down the individual limits too, which is why Roberts's opinion did not command a majority.
In making the case for the constitutionality of restrictions on campaign contributions, Breyer advances an instrumental view of the First Amendment. He quotes Justice Louis Brandeis, who in 1927 "wrote that the First Amendment's protection of speech was 'essential to effective democracy,' " and Brandeis's contemporary Chief Justice Charles Evans Hughes, who in 1931 argued that " 'a fundamental principle of our constitutional system' is the 'maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people" (emphasis Breyer's).
After citing Jean-Jacques Rousseau's (!) views on the shortcomings of representative democracy, Breyer quotes James Wilson, one of the Founding Fathers, who argued in a 1792 commentary that the First Amendment's purpose was to establish a "chain of communication between the people, and those, to whom they have committed the exercise of the powers of government." Again quoting Wilson, Breyer elaborates: "This 'chain' would establish the necessary 'communion of interests and sympathy of sentiments' between the people and their representatives, so that public opinion could be channeled into effective governmental action."
And here's how Breyer sums it all up: "Accordingly, the First Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters."
The emphasis on "matters" is again Breyer's. We'd have italicized "collective" as the key concept. As with the Second Amendment, he and the other dissenters assert a "collective" right, the establishment of which is purportedly the Constitution's ultimate purpose, as a justification for curtailing an individual right.
In this case they at least acknowledge the individual right exists. But then the First Amendment, unlike the Second, has no prefatory clause explaining its purpose; it simply says "Congress shall make no law . . ." Breyer has to venture outside the text to find a reason to read that prohibition equivocally.
It's important to note that when Breyer refers to "collective" rights, what he does not have in mind is individuals exercising their rights by voluntarily collecting themselves into organizations. In fact, the prevailing left-liberal view, most notably with respect to Citizens United v. FEC (2010), is that collections of individuals, at least when they take corporate form, have (or should have) no rights.
The only "collective" that matters to Breyer is the one from which you cannot opt out except by the extreme measure of renouncing your citizenship: "the people" or "the public" as a whole. In Breyer's view, the purpose of the First Amendment is to see that (in Chief Justice Hughes's words) "the will of the people" is done. Individual rights are but a means to that end. To the extent they frustrate it, they ought to be curtailed. You will be assimilated.
That resolves the conundrum we noted atop this column. Fringe political speech like flag burning, funeral protests and Nazi parades is so broadly unappealing as to have no effect on "the will of the people." The same is true of nonpolitical forms of expression such as pornography, violent video games and depictions of animal cruelty. (Breyer's willingness to countenance restrictions of the first two has to do with the protection of children, not of the body politic.)
Only mainstream political expression has the potential to thwart the "collective" will, and thus, in the view of Breyer and his fellow dissenters, it alone is deserving of restriction on such a rationale. That stands the First Amendment on its head. Its purpose may be to "make government responsive," as Wilson argued, but the means by which it does so is the limitation of government power and protection of individual freedom.
The Puffington Host has a revealing quote from a politician who objects to yesterday's ruling, Rhode Island's Sen. Sheldon Whitehouse:
"This is a court that knows essentially nothing about elections. It's the first court in a long time on which no one has ever run for office," said Whitehouse, comparing the five justices who ruled for businessman Shaun McCutcheon to "the ultimate amateur . . . who says, 'I know how to eat, so I can open a restaurant.' "Whitehouse is arguing that the political process should be controlled by professional politicians. As Roberts notes in responding to Breyer's dissent: "The degree to which speech is protected cannot turn on a legislative or judicial determination that particular speech is useful to the democratic process." To do so would impose the will of politicians or judges on the people, not the other way around.
from the Wall Street Journal, 2014-Jun-1, by Ted Cruz:
Rewriting the First AmendmentA standard liberal talking point about the Tea Party is that its constitutional designs are "extremist." But you will search in vain for any Tea Party proposal that is anywhere close to as radical as the current drive by mainstream Democrats to rewrite the Bill of Rights.
Chuck Schumer thinks he can improve on James Madison.
The Supreme Court's Citizens United decision allowing unions and corporations to donate to independent political groups has driven liberals to such fits that they now want to amend the First Amendment. At a Senate Rules Committee meeting last week, New York Democrat Chuck Schumer announced a proposal to amend the Constitution to empower government to regulate political speech.
"The Supreme Court is trying to take this country back to the days of the robber barons, allowing dark money to flood our elections," Mr. Schumer said. The Senate will vote this year on the amendment to "once and for all allow Congress to make laws to regulate our system, without the risk of them being eviscerated by a conservative Supreme Court." He even rolled out retired Supreme Court Justice John Paul Stevens to pronounce his unhappiness with freedom's bedrock document.
According to the text of the proposed revision to James Madison's 1791 handiwork, sponsored by New Mexico Senator Tom Udall, the states and federal government would have the power to regulate the "raising and spending of money" through a wide range of means "to advance the fundamental principle of political equality for all."
The real guarantee would be political advantage for all incumbents, since it's the sitting lawmakers who really benefit from any law limiting contributions to candidates or on their behalf. While Beltway boys like Messrs. Schumer and Udall have the name recognition to raise money in small increments, challengers often need the financial boost from a few individuals to get their message heard.
Mr. Schumer is conjuring the age of robber barons, but there were no general limits on what an individual could donate to a federal candidate in this country until as recently as 1974. Contrary to the outrage that greeted the Supreme Court's recent decision ending aggregate limits to candidates and political party committees in McCutcheon v. FEC, at the time that ruling was issued 32 states already had no aggregate or similar limits on contributions to candidates. That fact was so uncontroversial that Mr. Udall may not even know that New Mexico was among the 32.
Mr. Udall's amendment is careful to specify that nothing "should be construed to grant Congress the power to abridge the freedom of the press." In case you don't follow campaign finance, that is supposed to protect newspapers and TV networks, most of which embrace Democratic causes and candidates.
The real target will be the corporations Democrats have railed against since Citizens United. But why should Warren Buffett's company enjoy free speech rights because he owns a handful of newspapers along with insurance companies, while Jeffrey Immelt's is muzzled because GE makes jet turbines? For that matter, what's to stop political groups from incorporating themselves as newspapers?
Once you've opened the First Amendment for revision by politicians, and reinterpretation by judges, anything can happen. We know liberal editors tend to lose their bearings when they write about money in politics, but is the problem so great that it's worth letting, say, Senator Ted Cruz determine whether the New York Times Co. qualifies for protection under the First Amendment?
This prospect doesn't seem to bother even the great totems of the legal left, who also see an amendment as the only way to end-run the Supreme Court. Amending the First Amendment is a "particularly worthy enterprise," Harvard's Laurence Tribe wrote on Slate.com in 2012 "given that the composition of the court prefigures little chance of a swift change in direction." Who would have thought that the legal left considered rights of speech and association to be so easily tradeable for partisan gain?
Professor Tribe added that thanks to the rise of Super PACs, campaign donors are "invisible to the electorate, though they are all too visible to the candidates who benefit." Think of the Koch brothers—or, as Mr. Tribe suggests, the "invisible" tycoon Sheldon Adelson, whose contributions to Newt Gingrich's political action committee during the 2012 GOP primary "singlehandedly sustained a floundering presidential campaign." These donors are so "invisible" that Mr. Tribe can put their names in an op-ed and his readers all know who they are.
A Constitutional amendment requires a two-thirds vote of the House and Senate and ratification by 38 states, so it has scant chance of passing any time soon. Those ample checks against self-interested legislatures are another reason to thank the Founders. But who knows what might happen the next time Democrats get supermajorities in Congress, or find a Republican like John McCain willing to give their effort bipartisan cover?
The larger story here is how far the American left is willing to go to cripple their political opponents. They're even willing to write a giant loophole into America's founding charter so Congress can limit political speech. The Tea Party's concerns about eroding liberty turn out to be more accurate than even its most devoted partisans imagined.
from the New York Times, 2014-Nov-2, printed 2014-Nov-3, p.A31, by David Schanzer and Jay Sullivan:
The Democratic Assault on the First AmendmentFor two centuries there has been bipartisan agreement that American democracy depends on free speech. Alas, more and more, the modern Democratic Party has abandoned that commitment and has instead been trying to regulate the speech of the citizenry.
Congress has too much power already; it should not have the power to silence citizens.
We have seen President Obama publicly rebuke the Supreme Court for protecting free speech in Citizens United v. FEC; the Obama IRS inquire of citizens what books they are reading and what is the content of their prayers; the Federal Communications Commission proposing to put government monitors in newsrooms; and Sen. Harry Reid regularly slandering private citizens on the Senate floor for their political speech.
But just when you thought it couldn't get any worse, it does. Senate Democrats have promised a vote this year on a constitutional amendment to expressly repeal the free-speech protections of the First Amendment.
You read that correctly. Forty-one Democrats have signed on to co-sponsor New Mexico Sen. Tom Udall's proposed amendment to give Congress plenary power to regulate political speech. The text of the amendment says that Congress could regulate "the raising and spending of money and in-kind equivalents with respect to federal elections." The amendment places no limitations whatsoever on Congress's new power.
Two canards are put forth to justify this broad authority. First, "money is not speech." And second, "corporations have no free speech rights."
Neither contention bears even minimal scrutiny. Speech is more than just standing on a soap box yelling on a street corner. For centuries the Supreme Court has rightly concluded that free speech includes writing and distributing pamphlets, putting up billboards, displaying yard signs, launching a website, and running radio and television ads. Every one of those activities requires money. Distributing the Federalist Papers or Thomas Paine's "Common Sense" required money. If you can prohibit spending money, you can prohibit virtually any form of effective speech.
As for the idea that the Supreme Court got it wrong in Citizens United because corporations have no First Amendment rights, that too is demonstrably false. The New York Times is a corporation. The television network NBC is a corporation. Book publisher Simon & Schuster is a corporation. Paramount Pictures is a corporation. Nobody would reasonably argue that Congress could restrict what they say—or what money they spend distributing their views, books or movies—merely because they are not individual persons.
Proponents of the amendment also say it would just "repeal Citizens United" or "regulate big money in politics." That is nonsense. Nothing in the amendment is limited to corporations, or to nefarious billionaires. It gives Congress power to regulate—and ban—speech by everybody.
Indeed, the text of the amendment obliquely acknowledges that Americans' free-speech rights would be eliminated: It says "[n]othing in this article shall be construed to grant Congress the power to abridge the freedom of the press." Thus, the New York Times is protected from congressional power; individual citizens, exercising political speech, are not.
If this amendment were adopted, the following would likely be deemed constitutional:
Congress could prohibit the National Rifle Association from distributing voter guides letting citizens know politicians' records on the Second Amendment.
Congress could prohibit the Sierra Club from running political ads criticizing politicians for their environmental policies.
Congress could penalize pro-life (or pro-choice) groups for spending money to urge their views of abortion.
Congress could prohibit labor unions from organizing workers (an in-kind expenditure) to go door to door urging voters to turn out.
Congress could criminalize pastors making efforts to get their parishioners to vote.
Congress could punish bloggers expending any resources to criticize the president.
Congress could ban books, movies (watch out Michael Moore ) and radio programs—anything not deemed "the press"—that might influence upcoming elections.
One might argue, "surely bloggers would be protected." But Senate Democrats expressly excluded bloggers from protection under their proposed media-shield law, because bloggers are not "covered journalists."
One might argue, "surely movies would be exempt." But the Citizens United case—expressly maligned by President Obama during his 2010 State of the Union address—concerned the federal government trying to fine a filmmaker for distributing a movie criticizing Hillary Clinton.
One might argue, "surely books would be exempt." But the Obama administration, in the Citizens United oral argument, explicitly argued that the federal government could ban books that contained political speech.
The contemplated amendment is simply wrong. No politician should be immune from criticism. Congress has too much power already—it should never have the power to silence citizens.
Thankfully, any constitutional amendment must first win two-thirds of the vote in both houses of Congress. Then three-fourths of the state legislatures must approve the proposed amendment. There's no chance that Sen. Udall's amendment will clear either hurdle. Still, it's a reflection of today's Democratic disrespect for free speech that an attempt would even be made. There was a time, not too long ago, when free speech was a bipartisan commitment.
John Stuart Mill had it right: If you disagree with political speech, the best cure is more speech, not less. The First Amendment has served America well for 223 years. When Democrats tried something similar in 1997, Sen. Ted Kennedy was right to say: "In the entire history of the Constitution, we have never amended the Bill of Rights, and now is no time to start."
Mr. Cruz, a Republican senator from Texas, serves as the ranking member on the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Human Rights.
from the Daily Caller, 2014-Aug-19, by Leslie Ford and Ryan T. Anderson, both affiliated with the Heritage Foundation:
Cancel the MidtermsDURHAM, N.C. — By Tuesday night about 90 million Americans will have cast ballots in an election that's almost certain to create greater partisan divisions [not create, reflect -- absent fraud, elections by design can only reflect --AMPP Ed.], increase gridlock [or checking and balancing, as the country's founders would have it -AMPP Ed.] and render governance of our complex nation even more difficult [as the founders intended -AMPP Ed.]. Ninety million sounds like a lot, but that means that less than 40 percent of the electorate will bother to vote, even though candidates, advocacy groups and shadowy “super PACs” will have spent more than $1 billion to air more than two million ads to influence the election.
There was a time when midterm elections made sense — at our nation's founding, the Constitution represented a new form of republican government, and it was important for at least one body of Congress to be closely accountable to the people. But especially at a time when Americans' confidence in the ability of their government to address pressing concerns is at a record low, two-year House terms no longer make any sense. [Close accountability no longer makes sense? This should be a hoot. -AMPP Ed.] We should get rid of federal midterm elections entirely.
There are few offices, at any level of government, with two-year terms. Here in Durham, we elect members of the school board and the county sheriff to terms that are double that length. Moreover, Twitter, ubiquitous video cameras, 24-hour cable news and a host of other technologies provide a level of hyper-accountability the framers could not possibly have imagined. [The accountability inheres in the elections -- no elections, no accountability. -AMPP Ed.] In the modern age, we do not need an election every two years to communicate voters' desires to their elected officials. [This is the Soviet model. "Soviet" is Russian for "advice" -- the authors support the right of people and subordinate officials to communicate their desires upward, and support the prerogative of the superiors to ignore those desires. -AMPP Ed.]
But the two-year cycle isn't just unnecessary; it's harmful to American politics. [But the authors have it above that politics is the problem, so they should support harming it. They must mean that the two-year cycle results in more politics, of which they disapprove. -AMPP Ed.]
The main impact of the midterm election in the modern era has been to weaken the president [Indeed this has been its effect in every era since the country's founding, as intended by the authors of the Constitution. -AMPP Ed.], the only government official (other than the powerless vice president) elected by the entire nation. Since the end of World War II, the president's party has on average lost 25 seats in the House and about 4 in the Senate as a result of the midterms. This is a bipartisan phenomenon — Democratic presidents have lost an average of 31 House seats and between 4 to 5 Senate seats in midterms; Republican presidents have lost 20 and 3 seats, respectively. [This is what accountability looks like. -AMPP Ed.]
The realities of the modern election cycle are that we spend almost two years selecting a president with a well-developed agenda [and a public forced to choose one of only two viable candidates, due to America's political duopoly -AMPP Ed.], but then, less than two years after the inauguration, the midterm election cripples that same president's ability to advance that agenda.
These effects are compounded by our grotesque campaign finance system. House members in competitive races have raised, on average, $2.6 million for the 2014 midterm. That amounts to $3,600 raised a day — seven days a week, 52 weeks a year. Surveys show that members spend up to 70 percent of their time fund-raising during an election year. Two years later, they'll have to do it all again. [Gosh that horrible democracy, it's so messy, can't we neaten things up a bit? -AMPP Ed.]
Much of this money is sought from either highly partisan wealthy individuals or entities with vested interests before Congress [which, due to overreach by legislators and Presidents affialated with the Democratic Party, now includes all interests -AMPP Ed.]. Eliminating midterms would double the amount of time House members could focus on governing [as opposed to fretting over being held accountable by one's constituents -AMPP Ed.] and make them less dependent on their donor base.
Another quirk is that, during midterm elections, the electorate has been whiter, wealthier, older and more educated than during presidential elections. Biennial elections require our representatives to take this into account, appealing to one set of voters for two years, then a very different electorate two years later. [Yes, they appeal to the people who care enough about their country and its government to show up to vote. That's democracy. -AMPP Ed.]
There's an obvious, simple fix, though. The government should, through a constitutional amendment, extend the term of House members to four years and adjust the term of senators to either four or eight years, so that all elected federal officials would be chosen during presidential election years. [This is where the farce reaches its highpoint -- the structural dynamics of Constitutional amendment are similar to those of the House of Representatives and the midterm elections, but far more onerous, requiring multiple supermajorities in Congress (2/3 in each house) and among the state legislators (3/4). Any cause that can prevail by Constitutional amendment would sail through a midterm election and resulting Congress virtually unopposed. -AMPP Ed.] Doing so would relieve some (though, of course, not all) of the systemic gridlock ["check and balances", as the founders would have it -AMPP Ed.] afflicting the federal government and provide members of Congress with the ability to focus more time and energy on governance instead of electioneering [i.e. more imposition, less fretting over being held accountable by the constituents they betrayed -AMPP Ed.].
This adjustment would also give Congress the breathing space to consider longer-term challenges facing the nation — such as entitlement spending [presumably less for the "whiter, wealthier, older and more educated" to whom they above seek explicitly to exempt elected officials from appealing, and relatively more for the not-white, not-wealthier, not-older, and less-educated -AMPP Ed.], immigration [again, by the same rationale, presumably less of "whiter, wealthier, older and more educated" and more for the not-white, not-wealthier, not-older, and less-educated -AMPP Ed.] and climate change [it is inconceivable, given the other views they express here, that the authors mean anything other than the forceful imposition by government on the population of increasingly ruinous schemes of taxation and quotas on the 82% of US energy production that is fossil-fuel-based, without considering alternative strategies of mitigation and adaptation that are more economically realistic and more congenial to the voting public -AMPP Ed.] — that are either too complex or politically toxic to tackle within a two-year election cycle.
To offset the impact of longer congressional terms, this reform might be coupled with term limits that would cap an individual's total congressional service at, say, 24 years [guaranteeing a substantial contingent, at any given time, of lame duck legislators with no accountability at all, all of whose erstwhile constituents would have no substantive representation for the duration of the final term -AMPP Ed.], about the average for a member of Congress today. This would provide members enough time to build experience in the job, but also limit the effects of incumbency and ensure the circulation of new blood in the system.
The framers included an amendment process in the Constitution so our nation could adjust the system to meet the demands of a changing world. Surely they would not be pleased with the dysfunction, partisan acrimony and public dissatisfaction that plague modern politics. [On the contrary, the framers anticipated and intended precisely the "gridlock" currently afflicting the US national government, knowing it to be immeasurably preferable to a bare majority running roughshod over the irreducible and vital economic and social interests of a bare minority, a bare minority that might thereby be motivated to catastrophic rebellion inducing national ruin. -AMPP Ed.] Eliminating the midterm elections would be one small step to fixing our broken system.
David Schanzer is a professor of public policy and Jay Sullivan is a junior at Duke.
from the Wall Street Journal, 2014-Jul-30:
Government to Farmers: Host Same-Sex Wedding or Pay a $13,000 FineShould the government be able to coerce a family farm into hosting a same-sex wedding?
In a free society, the answer is no. Family farms should be free to operate in accordance with the beliefs and values of their owners. Government shouldn't be able to fine citizens for acting in the market according to their own—rather than the government's—values, unless there is a compelling government interest being pursued in the least restrictive way possible.
But the New York State Division of Human Rights doesn't see things this way. On August 8, it fined Cynthia and Robert Gifford $13,000 for acting on their belief that marriage is the union of a man and woman and thus declining to rent out their family farm for a same-sex wedding celebration. The Human Rights Commission ruled that “the nature and circumstances of the [Giffords's] violation of the Human Rights Law also warrants a penalty.”
This is coercive big government run amok.
Here's the back story. In 2012, Melissa Erwin and Jennie McCarthy contacted the Giffords to rent the family's barn for their same-sex wedding ceremony and reception. Cynthia Gifford responded that she and her husband would have to decline their request as they felt they could not in good conscience host a same-sex wedding ceremony at their home. The Giffords live on the second and third floor of the barn and, when they host weddings on the first floor, they open part of the second floor as a bridal suite.
The Giffords have owned and operated Liberty Ridge Farm in Schaghticoke, New York for over 25 years. Like many small farm families, they often open the farm to the public for events like berry picking, fall festivals, and pig racing.
Should the government be in the business of “re-educating” its citizens to change their moral beliefs?They also open their home for weddings and receptions. When the Giffords host weddings, they are involved in every aspect of the wedding planning and celebration: they greet and drive guests in their farm trolley, decorate the barn, set up floral arrangements, arrange fireworks displays, and provide catering. As the Human Rights Commission ruling even points out, “the only wedding-related service Liberty Ridge Farm does not offer is providing the official for the wedding ceremony.”
As many brides know, planning a wedding requires hours of careful work to organize in order to pull off the celebration—hours during which family businesses operating venues like the Giffords' actively participate in the weddings they host. The Giffords believe that as free citizens running a business, they should have the right to decline to participate in an event that does not reflect their values.
Unfortunately, New York's Human Right's law (Executive Law, art. 15) creates special privileges based on sexual orientation that trump the rights of business owners. Because the Giffords' family farm is open to the public for business, New York classifies it as a “public accommodation” and then mandates that it not “discriminate” on the basis of sexual orientation.
Of course the Giffords were not engaging in any insidious discrimination—they were acting on their belief about the nature of marriage. They do not object to gay or lesbian customers attending the fall festivals, or going berry picking, or doing any of the other activities that the farm facilitates. The Giffords' only objection is to being forced to abide by the government's views on sexuality and host a same-sex wedding. The Human Rights Commission has now declared this historic belief about marriage to be “discrimination.”
The Giffords must pay a $1,500 mental anguish fine to each of the women and pay $10,000 in civil damages penalty to New York State. If they can't pay in 60 days, a nine percent interest rate will be added to that total. Like Jack Phillips of Masterpiece Cakeshop, the Giffords must also institute anti-discrimination re-education classes and procedures for their staff.
The question before all citizens is whether this law and this fine are just. Should the government be able to force family businesses to betray their consciences and participate in ceremonies that violate their beliefs? Should the government be in the business of “rehabilitating” consciences or “re-educating” its citizens to change their moral beliefs about the definition of marriage?
Government should not create special legal privileges based on sexual orientation and gender identity. Instead, government should protect the rights of Americans and the associations they form to act in the public square in accordance with their beliefs. The Giffords' case illustrates the growing conflict between religious liberty rights and laws that grant special privileges based on sexual orientation and gender identity. In a nation founded on limited government and religious freedom, government should not attempt to coerce any citizen, association, or business into celebrating same-sex relationships.
from the Wall Street Journal, 2014-May-7, by Daniel Henninger:
Texas Speech ShootoutOne of the few remaining subjects of bipartisan comity in U.S. politics is the abuse of campaign-finance laws to protect incumbents from criticism. Well, now Texas Republicans will have to defend in federal court one such bid to shut down political speech and intimidate donors—and explain why the First Amendment supposedly stops at the steps of state legislatures.
Home schoolers sue the regulators who want to shut them up.
On Friday the Texas Home School Coalition Association sued the state over an attempt to ensnare virtually all civics organizations under government control and regulate their activities. The gambit emerged from a panic in Austin over the rise of outside scrutiny and was meant to prevent the barbarians from participating in politics.
A seat in the Texas legislature was once a lifetime sinecure, but after the Supreme Court's 2010 free-speech decision in Citizens United, what liberals and some Republicans call "dark money" started to pour into the fray. Lawmakers started to lose primaries as their positions and records were exposed to voters, so in 2013 they struck back with legislation that imposed onerous reporting and disclosure requirements on groups engaged in issue advocacy as if they were a regular political committee stumping for a candidate.
Governor Rick Perry rightly vetoed the bill, citing its "chilling effect" on speech that would undermine "our democratic political process." So the Ethics Commission, the state's campaign-finance regulator, decided to restrict speech on its own with no legal basis.
At the request of legislators, the Ethics Commission is reinterpreting the existing state election code to target issue-oriented groups that also take part in elections in any way, even if such campaign advocacy is a sideline to their primary mission. Under the proposed new rules, these groups must register with the state, hire campaign accountants and attorneys, and file and disclose detailed reports on contributors, spending and their beneficiaries. Violations are a criminal offense.
The Texas Home School Coalition Association argues that this attempt to burden speech is unconstitutional. The nonprofit mainly supports non-state education through parental seminars, legal aid and the like. But the association devotes about 9% of its budget in election years to producing a voter guide, promoting endorsements of candidates who support its values, and advertising its policy positions on matters of public concern at the ballot box.
Even the Supreme Court's original campaign-finance sins, 1976's Buckley v. Valeo and a follow-on 1986 case, explicitly protected the First Amendment rights of "organizations whose major purpose is not campaign advocacy, but who occasionally make independent expenditures on behalf of candidates." These precedents say the government can only restrict core political speech to avoid corruption, but how can advocating for home schooling create a corrupt quid pro quo?
The real goal of the Ethics Commission and its legislator accessories is to reduce the influence of critics and expose donors to political intimidation. Here's an opportunity to vindicate citizen participation and accountability in government, which is what politicians fear the most.
from TownHall.com, 2014-May-14, by Katie Pavlich:
Obama Unleashes the LeftIn the U.S., the politics of the left versus the right rolls on with the predictability of traffic jams at the George Washington Bridge. It's a lot of honking. Until now. All of a sudden, the left has hit ramming speed across a broad swath of American life—in the universities, in politics and in government. People fingered as out of line with the far left's increasingly bizarre claims are being hit and hit hard.
How the government created a federal hunting license for the far left.
Commencement-speaker bans are obligatory. Former Secretary of State Condoleezza Rice withdrew as Rutgers's speaker after two months of protests over Iraq, the left's long-sought replacement for the Vietnam War. Brandeis terminated its invitation to Somali writer Hirsi Ali, whose criticisms of radical Islam violated the school's "core values."
Azusa Pacific University "postponed" an April speech by political scientist Charles Murray to avoid "hurting our faculty and students of color." Come again? It will "hurt" them? Oh yes. In a recent New Republic essay, Jennie Jarvie described the rise of "trigger warnings" that professors are expected to post with their courses to avoid "traumatizing" students.
Oberlin College earlier this year proposed that its teachers "be aware of racism, classism, sexism, heterosexism, cissexism, ableism, and other issues of privilege and oppression." The co-chair of Oberlin's Sexual Offense Policy Task Force said last month that this part of the guide is now under revision.
I think it's fair to say something has snapped.
Mozilla co-founder Brendan Eich was driven out as CEO for donating money to support California's Prop. 8. An online protest tried to kill Condi Rice's appointment to the Dropbox board of directors over Internet surveillance. Incredibly, Dropbox CEO Drew Houston didn't cave.
Earlier this year, faculty and students held a meeting at Vassar College to discuss a particularly bitter internal battle over the school's boycott-Israel movement. Before the meeting, an English professor announced the dialogue "would not be guided by cardboard notions of civility."
In the Harvard Crimson, recently, an undergraduate columnist wrote: "Let's give up on academic freedom in favor of justice." How would that work? "When an academic community observes research promoting or justifying oppression, it should ensure that this research does not continue." She explicitly cited for suppression the work of conservative Harvard government professor Harvey Mansfield.
It's obvious that the far left has decided there are no longer constraints on what it can do to anyone who disagrees with it. How did this happen? Who let the dogs out?
The answer is not university presidents. The answer is that the Obama administration let the dogs out.
The trigger event was an agreement signed last May between the federal government and the University of Montana to resolve a Title IX dispute over a sexual-assault case.
Every college administrator in the U.S. knows about this agreement. Indeed, there are three separate, detailed "Montana" documents that were signed jointly—and this is unusual—by the civil-rights divisions of the Justice and Education Departments. Remarked DoJ's Joceyln Samuels, "The government is stronger when we speak with one voice."
That's real muscle. But read the agreement. It is Orwellian.
The agreement orders the school to retain an "Equity Consultant" (yes, there is such a thing) to advise it indefinitely on compliance. The school must, with the equity consultant, conduct "annual climate surveys." It will submit the results "to the United States."
The agreement describes compliance in mind-numbing detail, but in fact the actual definitional world it creates is vague. It says: "The term 'sexual harassment' means unwelcome conduct of a sexual nature." But there are also definitions for sexual assault and gender-based harassment. All of this detailed writ is called "guidance." As in missile.
No constitutional lawyer could read this agreement and not see in it the mind of the Queen of Hearts: "Sentence first, verdict afterwards!" Indeed, the U.S. Education Department felt obliged to assert that the agreement is "entirely consistent with the First Amendment."
First Amendment? It's more like a fatwa. The Obama administration has issued a federal hunting license to deputize fanatics at any university in America. They will define who gets accused, and on what basis.
The White House enabled these forces again last week, releasing an Education Department list of 55 colleges that are "under investigation" for possible Title IX violations. Not formally cited but "under investigation." The list includes such notorious Animal Houses as Catholic University, Swarthmore, Knox College, Carnegie Mellon and Harvard Law School. In truth, every school in America is effectively on the list.
Make no mistake, universities under constant pressure from the Obama administration and the most driven members of their "communities" will comply and define due process downward. If the liability choice falls between the lawyer brigades at the Holder Justice Department or some 19-year-old student or an assistant professor who didn't post the course's "trigger warning," guess who will get tossed to the Marcusian mobs at Harvard and Vassar?
If it's possible for the left to have its John Birch moment, we're in it. Wave goodbye to cardboard civility.
from the Washington Post, 2014-Apr-10, by Charles Krauthammer:
Judicial Watch Obtains New Documents Showing IRS Targeting Came Directly From Washington D.C.New documents obtained and released through a Judicial Watch lawsuit show the targeting of tea party and conservative groups came directly out of Washington D.C., not a rogue IRS office in Cincinnati.
On July 6, 2012, former Director of the IRS Rulings and Agreements Division and current Manager of Exempt Organizations Guidance Holly Paz sent an email to IRS Attorney Steven Grodnitzky asking for an explanation of how tea party group applications were being handled. Grodnitzky responded by confirming the cases were being handled in Washington.
"EOT is working the Tea party applications in coordination with Cincy. We are developing a few applications here in DC and providing copies of our development letters with the agent to use as examples in the development of their cases. Chip Hull [another lawyer in IRS headquarters] is working these cases in EOT and working with the agent in Cincy, so any communication should include him as well. Because the Tea party applications are the subject of an SCR [Sensitive Case Report], we cannot resolve any of the cases without coordinating with Rob," Grodnitzky wrote.
When the IRS targeting scandal broke last year, officials in Washington immediately pinned the blame on the Cincinnati office. This documentation proves not only that direction was coming out of Washington, but that Washington instructed Cincinnati about how to handle tea party applications.
A new email from Lois Lerner also details how BOLO lists (be on the look out) were specifically created for tea party groups or groups with issues related to government spending, debt, taxes and "how the country is being run."
"Because the BOLO only contained a brief reference to "Organizations involved with the Tea Party movement applying for exemption under 501(c)(3) and 501(c)(4)" in June 2011, the EO Determinations manager asked the manager of the screening group, John Shafer [IRS Cincinnati field office manager], what criteria were being used to label cases as "tea party " cases. ("Do the applications specify/state ' tea party'? If not, how do we know applicant is involved with the tea party movement?") The screening group manager asked his employees how they were applying the BOLO's short –hand reference to "tea party." His employees responded that they were including organizations meeting any of the following criteria as falling within the BOLO's reference to "tea party" organizations: "1. 'Tea Party', 'Patriots' or '9/12 Project' is referenced in the case file. 2. Issues include government spending, government debt and taxes. 3. Educate the public through advocacy/legislative activities to make America a better place to live. 4. Statements in the case file that are critical of the how the country is being run. . . " Lerner wrote on April 2, 2013. "So, we believe we have provided information that shows that no one in EO "developed" the criteria. Rather, staff used their own interpretations of the brief reference to "organizations involved with the Tea Party movement," which was what was on the BOLO list."
Judicial Watch also found the IRS put red and orange alert symbols on tea party issues for heightened awareness. Here are two slides from a "Heightened Awareness Presentation" used at the IRS.
[see pages 1 and 7 of PDF document]
Further, documents show the IRS responded to "intense" requests from Democrat Senator Carl Levin to come down on conservative tax exempt groups in an effort to get rid of them, specifically the groups working against his reelection campaign.
Emails released by Judicial Watch last month show former head of taxpayer groups Lois Lerner was in contact with the Department of Justice about the potential criminal prosecution of conservative groups. In her emails about DOJ, Lerner noted that putting one person from a conservative organization in jail would create and example and "shut the whole thing down."
from the Wall Street Journal, 2014-Jul-4:
Thought police on patrolTwo months ago, a petition bearing more than 110,000 signatures was delivered to The Post, demanding a ban on any article questioning global warming. The petition arrived the day before publication of my column, which consisted of precisely that heresy.
The column ran as usual. But I was gratified by the show of intolerance because it perfectly illustrated my argument that the left is entering a new phase of ideological agitation — no longer trying to win the debate but stopping debate altogether, banishing from public discourse any and all opposition.
The proper word for that attitude is totalitarian. It declares certain controversies over and visits serious consequences — from social ostracism to vocational defenestration — upon those who refuse to be silenced.
Sometimes the word comes from on high, as when the president of the United States declares the science of global warming to be “settled.” Anyone who disagrees is then branded “anti-science.” And better still, a “denier” — a brilliantly chosen calumny meant to impute to the climate skeptic the opprobrium normally reserved for the hatemongers and crackpots who deny the Holocaust.
Then last week, another outbreak. The newest closing of the leftist mind is on gay marriage. Just as the science of global warming is settled, so, it seems, are the moral and philosophical merits of gay marriage.
To oppose it is nothing but bigotry, akin to racism. Opponents are to be similarly marginalized and shunned, destroyed personally and professionally.
Like the CEO of Mozilla who resigned under pressure just 10 days into his job when it was disclosed that six years earlier he had donated to California’s Proposition 8, which defined marriage as between a man and a woman.
But why stop with Brendan Eich, the victim of this high-tech lynching? Prop 8 passed by half a million votes. Six million Californians joined Eich in the crime of “privileging” traditional marriage. So did Barack Obama. In that same year, he declared that his Christian beliefs made him oppose gay marriage.
Yet under the new dispensation, this is outright bigotry. By that logic, the man whom the left so ecstatically carried to the White House in 2008 was equally a bigot.
The whole thing is so stupid as to be unworthy of exegesis. There is no logic. What’s at play is sheer ideological prejudice — and the enforcement of the new totalitarian norm that declares, unilaterally, certain issues to be closed.
Closed to debate. Open only to intimidated acquiescence.
To this magic circle of forced conformity, the left would like to add certain other policies, resistance to which is deemed a “war on women.” It’s a colorful synonym for sexism. Leveling the charge is a crude way to cut off debate.
Thus, to oppose late-term abortion is to make war on women’s “reproductive health.” Similarly, to question Obamacare’s mandate of free contraception for all.
Some oppose the regulation because of its impingement on the free exercise of religion. Others on the simpler (nontheological) grounds of a skewed hierarchy of values. Under the new law, everything is covered, but a few choice things are given away free. To what does contraception owe its exalted status? Why should it rank above, say, antibiotics for a sick child, for which that same mother must co-pay?
Say that, however, and you are accused of denying women “access to contraception.”
Or try objecting to the new so-called Paycheck Fairness Act for women, which is little more than a full-employment act for trial lawyers. Sex discrimination is already illegal. What these new laws do is relieve the plaintiffs of proving intentional discrimination. To bring suit, they need only to show that women make less in that workplace.
Like the White House, where women make 88 cents to the men’s dollar?
That’s called “disparate impact.” Does anyone really think Obama consciously discriminates against female employees, rather than the disparity being a reflection of experience, work history, etc.? But just to raise such questions is to betray heretical tendencies.
The good news is that the “war on women” charge is mostly cynicism, fodder for campaign-year demagoguery. But the trend is growing. Oppose the current consensus and you’re a denier, a bigot, a homophobe, a sexist, an enemy of the people.
Long a staple of academia, the totalitarian impulse is spreading. What to do? Defend the dissenters, even if — perhaps, especially if — you disagree with their policy. It is — it was? — the American way.
from the Wall Street Journal Best of the Web, 2014-May-15, by James Taranto:
Climate of ConformityAs loyal left-wingers go, Caleb Rossiter is a trouper. He's supported every left of center cause going back to the Cold War, but lately he's become a partial dissenter against the new religion of climate change. And now he's been put out in the cold.
One of our writers gets sacked for dissenting on global warming.
The Institute for Policy Studies terminated Mr. Rossiter's fellowship two days after he wrote a May 5 op-ed for these pages. Mr. Rossiter, who is also an American University adjunct professor of math and statistics, argued that the computer modeling used to support claims that the earth is headed for a climate catastrophe is far from definitive. But more important from a moral point of view, he wrote that limiting fossil fuels would make it harder for Africa to escape poverty.
In a May 7 email, IPS Director John Cavanagh and Foreign Policy in Focus co-director Emira Woods informed Mr. Rossiter that, "Unfortunately, we now feel that your views on key issues, including climate science, climate justice, and many aspects of U.S. policy to Africa, diverge so significantly from ours that a productive working relationship is untenable."
So after a 23-year association, Mr. Rossiter got the boot. Some readers may recall IPS as a stalwart opponent of U.S. policy during the long twilight struggle with the Soviet Union. Mr. Rossiter says he agrees with the institute on almost everything and calls it "the only anti-imperialist think tank in D.C."
Mr. Cavanagh says the termination was "a respect issue": Mr. Rossiter "didn't reach out to the people who work on those issues and he implied in the piece that if you didn't agree with him you wanted Africans to be without electricity in the dark. That's not our position."
Mr. Rossiter says his support for fossil fuels for Africa was well known at IPS even before his fellowship began. There is a "right to development," he told us, and when the developed world is "denying, even to South Africa which is a democratic government, that right, it strikes me as cultural imperialism." He says his "biggest problem" with climate-change theory "is with the certainty that people express. For years I have tried to get people at IPS to come to my classes where I teach statistics. I think they don't come because they think it lends credence to the other side if you debate the topic."
When Mr. Rossiter pushed for a climate debate this spring, Mr. Cavanagh replied in an email: "My opposition to a future based on fossil fuels goes way beyond the math. It is rooted in one of Emira's arguments, that as long as we're dependent on fossil fuels, we'll keep building bases in other countries to grab their oil. And, I'm watching what fossil fuel extraction has meant to indigenous peoples, to the people of Alberta."
He's referring to the oppressed self-governing people of Alberta, Canada.
Think tanks can support whoever they want, though we thought they were supposed to let people "think." Mr. Rossiter's fate is further evidence of the left's climate of intellectual conformity. If you disagree with the orthodoxy on climate change, you aren't merely wrong, you must be banished from public debate.
from BBC News, 2014-Jul-31:
Scientific AuthoritariansFlorida's Sen. Marco Rubio came under attack this week for refusing to submit to scientific authority. "I do not believe that human activity is causing these dramatic changes to our climate the way these scientists are portraying it," he said in an interview with Jonathan Karl.
The case for skepticism about climate scientists.
Nonscientist Ruth Marcus, writing for the Washington Post, declared that Rubio's words "undermine his other assertion," namely "that he is prepared to be president." Juliet Lapidos, also lacking in scientific expertise, went so far as to assert, in a New York Times blog post, that Rubio had "disqualified himself" from the presidency.
Of all the silly things written on the subject of global warming, Marcus's and Lapidos's offerings are surely among the most recent. Apart from that they're entirely typical of the genre of global-warmist opinion journalism, in which ignorant journalists taunt politicians for their ignorance but have no argument beyond an appeal to authority. Lapidos: "Does Mr. Rubio think scientists are lying? Or that they don't know what they're talking about? Either way, what leads him to believe that the 'portrait' of climate change offered by scientists is inaccurate?"
Appeals to authority aren't necessarily fallacious, except in the realm of formal deductive logic, where they entail adopting the unfounded premise that the authority is infallible. In informal logic--such as political debate at its best--an appeal to authority can be a sound argument if the authority is both relevant and trusted. And when dealing with complicated matters in which one lacks specialized expertise. As Michael Gerson puts it in the Washington Post: "Our intuitions are useless here. The only possible answers come from science. And for non-scientists, this requires a modicum of trust in the scientific enterprise."
Do you see the subtle problem with Gerson's formulation? The injunction have trust after tossing aside your intuition is at best a contradiction in terms, at worst a con.
This columnist is probably as unqualified as Marcus or Lapidos to evaluate the scientific merits of global warmism. But because we distrust climate scientists, we're with Rubio in being inclined to think it's a bill of goods. The trouble for global-warmist journalists like Marcus and Lapidos is that an appeal to the authority of a distrusted source undermines rather than strengthens one's argument.
Here, from National Review's Patrick Brennan, is the latest reason to distrust the authority of "consensus" climate scientists:
On May 8, Lennart Bengtsson, a Swedish climate scientist and meteorologist, joined the advisory council of the Global Warming Policy Foundation, a group that questions the reliability of climate change and the costs of policies taken to address it. While Bengtsson maintains he'd always been a skeptic as any scientist ought to be, the foundation and climate-change skeptics proudly announced it as a defection from the scientific consensus.Less than a week later, he says he's been forced to resign from the group. The abuse he's received from the climate-science community has made it impossible to carry on his academic work and made him fear for his own safety. A once-peaceful community, he says in his resignation letter, now reminds him of McCarthyism."I had not expect[ed] such an enormous world-wide pressure put at me from a community that I have been close to all my active life," he wrote in his resignation. "Colleagues are withdrawing their support, other colleagues are withdrawing from joint authorship."London's Daily Mail reports that Bengtsson "was also abused on science blogs, with one describing the people who condemned him as 'respectable' and that his actions amounted to 'silliness.' Another described him as a 'crybaby.' "
Bengtsson tells the Mail: "Some people like my views, other people don't, that is the way when it comes to science." That's precisely the point. Science is a methodical process of open inquiry. Those who enforce orthodoxies and engage in name-calling aren't doing science, even if they're scientists.
Gerson is correct in observing that a layman's intuition is of little use in evaluating a scientific proposition. That requires intellect and expertise, and most laymen do not have the latter. But intuition is enough to distinguish an authoritarian from a real authority.
from the Telegraph of London, 2014-Jul-4, by Sarah Knapton:
Russia enacts 'draconian' law for bloggers and online mediaA new law imposing restrictions on users of social media has come into effect in Russia.
Russia's parliament has voted through a series of internet laws Russia's parliament has voted through a series of internet laws
It means bloggers with more than 3,000 daily readers must register with the mass media regulator, Roskomnadzor, and conform to the regulations that govern the country's larger media outlets.
Internet companies will also be required to allow Russian authorities access to users' information.
One human rights group called the move "draconian".
The law was approved by Russia's upper house of parliament in April.
It includes measures to ensure that bloggers cannot remain anonymous, and states that social networks must maintain six months of data on its users.
The information must be stored on servers based in Russian territory, so that government authorities can gain access. Russia has previously blocked sites belonging to opponents of Vladimir Putin, such as Garry Kasparov Russia has blocked the sites of opponents such as Garry Kasparov
Critics see it as the latest in a series of recent moves to curb internet freedom.
'Free expression'Hugh Williamson, of New York-based Human Rights Watch, has called the law "another milestone in Russia's relentless crackdown on free expression".
"The internet is the last island of free expression in Russia and these draconian regulations are clearly aimed at putting it under government control," he added.
Opposition figures have used the internet to air their views, with some gaining millions of followers.
Commentators opposing Vladimir Putin often face restrictions in broadcast outlets and newspapers.
Russian bloggers are bracing themselves for the moment when Russia's new "information security law" comes into force on 1 August. Some already share advice on how to use proxy servers in order to access social media sites that, in their view, are under threat of being closed.
It is hard to see how the law will be enforced. The servers for most of the popular social media platforms that many Russians use are based outside Russia.
Many popular bloggers are already looking for, and apparently finding, ways to "cheat" the feature that counts page visits and keep their daily unique visitor numbers just under 3000, or to make sure that the statistics are hidden altogether.
Anton Nossik, who is considered Russia's "internet guru", wrote in his LiveJournal blog that the new law didn't threaten individual bloggers directly, but provided legal grounds to block popular social networks like Facebook, Twitter, LiveJournal and Google.
"The issue of banning all these platforms in Russia is a political one and it will be decided by only one person", Mr Nossik wrote, with a thinly veiled reference to President Vladimir Putin.
Critics blockedEarlier in the year, Russia enacted a law that gave the government powers to block websites without explanation.
In March, Moscow blocked the blog of Mr Navalny, along with two news sites and a organisation run by Garry Kasparov - a vocal critic of the Russian government.
In a statement, Russia's prosecutor general's office said the blocks were imposed because of the sites' role in helping stage illegal protests.
Earlier this week, Twitter blocked access to an anti-Kremlin account that often publishes leaked government documents, following a request by Russia's federal communications agency Roskomnadzor.
'CIA project'For many years, Russia had relatively lax internet laws.
However Moscow has recently changed its tune, with Mr Putin branding the internet an ongoing "CIA project".
He also claimed that the popular Russian search engine Yandex was controlled by foreign intelligence.
Two years ago, Russia enacted a law enabling authorities to blacklist and force certain websites offline without a trial.
The government said the legislation was designed to protect children from harmful internet content, such as pro-suicide or pornography websites.
On Thursday, lawyers for US intelligence officer Edward Snowden said the whistleblower had filed for refugee status in Russia.
Mr Snowden received temporary shelter in Russia last year.
He had evaded US authorities after he leaked classified government documents revealing mass surveillance programmes undertaken by the NSA in the US and GCHQ in the UK.
from BBC News, 2014-Jul-4, by Dave Lee:
BBC staff told to stop inviting cranks on to science programmesBBC journalists are being sent on courses to stop them inviting so many cranks onto programmes to air `marginal views'
BBC Trust says 200 senior managers trained not to insert 'false balance' into stories when issues were non-contentious
The BBC Trust on Thursday published a progress report into the corporation's science coverage which was criticised in 2012 for giving too much air-time to critics who oppose non-contentious issues.
The report found that there was still an `over-rigid application of editorial guidelines on impartiality' which sought to give the `other side' of the argument, even if that viewpoint was widely dismissed.
Some 200 staff have already attended seminars and workshops and more will be invited on courses in the coming months to stop them giving `undue attention to marginal opinion.'
“The Trust wishes to emphasise the importance of attempting to establish where the weight of scientific agreement may be found and make that clear to audiences,” wrote the report authors.
“Science coverage does not simply lie in reflecting a wide range of views but depends on the varying degree of prominence such views should be given.”
The Trust said that man-made climate change was one area where too much weight had been given to unqualified critics.
In April the BBC was accused of misleading viewers about climate change and creating `false balance' by allowing unqualified sceptics to have too much air-time.
In a damning parliamentary report, the corporation was criticised for distorting the debate, with Radio 4's Today and World at One programmes coming in for particular criticism.
The BBC's determination to give a balanced view has seen it pit scientists arguing for climate change against far less qualified opponents such as Lord Lawson who heads a campaign group lobbying against the government's climate change policies.
Andrew Montford, who runs the Bishop Hill climate sceptic blog, former children's television presenter Johnny Ball and Bob Carter, a retired Australian geologist, are among the other climate sceptics that have appeared on the BBC.
The report highlighted World at One edition in September of a landmark UN Intergovernmental Panel on Climate Change (IPCC) research project which found concluded with 95 per cent certainty that the climate is changing and that human activity is the main cause.
The programme's producers tried more than a dozen qualified UK scientists to give an opposing view but could not find one willing to do so – so they went to Mr Carter in Australia.
Pitted against Energy Secretary Ed Davey, Mr Carter described the findings of the most authoritative report ever undertaken into the science of climate change – put together by hundreds of scientists around the world – as “hocus-pocus science”.
from the Wall Street Journal, 2014-May-13, by Frances Robinson, Sam Schechner and Amir Mizroch, with Lisa Fleisher in London, Rolfe Winkler in San Francisco, Christopher Bjork and David Román in Madrid contributing:
Google reinstates 'forgotten' links after pressureAfter widespread criticism, Google has begun reinstating some links it had earlier removed under the controversial "right to be forgotten" ruling.
Articles posted online by the Guardian newspaper were removed earlier this week, but have now returned fully to the search engine.
Google has defended its actions, saying that it was a "difficult" process.
"We are learning as we go," Peter Barron, head of communications for Google in Europe, told the BBC.
Speaking to Radio 4's Today programme, he dismissed claims made on Thursday that the company was simply letting all requests through in an attempt to show its disapproval at the ruling.
"Absolutely not," he said. "We are aiming to deal with it as responsibly as possible.
"The European Court of Justice [ECJ] ruling was not something that we welcomed, that we wanted - but it is now the law in Europe and we are obliged to comply with that law."
He said Google had to balance the need for transparency with the need to protect people's identity.
'Memory hole'Mr Barron argued that the search giant was doing its best to comply with the ECJ's ruling, which stated that links to web pages can be removed from search engine if they are deemed to be "outdated, irrelevant or no longer relevant".
The ruling has come under particular scrutiny after BBC economics editor Robert Peston was notified that a blog post he had written in 2007 would be removed from appearing when a specific search was carried out on Google.
The identity of the person who made the request is not yet known, although Google has confirmed it is not the subject of the article, former Merrill Lynch boss Stan O'Neal.
Instead, the request relates to the reader comments that appear underneath the story.
In addition to Peston's blog, seven other BBC articles were singled out for removal, most of which included comment threads.
Elsewhere, the Guardian's special projects editor James Ball wrote that six of the newspaper's articles had "fallen down the memory hole".
Back in the headlinesA source has confirmed to the BBC that the Guardian articles have now been re-indexed for all relevant search terms.
Mr Ball joined those saying that Google's actions may have been "tactical".
"There are very few news organisations in the world who are happy to hear their output is being stifled," he said.
"A few automated messages later, the story is back in the headlines - and Google is likely to be happy about that."
His thoughts echoed those of Ryan Heath, spokesman for the European Commission's vice-president, who described the decision to remove a link to Peston's blog as "not a good judgement".
"Google clearly has a strong interest in making sure that they're able to work with whatever the legal requirements are, so they position themselves in a particular way over that," he said.
"It doesn't come cheap to deal with all of these requests, so they need to find some way to come up with dealing with them."
He added that the ruling should not allow people to "Photoshop their lives".
from the Wall Street Journal, 2014-Apr-2, by Charles G. Koch:
EU Orders Google to Let Users Erase PastThe EU's Court of Justice has ruled that Google must listen, and sometimes comply, when individuals ask for links to articles or websites to be removed. What does this mean for the search giant and its more than one billion users? WSJ's Jason Bellini has #TheShortAnswer.
Surprise Decision Could Prove Highly Disruptive to Search-Engine Operators
Europe's top court ruled that Google Inc. can be forced to erase links to content about individuals on the Web, a surprise decision that could disrupt search-engine operators and shift the balance between online privacy and free speech across Europe.
Under Tuesday's ruling—which doesn't trigger any specific new enforcement, but sets a strong legal precedent across the European Union—individuals can request that search engines remove links to news articles, court judgments and other documents in search results for their name. National authorities can force the search engines to comply if they judge there isn't a sufficient public interest in the information, the court ruled.
A dispute between a Madrid plastic surgeon and Google set the stage for the "right to be forgotten" battle. Read about the case. (3/7/2011)
The European Court of Justice's decision represents the strongest legal backing of what is often called the "right to be forgotten," a concept born out of 19th-century French and German legal protections that once permitted honor-based dueling—but remains unfamiliar to most Americans.
Proponents of the "right to be forgotten" argue that individuals should be able to force the removal from the Internet of information that is old or irrelevant, and could be deemed to infringe on their right to privacy. Detractors say that the ruling could lead to a massive wave of takedown requests that would swamp companies and privacy regulators with legal costs, while whitewashing the public record.
The decision "makes grim reading for Google and will delight privacy advocates in the EU," said Richard Cumbley, information-management and data-protection partner at U.K. law firm Linklaters.
The ruling was a surprise. The decision contradicted a previous opinion by one of the court's own advocates general, or senior legal advisers. That opinion, issued last year, argued that search engines like Google shouldn't be responsible for personal data that they turn up when crawling the Web for information. That move was seen at the time as a victory for Google.
Google called Tuesday's ruling disappointing, and said it needed time to analyze the implications. A person familiar with the matter said Google isn't likely to remove information globally from its search results.
Some lawyers argue that the ruling will probably only be applied for searches done and displayed in Europe, and only for European data subjects, for instance, EU citizens or European residents. The court specifically said, however, that companies can't get out of compliance simply by saying their servers are outside of Europe.
Microsoft Corp., whose search engine Bing would fall under the ruling, declined to comment. Yahoo Inc. said in a statement that it is assessing the impact for its business, adding that it supports "an open and free Internet; not one shaded by censorship."
Tuesday's ruling comes as EU parliamentarians and national governments are currently wrestling with how to craft a new privacy and data-protection law for the continent. That law has become the object of vociferous debate and lobbying between privacy-rights advocates and much of the technology industry.
The fight underscores just how significantly that new law may shape the Internet's evolving rules of the road, in Europe and in other jurisdictions. In that debate, both sides have used two competing legal principles—but two that have been embraced in different ways on opposite shores of the Atlantic.
The technology industry has rallied around freedom of speech, long a tenet of Western democracy but enshrined specifically in the U.S. Constitution as its First Amendment. Privacy-rights activists and many European officials have supported a competing notion: the "right to be forgotten." That stems from a culture in France and Germany that once allowed individuals to protect their honor and reputation—either through duels or through the courts, according to James Whitman, a professor at Yale Law School.
Companies are bracing for a tsunami of requests to take down search results following the ruling, lawyers and analysts said Tuesday.
The court decision by itself doesn't force Google to respond to requests from individuals. But if it doesn't act, individuals can go to national regulators or privacy watchdogs to ask for material to be removed.
The details under what circumstances they might be able to act still have to be worked out by national courts and legislatures, a process that could take years.
Such requests could be more difficult to handle in part because the Luxembourg-based court left ambiguity and interpretation in defining an allowable removal request, saying there must be a balance of the public interest against personal privacy.
In addition, the court ruled that search engines are "controllers" of the personal data they turn up online, potentially subjecting them to other obligations, such as notifying people that their data has been collected, lawyers say.
Tech companies and free speech advocates say the decision could lead to a chilling effect on free expression, as search engines are forced to scrub their results in Europe.
The Computer & Communications Industry Association, which includes Facebook Inc., Yahoo, Google, and Microsoft, said in a statement that the ruling "opens the door to large scale private censorship in Europe," adding that "our concern is it could also be misused by politicians or others with something to hide who could demand to have information taken down."
The ruling follows a series of legal setbacks for Google on the privacy front in recent months. The company lost related cases in both France and Germany brought by former Formula One chief Max Mosley, who had sued to force Google to automatically remove from its results images of a sadomasochistic orgy in which he participated in 2008. Google said it is appealing the cases. Mr. Mosley said Tuesday that he hoped Google would bend.
Tuesday's judgment comes in response to a 2011 request for guidance on EU privacy laws from a Spanish court. The Spanish court was dealing with a case pitting Google against Spain's data-protection regulator, which had to assess 180 cases—now 220—brought by individuals unhappy with search results relating to their name.
The case considered concerned Mario Costeja González, who complained after Google results displayed links to a 1998 announcement in the Spanish newspaper La Vanguardia. At the time La Vanguardia had published an announcement for a real-estate auction, which contained details on Mr. Costeja González's social security debts—a situation that is now fully resolved.
"There's a saying in Spanish: If to resist is to win, I have won by resisting," Mr. Costeja González said. He said he was fighting to remove information that violates the "dignity, honor and respect of a person, and which doesn't have any public relevance."
Hugo Guidotti, a Madrid surgeon, also asked Google to remove a link to a 1991 report in Spanish newspaper El País about a malpractice lawsuit against him after an allegedly botched breast surgery. The link turns up in Google searches of his name.
"I'm happy, of course," Mr. Guidotti said of the decision. "I've been fighting over this for years."
from BBC News, 2014-Jun-2, by Samanthi Dissanayake:
I'm Fighting to Restore a Free SocietyI have devoted most of my life to understanding the principles that enable people to improve their lives. It is those principles—the principles of a free society—that have shaped my life, my family, our company and America itself.
Instead of welcoming free debate, collectivists engage in character assassination.
Unfortunately, the fundamental concepts of dignity, respect, equality before the law and personal freedom are under attack by the nation's own government. That's why, if we want to restore a free society and create greater well-being and opportunity for all Americans, we have no choice but to fight for those principles. I have been doing so for more than 50 years, primarily through educational efforts. It was only in the past decade that I realized the need to also engage in the political process.
A truly free society is based on a vision of respect for people and what they value. In a truly free society, any business that disrespects its customers will fail, and deserves to do so. The same should be true of any government that disrespects its citizens. The central belief and fatal conceit of the current administration is that you are incapable of running your own life, but those in power are capable of running it for you. This is the essence of big government and collectivism.
More than 200 years ago, Thomas Jefferson warned that this could happen. "The natural progress of things," Jefferson wrote, "is for liberty to yield and government to gain ground." He knew that no government could possibly run citizens' lives for the better. The more government tries to control, the greater the disaster, as shown by the current health-care debacle. Collectivists (those who stand for government control of the means of production and how people live their lives) promise heaven but deliver hell. For them, the promised end justifies the means.
Instead of encouraging free and open debate, collectivists strive to discredit and intimidate opponents. They engage in character assassination. (I should know, as the almost daily target of their attacks.) This is the approach that Arthur Schopenhauer described in the 19th century, that Saul Alinsky famously advocated in the 20th, and that so many despots have infamously practiced. Such tactics are the antithesis of what is required for a free society—and a telltale sign that the collectivists do not have good answers.
Rather than try to understand my vision for a free society or accurately report the facts about Koch Industries, our critics would have you believe we're "un-American" and trying to "rig the system," that we're against "environmental protection" or eager to "end workplace safety standards." These falsehoods remind me of the late Sen. Daniel Patrick Moynihan's observation, "Everyone is entitled to his own opinion, but not to his own facts." Here are some facts about my philosophy and our company:
Koch companies employ 60,000 Americans, who make many thousands of products that Americans want and need. According to government figures, our employees and the 143,000 additional American jobs they support generate nearly $11.7 billion in compensation and benefits. About one-third of our U.S.-based employees are union members.
Koch employees have earned well over 700 awards for environmental, health and safety excellence since 2009, many of them from the Environmental Protection Agency and Occupational Safety and Health Administration. EPA officials have commended us for our "commitment to a cleaner environment" and called us "a model for other companies."
Our refineries have consistently ranked among the best in the nation for low per-barrel emissions. In 2012, our Total Case Incident Rate (an important safety measure) was 67% better than a Bureau of Labor Statistics average for peer industries. Even so, we have never rested on our laurels. We believe there is always room for innovation and improvement.
Far from trying to rig the system, I have spent decades opposing cronyism and all political favors, including mandates, subsidies and protective tariffs—even when we benefit from them. I believe that cronyism is nothing more than welfare for the rich and powerful, and should be abolished.
Koch Industries was the only major producer in the ethanol industry to argue for the demise of the ethanol tax credit in 2011. That government handout (which cost taxpayers billions) needlessly drove up food and fuel prices as well as other costs for consumers—many of whom were poor or otherwise disadvantaged. Now the mandate needs to go, so that consumers and the marketplace are the ones who decide the future of ethanol.
Instead of fostering a system that enables people to help themselves, America is now saddled with a system that destroys value, raises costs, hinders innovation and relegates millions of citizens to a life of poverty, dependency and hopelessness. This is what happens when elected officials believe that people's lives are better run by politicians and regulators than by the people themselves. Those in power fail to see that more government means less liberty, and liberty is the essence of what it means to be American. Love of liberty is the American ideal.
If more businesses (and elected officials) were to embrace a vision of creating real value for people in a principled way, our nation would be far better off—not just today, but for generations to come. I'm dedicated to fighting for that vision. I'm convinced most Americans believe it's worth fighting for, too.
Mr. Koch is chairman and CEO of Koch Industries.
from NewsMax, 2014-May-11:
The Indian miracle-buster stuck in FinlandHelsinki
An Indian man who made his name exposing the "miraculous" feats of holy men as tricks has fled the country after being accused of blasphemy. Now in self-imposed exile in Finland, he fears jail - or even assassination - if he returns.
When a Hindu fakir declared on live television that he could kill anybody with tantric chanting, Sanal Edamaruku simply had to take him up on the challenge.
As both were guests in the studio, the fakir was put to the test immediately.
The channel cancelled all subsequent programming and he began chanting on the spot. But as the hours passed a note of desperation crept into his raspy mantras. For his part, Edamaruku, president of the Indian Rationalist Association, showed no sign of discomfort, let alone death. He merely chortled his way through this unconventional (and unsuccessful) attempt on his life.
He has spent his life as a prominent member of India's small band of miracle-busters, men who dedicate their life to traversing the country demystifying certain beliefs.
It's a nation often associated with profound spirituality, but rationalists see their country as a breeding ground for superstition.
In the 1990s Edamaruku visited hundreds of villages replicating the apparently fabulous feats some self-proclaimed holy men became renowned for - the materialisations of watches or "holy" ash - exposing them as mere sleight of hand.
As a campaigner determined to drill home his point, sometimes with an air of goading bemusement, he has attracted critics.
He readily admits he took advantage of the explosion in Indian television channels which discovered an audience fascinated with tales of the extraordinary.
"I was campaigning in villages for so long before the television came," he says. "But some people do not like me to be going on television and reaching out to millions of people."
But in 2012, four years after his televised encounter with the fakir, a steady drip of water from the toe of a statue of Christ genuinely did, he believes, put his life in danger.
Immediately hailed as a miracle, hundreds of Catholic devotees and other curious residents flocked to the shrine in a nondescript Mumbai suburb to watch the hypnotic drip. Some even drank the droplets.
Edamaruku was challenged to investigate and so he went to the site with an engineer friend and traced the source of the drip backwards. Moisture on the wall the statue was mounted on seemed to come from an overflowing drain, which was in turn fed by a pipe that issued from a nearby toilet.
The "miracle" was simply bad plumbing, he said.
It was then that the situation turned ugly.
He presented his case in a febrile live television debate with representatives of Catholic lobby groups, while outside the studio a threatening crowd bearing sticks had gathered. He claims they were hired thugs.
For some Catholics the veracity of the miracle is no longer the point. Edamaruku, they say, insulted the Catholic church, by alleging the church manufactured the miracle to make money, by claiming the church was anti-science and even casting doubt over the miracle that ensured Mother Theresa's sainthood.
In the following weeks, three police stations in Mumbai took up blasphemy cases filed against him by Catholic groups under the notorious Section 295a of India's colonial-era penal code.
Section 295a was enacted in 1927 to curb hate speech in a restless colony bristling with religious and communal tensions. It makes "deliberate and malicious" speech insulting to religion punishable with up to three years in prison and a fine. However, some say it is frequently abused to suppress free speech.
"Under this law a policeman can simply arrest me even though there has been no investigation... they can just arrest me without a warrant and keep me in prison for a long time… That risk I do not want to take," says Edamaruku.
He applied for anticipatory bail, which would prevent police taking him into custody before any investigation - but this was rejected. At the same time, he says, he was getting threatening phone calls from policemen proclaiming their intention to arrest him and telling him that unless he apologised the complaint would never be withdrawn.
India's 'blasphemy' law India's colonial era Penal Code prohibits hate speech - section 295a says:
"Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [citizens of India]... shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both."
Key cases include:
- 1957: Ramji Lal Modi published a cartoon and article deemed offensive to Muslims - he was fined and imprisoned for 12 months
- 1996: Artist MF Husain faced a prolonged legal campaign over his images of Hindu figures - higher courts dismissed most cases but as more were registered he took Qatari citizenship
- 2008: IT worker Lakshmana Kailash spent 50 days in jail after being arrested on suspicion of posting offensive images online - police had mistakenly identified him and he was released
- 2013: Writer Yogesh Master was arrested over his book about the Hindu god Ganesh and got bail a day later
Threatening comments were posted on an online forum, he says, and contacts in Mumbai told him they had heard talk of somebody being hired to beat him in jail. Catholic groups say they aren't behind any threats Mr Edamaruku may have received.
He decided to leave early for a European lecture tour. Finland was the first country to give him a visa and he had friends on the Finnish humanist scene willing to help.
He arrived in Helsinki on a summer afternoon two years ago, the endless hours of sunlight saturating both day and night. He thought he would only stay for a couple of weeks until the furore he left behind in India had died down.
But the furore has not died down - the Catholic Secular Forum (CSF), one of the groups that made the initial complaint, still insists it will press for prosecution should he ever return.
Two years on, he is angry, bitter and defiant. Living in a small flat on the eastern edge of Helsinki, he has forced himself to adjust to an alien landscape. After the crowded hustle of Delhi, more than 3,000 miles away, he can now walk mile upon lonely mile without seeing a single person.
His closest friend here - the founder of the Finnish humanist society Pekka Elo - died late last year.
"I miss a lot of people… That I cannot meet them is something that saddens me," he says.
Since he left India, his daughter has had a child, and his mother has died.
He conducts board meetings of the Indian Rationalist Association by Skype and every morning colleagues update him on the latest tales of the supernatural and fraudulent holy men. He plots their downfall. This routine is crucial to him.
Cardinal Oswald Gracias of Mumbai tried to broker a solution by calling upon Edamaruku to apologise and on Catholic groups to drop their case in return.
But Edamaruku staunchly refuses to compromise on what he sees as his freedom of expression.
"I don't regret anything I said," he says. "I feel that I have full right to express my views... I am open for discussion and correction but I am not willing to accept anybody's bullying, change my views or submit to their pressure to apologise."
Some legal analysts think he could risk returning. The courts recognise that Section 295a is regularly misused, they point out. Writers, activists and others have been arrested and imprisoned even before charge - but most were released on bail.
But Edamaruku fears for his safety, pointing to the fate of his friend, anti-black-magic campaigner Narendra Dabholkar.
"Narendra Dabholkar… suggested that if I come to Mumbai he and his friends would be able to protect me. I was considering his proposal," Edamaruku recalls, referring to a conversation last summer.
But four days later he was murdered, a crime which many believe was linked to his campaign against magic.
So Edamaruku spends his time trudging the arresting, bleak forests of Helsinki, sometimes remembering his unconventional childhood in Kerala.
His father, born a Christian, grew up to become a rebel who was excommunicated. His mother gave birth to him in the pouring rain having fled her in-laws' Christian home because they pressured her to convert. But the family always managed to reconcile its differences. The bishops and Hindu priests among his relatives could be found sitting around one dinner table laughing at their own beliefs.
He insists he has no regrets.
"I would do it again. Because any miracle which has enormous clout at one moment, is simply gone once explained. It's like a bubble. You prick it and it is finished."
The statue still stands in that sleepy suburb of Mumbai, but it no longer drips.
from the Wall Street Journal, 2014-Apr-18, by Michael A. Carvin and Yaakov M. Roth:
Human Rights Lawyer Killed Over Pakistan's 'Blasphemy' LawA prominent human rights lawyer in Pakistan was shot dead because he was defending a man accused of "blasphemy" against the Prophet Mohammed.
Rashid Rehman Khan, a coordinator for the Human Rights Commission of Pakistan (HRCP), was killed on Wednesday when two gunmen burst into his office in the city of Multan.
Pakistan's blasphemy laws call for the death penalty for anyone convicted of defiling "the sacred name of the Holy Prophet Mohammed."
Human rights activists say the laws have contributed to violence against Christians in Pakistan. Around half of those charged under the laws since 1988 have been non-Muslims, who comprise just 2 percent of the population.
Junaid Hafeez, a lecturer in English at Multan's Bahauddin Zakariya University, was charged with blasphemy in March after radical Islamists accused him of posting "blasphemous" comments on his Facebook page.
Hafeez struggled for months to find an attorney willing to represent him before Khan stepped in, CNS News reported.
In April, the HRCP issued a statement expressing concerns about Khan's safety after he was threatened by a group of men in a Multan courtroom who told him, "You will not come to court next time because you will not exist anymore."
The U.S. Commission on International Religious Freedom (USCIRF), an independent watchdog, said it is aware of 17 Pakistanis currently on death row for blasphemy, and 19 serving life terms in prison.
One notable case that has attracted international attention involves an illiterate Christian farm laborer known as Asia Bibi, the first woman to be sentenced to death for blasphemy.
In June 2009, Muslim women she was working with in the field made derogatory statements about her religion, according to the New York Post, and Bibi responded: "I believe in Jesus Christ, who died on the cross for the sins of mankind. What did your Prophet Muhammad ever do to save mankind?"
A mob later came to her house, where she lived with her husband and five children, and beat her. She was arrested and spent a year in jail before being charged.
In November 2010, a judge sentenced her to death by hanging.
A month after her conviction, a Muslim cleric announced a reward equivalent to $10,000 to anyone who killed her, the Express Tribune in Pakistan reported.
After the governor of Punjab state, Salman Taseer, took up Bibi's case, he was shot dead by a member of his bodyguard. Hundreds of lawyers offered the killer free representation and 500 Muslim scholars gave him an honorary title as "Lover of the Prophet."
Pakistan's federal minorities minister, a Christian who also supported Bibi, was also shot dead.
Khan's murder came a week after the USCIRF repeated a recommendation that the U.S. State Department designate Pakistan, which is a major recipient of American aid, as a "country of particular concern" under U.S. law, CNS disclosed.
But the Obama State Department has chosen not to do so.
from the Wall Street Journal, 2014-Apr-27, by L. Gordon Crovitz:
Courts Should Stay Out of Political Fact-CheckingThe U.S. Supreme Court will hear oral arguments on April 22 in Susan B. Anthony List v. Driehaus, a case raising important constitutional questions about laws that purport to prohibit "false" political statements. At least 15 states, including Ohio—where this case originated—have such laws on the books, often carrying criminal penalties.
At least 15 states prohibit 'false' political statements in campaigns. That's the kind of judgment best left to voters.
Some reporters have called this a lawsuit about the "right to lie." That is a tendentious and inaccurate depiction of what the case involves. The issue is not whether campaigns should lie. Of course they should not. Rather, the question is who should decide whether a political campaign advertisement is true—courts, wielding the power to impose fines or imprisonment, or the American people, wielding the power to elect or turf the competing candidate. The stakes for free speech and the democratic process are very high.
People often disagree about what is the "truth," particularly in the political context. While websites such as PolitiFact purport to fact-check claims by politicians, even it characterizes many statements as "half-true"—one-sided, perhaps, or simply open to reasonable interpretation. The problem with a law prohibiting "false" statements about candidates is that it threatens to chill free political discourse, by silencing speakers who believe they are speaking truth but are fearful of being subjected to burdensome, costly legal proceedings by their political adversaries.
Supreme Court Justices across the political spectrum are alert to the danger. In 2012 in United States v. Alvarez, the court threw out the conviction of a man who violated the federal Stolen Valor Act by falsely claiming to have been awarded the Medal of Honor. The court ruled that the First Amendment may protect even false statements in order to protect true statements.
As Justice Stephen Breyer wrote in a concurring opinion, "criminal prosecution [of falsity] is particularly dangerous" in the "political arena," because it can "inhibit the speaker from making true statements, thereby 'chilling' a kind of speech that lies at the First Amendment's heart."
Justice Samuel Alito agreed in his dissenting opinion, warning that "any attempt by the state to penalize purportedly false speech" in political contexts "would present a grave and unacceptable danger of suppressing truthful speech."
Susan B. Anthony List v. Driehaus presents a vivid example of this "chilling" phenomenon. The Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes—the two advocacy organizations that are petitioners in this case—wanted to criticize Rep. Steve Driehaus (D., Ohio), for his 2010 vote in favor of the Affordable Care Act. The groups believe that the law includes taxpayer-funded abortion because (among other things) it subsidizes insurance plans that may include abortion coverage.
That is a perfectly reasonable characterization of the Affordable Care Act. But Mr. Driehaus argued that the law would not use federal dollars to subsidize abortion because insurers were required to "segregate" federal subsidy dollars from funds used to pay most abortion providers. Since money is fungible, that segregation rule was an accounting gimmick. Nonetheless, the Ohio Elections Commission, a panel of political appointees, voted along partisan lines that this criticism was probably "false" and thus could subject the groups to fines or even imprisonment under Ohio's false-statement law.
While the Susan B. Anthony List organization continued to press its message through radio ads, the two advocacy groups were unable to fully disseminate their message during the 2010 midterm campaign or subsequent elections. A billboard company, for example, refused to post their message after threats of legal action.
The relevant question is thus not whether there is a constitutional "right to lie," but rather whether the state may force citizens to defend the "truth" of their political critiques before bureaucrats who may well have been appointed by the politicians being criticized. Such a regime imposes substantial burdens on core political speech and therefore chills robust political debate.
The premise of the First Amendment is that the people should decide what is "true" and what is "false" in the political arena, and punish or reward political candidates at the ballot box. Political fact-checking is not a task for courts of law. Criminal penalties should not hang over the heads of speakers who disagree with their version of political "truth."
The Supreme Court will not decide this year whether Ohio's false-statement law violates the Constitution. Rather, the issue before the court now is whether groups like the Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes are even entitled to bring a First Amendment challenge to the regulatory scheme that is chilling their speech, before they are actually charged or convicted.
A favorable decision by the Supreme Court will set the stage for a full consideration of the constitutional implications of state-sponsored "truth" commissions like Ohio's. Other states with laws like Ohio's include Colorado, Florida, Michigan and Wisconsin. That vital question should be considered directly, and decided in favor of free speech.
Messrs. Carvin and Roth are attorneys at Jones Day, and represent the petitioners in Susan B. Anthony List v. Driehaus.
from the Wall Street Journal, 2014-Mar-18, by L. Gordon Crovitz:
Governments Grab for the WebThe Obama administration still doesn't seem to understand the whirlwind it reaped with its decision to give up stewardship of the open Internet. The first Internet governance conference since that surprise March announcement was held last week. The State Department issued a statement before the conference urging everyone to avoid the issue: "We would discourage meeting participants from debating the reach or limitations of state sovereignty in Internet policy."
Authoritarians accept Obama's invitation to take Internet control.
But deciding who gets to govern the Internet was precisely why many attendees from 80 countries came to last week's NetMundial conference in Brazil.
The host country's leftist president, Dilma Rousseff, opened the conference by declaring: "The participation of governments should occur with equality so that no country has more weight than others." The Russian representative objected to "the control of one government," calling for the United Nations to decide "international norms and other standards on Internet governance." Last week Vladimir Putin called the Internet a "CIA project" and said "we must purposefully fight for our interests."
Authoritarian regimes want to control the Internet to preserve their power. "National sovereignty should rule Internet policy and governance," the Chinese representative said. "Each government should build its own infrastructure, undertake its own governance and enforce its own laws." The Saudi Arabian delegate said: "International public policy in regard to the Internet is the right of governments and that public policy should be developed by all governments on an equal footing."
Even nominal supporters of the existing multi-stakeholder model embraced the end of Internet self-governance. The delegate from India declared a greater role for the world's governments "an imperative that can't be ignored." Neelie Kroes of the European Commission said: "The Internet is now a global resource demanding global governance."
Philip Corwin, a U.S. lawyer who represents Internet companies, noted that 27 of the first 30 speakers at NetMundial were from governments or U.N. agencies—at a "meeting supposedly conceived to strengthen the private-sector-led multi-stakeholder, consensus-based policy-making model."
The conference produced a "consensus" document that asserts: "The respective roles and responsibilities of stakeholders should be interpreted in a flexible manner with reference to the issue under discussion." Carl Bildt, Sweden's foreign minister, offered this translation: "Governments are more equal than other stakeholders when it comes to policy."
The Internet ran smoothly for 25 years because the U.S. ensured that the Internet Corporation for Assigned Names and Numbers, known as Icann, operated without government interference. Authoritarian regimes can censor the Internet in their own countries and jail their bloggers, but until now had no way to get control over the root zone filenames and addresses of the global Internet. Handing over control could allow them to undermine the open Internet globally, including Americans' access to U.S. websites.
Some open-Internet advocacy groups realize it is light-handed U.S. control that has allowed what political theorists would call the "ordered liberty" of Internet self-governance. "Part of the strength of the Internet over the last couple of decades has been that the technical aspects have not had direct political or government interference," Thomas Hughes of the human-rights group Article 19 told the BBC.
Michael Daniel, special assistant to President Obama, declared without apparent irony that "from the U.S. perspective, NetMundial was a huge success." But it's no accomplishment when countries that have long sought power over the Internet embrace the U.S. invitation for them to seize it.
The NetMundial conference was politicized from the start. It was held in Brazil as a favor to President Rousseff after she objected when news broke that the National Security Agency had listened in on her communications. But Sweden's Mr. Bildt pointed out at the conference that "the issue of surveillance in no way relates to the issues of the governance of the net." He added: "I'm stressing this point because sometimes the debate on surveillance is used as an argument to change the governance of the net."
Under bipartisan pressure in Washington, the Obama administration was forced to backtrack during congressional hearings earlier this month. Officials testified they won't necessarily stick to their original September 2015 date for giving up protection of the Internet. Officials said the issue could be pushed to 2019 and thus decided by the next president. Many in Congress want an up-or-down vote on ending U.S. control of the Internet, knowing lawmakers would reject the idea.
President Obama should revoke the plan to abandon the open Internet. The ugly spectacle of countries jockeying to control the Internet is a timely reminder of why the U.S. should never give them the chance.
from the Wall Street Journal, 2014-Mar-23, by L. Gordon Crovitz:
America's Internet SurrenderThe Internet is often described as a miracle of self-regulation, which is almost true. The exception is that the United States government has had ultimate control from the beginning. Washington has used this oversight only to ensure that the Internet runs efficiently and openly, without political pressure from any country.
By unilaterally retreating from online oversight, the White House pleased regimes that want to control the Web.
This was the happy state of affairs until last Friday, when the Obama administration made the surprise announcement it will relinquish its oversight of the Internet Corporation for Assigned Names and Numbers, or Icann, which assigns and maintains domain names and Web addresses for the Internet. Russia, China and other authoritarian governments have already been working to redesign the Internet more to their liking, and now they will no doubt leap to fill the power vacuum caused by America's unilateral retreat.
Why would the U.S. put the open Internet at risk by ceding control over Icann? Administration officials deny that the move is a sop to critics of the National Security Agency's global surveillance. But many foreign leaders have invoked the Edward Snowden leaks as reason to remove U.S. control—even though surveillance is an entirely separate topic from Internet governance.
According to the administration's announcement, the Commerce Department will not renew its agreement with Icann, which dates to 1998. This means, effective next year, the U.S. will no longer oversee the "root zone file," which contains all names and addresses for websites world-wide. If authoritarian regimes in Russia, China and elsewhere get their way, domains could be banned and new ones not approved for meddlesome groups such as Ukrainian-independence organizations or Tibetan human-rights activists.
Until late last week, other countries knew that Washington would use its control over Icann to block any such censorship. The U.S. has protected engineers and other nongovernment stakeholders so that they can operate an open Internet. Authoritarian regimes from Moscow to Damascus have cut off their own citizens' Internet access, but the regimes have been unable to undermine general access to the Internet, where no one needs any government's permission to launch a website. The Obama administration has now endangered that hallmark of Internet freedom.
The U.S. role in protecting the open Internet is similar to its role enforcing freedom of the seas. The U.S. has used its power over the Internet exclusively to protect the interconnected networks from being closed off, just as the U.S. Navy protects sea lanes. Imagine the alarm if America suddenly announced that it would no longer patrol the world's oceans.
The Obama administration's move could become a political issue in the U.S. as people realize the risks to the Internet. And Congress may have the ability to force the White House to drop its plan: The general counsel of the Commerce Department opined in 2000 that because there were no imminent plans to transfer the Icann contract, "we have not devoted the possibly substantial staff resources that would be necessary to develop a legal opinion as to whether legislation would be necessary to do so."
Until recently, Icann's biggest controversy was its business practice of creating many new domains beyond the familiar .com and .org to boost its revenues. Internet guru Esther Dyson, the founding chairwoman of Icann (1998-2000), has objected to the imposition of these unnecessary costs on businesses and individuals. That concern pales beside the new worries raised by the prospect of Icann leaving Washington's capable hands. "In the end," Ms. Dyson told me in an interview this week, "I'd rather pay a spurious tax to people who want my money than see [Icann] controlled by entities who want my silence."
Icann has politicized itself in the past yearby lobbying to end U.S. oversight, using the Snowden leaks as a lever. The Icann chief executive, Fadi Chehadé, last fall called for a global Internet conference in April to be hosted by Brazilian President Dilma Rousseff. Around that time, Ms. Rousseff, who garnered headlines by canceling a White House state dinner with President Obama, reportedly to protest NSA surveillance of her and her countrymen, also denounced U.S. spying in a speech at the United Nations. Mr. Chehadé said of the speech: "She spoke for all of us that day."
The Obama administration has played into the hands of authoritarian regimes. In 2011, Vladimir Putin —who, as Russia took over Crimea in recent days, shut down many online critics and independent media—set a goal of "international control over the Internet."
In the past few years, Russia and China have used a U.N. agency called the International Telecommunication Union to challenge the open Internet. They have lobbied for the ITU to replace Washington as the Icann overseer. They want the ITU to outlaw anonymity on the Web (to make identifying dissidents easier) and to add a fee charged to providers when people gain access to the Web "internationally"—in effect, a tax on U.S.-based sites such as Google and Facebook. The unspoken aim is to discourage global Internet companies from giving everyone equal access.
The Obama administration was caught flat-footed at an ITU conference in 2012 stage-managed by authoritarian governments. Google organized an online campaign against the ITU, getting three million people to sign a petition saying that "a free and open world depends on a free and open web." Former Obama aide Andrew McLaughlin proposed abolishing the ITU, calling it "the chosen vehicle for regimes for whom the free and open Internet is seen as an existential threat." Congress unanimously opposed any U.N. control over the Internet.
But it was too late: By a vote of 89-55, countries in the ITU approved a new treaty granting authority to governments to close off their citizens' access to the global Internet. This treaty, which goes into effect next year, legitimizes censorship of the Web and the blocking of social media. In effect, a digital Iron Curtain will be imposed, dividing the 425,000 global routes of the Internet into less technically resilient pieces.
The ITU is now a lead candidate to replace the U.S. in overseeing Icann. The Commerce Department says it doesn't want to transfer responsibility to the ITU or other governments, but has suggested no alternative. Icann's CEO, Mr. Chehadé, told reporters after the Obama administration's announcement that U.S. officials are "not saying that they'd exclude governments—governments are welcome, all governments are welcome."
Ms. Dyson calls U.N. oversight a "fate worse than death" for the Internet.
The alternative to control over the Internet by the U.S. is not the elimination of any government involvement. It is, rather, the involvement of many other governments, some authoritarian, at the expense of the U.S. Unless the White House plan is reversed, Washington will hand the future of the Web to the majority of countries in the world already on record hoping to close the open Internet.
Mr. Crovitz, a former publisher of The Wall Street Journal, writes the weekly Information Age column.
from the Wall Street Journal, 2014-Apr-1, by Karl Borden:
How to Save the InternetIt's been a good month for Vladimir Putin : He got Crimea and the Internet.
Congress can override the president's decision to hand over control of Web addresses and domains to an international body.
Gallows humor is not the only possible response to the Obama administration plan to give up U.S. control of the Internet to a still-to-be-determined collection of governments and international groups. Congress should instruct President Obama that if the Internet ain't broke, don't fix it.
Authoritarian governments led by Russia and China long ago found ways to block access to the Internet for their citizens. Under the new Obama plan, these regimes could also block access to the Internet for Americans.
There is recent precedent: Authoritarian governments tried to block new Internet top-level domains beyond the familiar .com and .org and .net. Saudi Arabia sought to veto the addition of .gay as being "offensive." It also tried to block .bible, .islam and .wine. Under U.S. control, the Saudis were denied their wishes. With some new post-U.S. system of governance, will .gay websites be removed from the Internet?
The plan announced on March 14 would have the U.S. give up control of the "root zone file" of the Internet and the Internet Corporation for Assigned Names and Numbers, or Icann. This root of the Internet stores all the names and addresses for websites world-wide, while Icann controls Web addresses and domains. The U.S. has used this control to ensure that websites operate without political interference from any country and that anyone can start a website, organize on Facebook or post on Twitter without asking permission.
It's easy to imagine a new Internet oversight body operating like the United Nations, with repressive governments taking turns silencing critics. China could get its wish to remove FreeTibet.org from the Internet as an affront to its sovereignty. Russia could force Twitter to remove posts by Ukrainian-Americans criticizing Vladimir Putin.
The plan announced by the Commerce Department set off enough alarm bells that officials felt obliged last week to issue a follow-up news release denying the U.S. is "abandoning the Internet" and pledging "nothing could be further from the truth." But it still has no plan to safeguard the Web against authoritarian governments. Nor is there any reassurance in a letter to the editor in Monday's Wall Street Journal from the head of Icann, Fadi Chehade. He says the Internet's "billions of diverse stakeholders all deserve a voice in its governance," and he remains on record saying that "all governments are welcome" in whatever the new governance process turns out to be.
Hearings on U.S. protection for the Internet were quickly called for the House starting in early April. One topic should be whether the executive branch of government has the unilateral authority to transfer control over Internet addresses and root zone management of domains.
Congress doubted that the president could do this on his own when the issue was considered in 2000. The General Accounting Office, now called the Government Accountability Office, concluded it was "uncertain" whether Congress has to pass a law. The Property Clause of the Constitution says Congress must pass legislation to effect a transfer of government property. Arguably the president could no more transfer the valuable control over the naming and domains of the Internet than he could give Alaska back to Russia.
Contacted by this columnist last week, a spokesman for the Commerce Department's National Telecommunications and Information Administration said the agency reviewed this legal issue and concluded the administration can act without Congress but refused to share a copy of the legal analysis. Congress should ask for a copy and do its own analysis.
Congress also could tell the Commerce Department not to carry out its plan. In 2012, both the Senate and House passed a unanimous resolution to keep the Internet "free from government control." That happened as the Obama administration was being outfoxed by Russia and China, which hijacked the U.N.'s International Telecommunication Union to legitimize control over the Internet in their countries. Protecting the Internet may be the most bipartisan issue in Congress.
Meanwhile, at a meeting over the weekend in Singapore to plan a post-U.S. system, sources say Icann's Mr. Chehade upset the "multistakeholders" in attendance by presenting a PowerPoint slide dictating a new structure that minimizes accountability for Icann. After pushback, Mr. Chehade withdrew his slide, but his intentions are clear.
The alternative to continued U.S. authority is control by an international body dominated by authoritarian regimes. In a law review article about Icann in 2000, "Wrong Turn in Cyberspace," Michael Froomkin wrote that "It is hard to see how an undemocratic solution based on the international system in which a tyranny's vote is as valid as a democracy's vote would be a material improvement on Icann itself."
Congress should quickly come to the same conclusion and act to save the Internet.
from the Wall Street Journal, 2014-May-2, by Joe Parkinson, Sam Schechner and Emre Peker:
Get Ready for the Internet Robber BaronsDo you remember the original robber barons? No, they were not the great American industrialists/philanthropists of the late 19th century—men who were unfairly tagged with the moniker. I mean the originals: the German barons of the 13th century who controlled the Rhine River, which was the primary channel of commerce and communications for central Europe. Their castles overlooked the river, and they exacted tribute from every passing ship.
If the United Nations ends up in charge, it would have a chokehold on the global economy.
The barons ignored customary "just" tolls, charged whatever the commerce would bear, exacted payment "in kind" from cargoes, and exercised power by controlling strategic territory. These Raubritter provided no real service other than the extortion implicit in allowing safe passage past their own weapons.
The world may see history repeat itself with the Internet, and the unintended consequences are likely to be profound. The United Nations has long craved the power to tax, and the Obama administration's decision to give up U.S. oversight of the domain-name system and the Internet Corporation for Assigned Names and Numbers, or Icann, may end up giving the U.N. that power.
As far back as 2001, a U.N. report, "Financing the Global Sharing Economy," proposed that the U.N. be given the authority to levy a tax on "speculative currency transactions" with a projected revenue stream north of $150 billion. Should the U.N. get control of the Internet and the global commerce it carries, that figure will be chump change.
There are political and strategic issues—involving security, privacy and censorship—associated with international control of the Internet. Should the U.N. end up in charge, it would have a chokehold on the global economy and a vast stream of revenue that would make it even more unaccountable than it already is.
All this would start modestly, of course, and it would never be called a tax. Instead, it might begin with a small fee associated with access to an obscure technical mechanism, or a small transaction charge for certain types of traffic.
But if history is any guide, the run-up to big dollars will be stunningly rapid. One need only reference the increases in U.S. federal revenues and expenditures after passage in 1913 of the 16th Amendment establishing the federal income tax. The top 1913 rate of 7% more than doubled by 1916 to 15%, then rocketed to 67% in 1917 and 77% in 1918. It always starts small.
Power follows the money, and bureaucratic appetites are voracious. Who will there be to stop the process, after all? Where is the elected legislative body that will answer to the world's population that finally pays these "fees"?
Among the many disingenuous justifications being touted for this colossal strategic mistake is that no "government control" will be imposed on the Internet. But democratic "government control" is exactly what will be needed, and it will be absent. Constitutional governments are the means by which citizens delegate the job of protecting their individual rights, and allow them to retain at least some ability to avoid tyranny. With constitutional government it becomes at least possible for citizens to say "No—No more!" No such checks are in place for a global bureaucracy that will have the power to reach into every pocket on earth.
Can anyone doubt that within just the next few decades the Internet will be the essential infrastructure for participation in even the smallest segment of the global economy? The revenue potential associated with controlling the "rivers" of the 21st-century-and-beyond will be enormous and will finance an ever-expanding international bureaucracy, likely under the aegis of the United Nations.
The robber barons of the 13th century were finally stopped only when the Rhine League, consisting of merchants and aristocrats, banded together to tear down their castles and hang them. The robber barons of the 21st century may be much more difficult to deal with.
Mr. Borden is a professor of financial economics at the University of Nebraska/Kearney.
from the Wall Street Journal, 2014-Feb-12, by James Taranto:
Turkey's Erdogan: One of the World's Most Determined Internet CensorsISTANBUL—Turkish Prime Minister Recep Tayyip Erdogan rode around Google Inc. headquarters last spring in the company's self-driving car, tried on Google Glass eyewear and vowed to keep digitizing the economy in the country he has ruled since 2003.
Some Worry Prime Minister's Tactics Could Become a Template for Other Countries
Since then, the 60-year-old Mr. Erdogan has turned his democratically elected government into one of the world's most determined Internet censors.
His political party passed laws letting him shut down websites without a court order and collect Web browsing data on individuals. He put a veteran spy in charge of Turkey's telecommunications regulator.
He also has blocked dozens of websites. Twitter Inc. was banned for two weeks in late March and early April, and Google's YouTube video-sharing service has been dark since March 27. An opposition newspaper columnist and academic was sentenced Tuesday to 10 months in jail for a tweet that insulted the prime minister, while 29 defendants are on trial on allegations that include using tweets to organize protests and foment unrest last year.
"Let people say whatever they want, we will take care of this ourselves," Mr. Erdogan said after blocking Twitter.
Tensions were high Thursday as protesters clashed with police trying to enforce a ban on the traditional march to Istanbul's Taksim Square, long symbolic as a place of dissent on May Day. Some critics of Mr. Erdogan say privately that they feel more nervous about making antigovernment statements. In cafes and bars here, people compare technical workarounds aimed at dodging the government's website blockages and surveillance efforts.
Mr. Erdogan's shake-up, a rapid-fire response to a power struggle with political enemies, has left Internet companies and government officials from Washington to Brussels worried that Turkey could become a template for other countries where leaders want to rein in the Internet without cracking down with as much force as China or Iran.
Iran is building what it calls a "halal" intranet to replace the Internet, and Chinese officials have imposed a censoring and filtering system known as the Great Firewall. In Turkey, Mr. Erdogan wants unfettered Internet access that can be blocked swiftly if Turkey's intelligence agency spots something it believes is a threat.
"This is a test case for a new authoritarian model of Internet censorship," says Zeynep Tufekci, a Turkish national who is an Internet specialist at the University of North Carolina at Chapel Hill.
Turkey's moves appear to differ from a nonbinding statement of "important values" agreed to last week by dozens of governments and groups, including Turkey, at a meeting on Internet governance. "Everyone should have the right to access, share, create and distribute information on the Internet," they concluded.
Mr. Erdogan backed down from the Twitter ban after it was overturned by Turkey's top court. But officials now are demanding that Twitter move faster to implement orders to block the accounts of specific users.
Twitter has said it is in an "ongoing dialogue" with Turkish authorities, while Google has filed appeals in three courts to end the YouTube ban. A Google spokesman said in an emailed statement: "It is obviously very disappointing to people and businesses in Turkey that YouTube is still blocked." In January, YouTube and Twitter were the third- and sixth-most-popular websites in Turkey, according to trade group IAB Turkiye.
Some of the world's most visible Internet companies are grappling with how far they are willing to go to accommodate Mr. Erdogan's government in return for continued access to the country. The dilemma is aggravated because Turkey is emblematic of the emerging markets where tech companies are looking for a big growth spurt.
Last year, online-advertising spending in Turkey reached $615 million, about 1.4% of the U.S. total, but grew more than a third faster in local-currency terms, according to data from IAB Turkiye and Interactive Advertising Bureau.
Since the crackdown, the number of formal requests to Google and Twitter to remove content objected to by government officials has surged, pressuring the companies to comply or risk recurring blackouts.
In addition, the same law that gave Mr. Erdogan the power to shut down websites allows Internet service providers in Turkey to block individual Web addresses even if tech companies refuse.
Turkey's parliament, controlled by the prime minister's Justice and Development Party, passed April 17 a separate law letting the Turkish spy agency demand without a court order any data deemed threatening to national security. That could include individual Web browsing activity, email and text messages, and company sales records. It isn't clear if officials are using those powers.
Internet service providers such as Turk Telekomunikasyon AS, in which the government owns a 30% stake, have begun using deep-packet inspection technology, which examines a computer network's traffic and can filter posts or help identify their authors, people familiar with the matter say. The technology, supplied at least partly by Palo Alto Networks Inc. of Santa Clara, Calif., mirrors aspects of what China has used to build its Great Firewall.
Mr. Erdogan's office and Turkey's telecom ministry and regulator didn't respond to phone calls or emailed questions seeking comment about the changes. Turk Telekom says in a statement that it has complied with Turkish laws. A Palo Alto spokeswoman couldn't be reached.
Turkish government officials have said repeatedly that the changes are designed to protect individual privacy and family values. Mr. Erdogan has shown no signs of backing down, especially after his party trounced the main opposition Republican People's Party in local elections in March.
Some technology investors and startup firms say Mr. Erdogan's restrictions could cripple a nascent boom. "I used to discuss Turkey's Internet market and local firms with four to six foreign investors a week," says Arda Kutsal, a former technology investment adviser who runs a tech blog called Webrazzi.
Those phone calls have stopped, he says.
Social-media companies like Twitter and YouTube "have nothing to do with freedom," said Mr. Erdogan, who is weighing a run for president and has said he would try to make the largely ceremonial post more powerful. August's election will be the first in which Turkish voters directly choose their president.
Turkey is the latest example of the standoff between tech superpowers and governments in rising economies from Russia to Indonesia where leaders are trying to assert control over the Internet.
On Monday, Russia's parliament passed new restrictions that would force many bloggers to reveal their identities and not disseminate extremist information. President Vladimir Putin is expected to sign the new laws soon.
Technology firms have asserted wide leeway to remove content from their sites but usually do so only if it violates their legal "terms of service." Those terms include copyright violations and valid legal orders.
"When we suspend or withhold accounts, we do [so] in response to user complaints or court orders, not in response to government requests," said Colin Crowell, Twitter's vice president of global public policy.
If websites or tweets violate a local law or legal order, Twitter and Google often block the content—but sometimes allow users to bypass the ban with minor tweaks to their website settings. The cat-and-mouse strategy is "part of the DNA of Silicon Valley," says a person familiar with the matter.
Officials have said Turkey's sovereignty and national interest trump the companies' rules, justifying the new laws and website blockages.
Several cabinet ministers have accused Twitter of tax evasion because it has no office in the country. Officials have demanded that the San Francisco firm open an office in Turkey. Doing so would make Twitter vulnerable to the new law that lets the spy agency demand information without a court order.
In an effort to ease tensions, Mr. Crowell and other senior Twitter staff members met in mid-April with Turkish officials. Twitter refused to open a local office but agreed to implement court orders quickly.
"Our decisions to open offices around the world are based upon whether the underlying economic climate justifies it," Mr. Crowell said. Since the meeting, Twitter has implemented at least a dozen Turkish court orders to withhold accounts or block tweets.
In contrast, Mr. Erdogan's visit last year to Silicon Valley was buoyed by a budding spirit of compromise and mutual opportunity. He visited Apple Inc., Google and Microsoft Corp.
In 2011, the Turkish leader courted Microsoft, Hewlett-Packard Co. and other tech companies to join a classroom digitization project named Fatih—or "conqueror," after an Ottoman sultan. Government officials tried to censor what could be viewed on the tablets, but students found a way to breach the device's firewalls to play games.
In late 2012, Google launched a local version of YouTube, a move that allowed the company to block access to some videos within Turkey while making them available elsewhere. Turkey dropped its demand that YouTube block globally all videos critical of the Turkish republic's founder, Mustafa Kemal Atatürk.
Mr. Erdogan's position began to shift dramatically less than a month after coming home from Silicon Valley. Tweets and other social media helped fuel antigovernment protests across Turkey that left seven people dead. The prime minister called Twitter a "menace to society," and his political party set out to fight critics online with a 6,000-person team of loyalists.
Last December, leaks of wiretapped recordings posted anonymously on Twitter and YouTube implicated dozens of Mr. Erdogan's closest allies and family members in allegedly corrupt practices.
He denied the claims, said the tapes were doctored and accused Fethullah Gulen, a U.S.-based Turkish imam with millions of followers, of masterminding the mess. The imam says he isn't responsible for the recordings
Despite criticism from Western allies and fistfights in Turkey's parliament, lawmakers approved Mr. Erdogan's move to empower the government to shut down websites without court orders. "The law was drafted hastily and with no consultation," says Gokhan Candogan, an executive at the Ankara Bar Association. The group has filed an appeal with Turkey's constitutional court.
The shake-up spread to Turkey's telecom regulator, where five top managers were replaced. "Authorities walked into their offices and said: 'Leave now. Don't even bother taking your jackets,' " says one person familiar with the incident. The agency's new boss: Ahmet Cemaleddin Celik, a longtime spy at Turkey's intelligence service.
Under Mr. Celik, the number of requests to Internet companies to remove content has soared, including more than 15 to Twitter so far this year, up from two in the last half of 2013.
On March 20, Mr. Erdogan vowed to "eradicate" Twitter. Hours later, the telecom regulator began bouncing queries for the company's website to an error message. Top Internet service providers in Turkey got phone calls from the agency with firm instructions: "Just block it now."
At Twitter headquarters, employees saw the hashtag #Twitterisblockedinturkey, an alert from Turkish users, rocket to the top of the website's hottest topics. Top officials gathered in a "virtual war room" to discuss Twitter's options.
The company decided to tweet instructions to Turkish users on how to circumvent the ban using text messages. It had done the same thing in Venezuela earlier this year.
Internet users in Turkey worked hard to evade Mr. Erdogan's crackdown. Graffiti painted on walls in Istanbul and other Turkish cities steered people to "open DNS" addresses run by Google. Some users hid messages by routing them through encrypted networks outside Turkey or software that connected through other users' computers.
Turkish President Abdullah Gul, a longtime ally of Mr. Erdogan, tweeted an objection to the prime minister's moves: "The wholesale shuttering of social media platforms cannot be approved."
Twitter tried to both resist and acquiesce to Turkey's demands. The company filed a court appeal to bring the site back to life, yet blocked an antigovernment account that used the handle @oyyokhirsiza—or "no vote for the thief." Twitter officials also left a loophole that allowed Turkish users to see the tweets by changing their location settings to a different country.
Turkish authorities blocked YouTube after demanding that the company remove videos that claimed to include a recording of Turkey's foreign minister and spy chief discussing the viability of faking an attack by Syrian terrorists to justify armed intervention inside Syria.
"We blocked YouTube to protect our national security," Mr. Erdogan said bluntly. He said the leak was "villainous and cowardly" but hasn't disputed the authenticity of the recording.
The shutdown came before lawyers at Google, based in Mountain View, Calif., had fully reviewed the demand. Within 24 hours, Google agreed to halt the videos in Turkey.
Moves by computer users to work around the bans led the Turkish government to tighten its grip even more. As the local elections loomed, Turk Telekom began impersonating servers owned by Google and other U.S. companies, according to Renesys Corp., a Manchester, N.H., company that monitors Internet performance. That let the telecom company redirect or block access to sites and monitor browsing activity, lawyers and Internet activists say.
Google criticized Turkey on the company's security blog. Turkish officials haven't publicly admitted or denied the practice, widely referred to as hijacking.
At the same time, Turkish officials prodded Google to make faster decisions about government requests to block objectionable content, people familiar with the matter say. While Google had agreed to block some of the hundreds of videos the government wanted to remove, the company resisted a push to shift more decision-making authority to employees in Turkey.
Four days after the local-election victory by Mr. Erdogan's party, the highest court in Turkey overturned the Twitter ban as "illegal and arbitrary." He complied but has said he doesn't respect the ruling.
In Istanbul, graffiti with instructions on how to sidestep Internet censorship has been covered in gray paint. When the graffiti reappears, so do government authorities, armed with more gray paint.
from the Wall Street Journal, 2014-Mar-11, by James Taranto:
OmertèCareYou've no doubt heard about the latest ObamaCare "delay"--the announcement that the Internal Revenue Service will waive fines on certain employers that do not provide workers with medical insurance. That "employer mandate," which by law took effect this year, had already been put off until 2015. Now it won't be enforced until 2016 for companies with between 50 and 99 employees, and those with 100 or more will escape fines if they offer insurance to 70% of their employees rather than the 95% stipulated in the law.
The first rule: You do not talk about perverse incentives.
Because most big employers already cover workers, "the employer mandate is not an especially important policy lever in the Affordable Care Act," shrugs the Washington Post's Sarah Kliff. The "lever" metaphor--something that moves--seems precisely chosen. The employer mandate's main intent would seem to be to prevent companies from dropping coverage, not to induce them to start. It's meant as a constraint, not a lever. Anyway, Kliff concludes that while the new delay "can matter politically," in terms of its effect on the insurance market, it "will likely amount to a relatively small, if non-existent, change." We think she means "if existent."
One problem with the employer mandate is that it creates perverse incentives. Businesses with fewer than 50 employees aren't subject to the mandate, which means that for a company on the cusp, the marginal cost of hiring the next employee could run into the tens of thousands of dollars--or, for one just above the threshold, the marginal savings from firing a worker can be considerable. Employers can also reduce their liability by replacing full-time workers with part-time ones. The exact workings of the mandate are complicated; the National Federation of Independent Business, appellant in the 2012 Supreme Court case that upheld most of ObamaCare, charts some scenarios.
By adding a new threshold--100 workers as well as 50--the new delay creates an additional perverse incentive. At least until 2016, a company that doesn't offer insurance is better off not hiring the 100th worker--or firing him. But as Fox News Channel's Chris Stirewalt points out, the regulations for the new delay attempt to forestall the latter possibility:
Obama officials made clear in a press briefing that firms would not be allowed to lay off workers to get into the preferred class of those businesses with 50 to 99 employees. How will the feds know what employers were thinking when hiring and firing? Simple. Firms will be required to certify to the IRS--under penalty of perjury--that ObamaCare was not a motivating factor in their staffing decisions. To avoid ObamaCare costs you must swear that you are not trying to avoid ObamaCare costs. You can duck the law, but only if you promise not to say so.The specific regulation is on page 124 of this PDF from the Federal Register. It stipulates that the full exemption for the mandate applies if "the employer does not reduce the size of its workforce or the overall hours of service of its employees in order to satisfy the workforce size condition"--that is, if it doesn't fire workers to get below 100:
A reduction in workforce size or overall hours of service for bona fide business reasons will not be considered to have been made in order to satisfy the workforce size condition. For example, reductions of workforce size or overall hours of service because of business activity such as the sale of a division, changes in the economic marketplace in which the employer operates, terminations of employment for poor performance, or other similar changes unrelated to eligibility for the transition relief provided in this section XV.D.6 are for bona fide business reasons and will not affect eligibility for that transition relief.Legal or regulatory changes that affect the cost of labor would fall into the category of "changes in the economic marketplace in which the employer operates." So it would be more precise to say that employers may cut back employment for any bona fide business reason except to take advantage of the ObamaCare mandate delay.
The administration thus acknowledges that its policy creates a perverse incentive and orders employers not to act upon it. But that can't be enforced. A business will take into account all relevant factors, including the additional costs imposed by ObamaCare, in making decisions about hiring and firing, including whether to terminate employees for poor performance, sell a division, etc. In practice, the new rule is a ban--under threat of criminal liability--on acknowledging the perverse incentive. Call it OmertèCare, a government-imposed conspiracy of silence.
from the Huffington Post, 2014-Feb-12, by Jack Mirkinson:
Speak of the Devil"New Democratic Strategy Goes After Koch Brothers," announced a New York Times headline last week. Here's how the story began:
The silly, sinister campaign against the Koch brothers.
Charles G. and David H. Koch, the billionaire brothers who are perhaps the best-known patrons of conservative Republican politics, are bespectacled and in their 70s. They look genial enough.But Democrats are embarking on a broad effort that aims to unmask the press-shy siblings and portray them, instead, as a pair of villains bent on wrecking progressive politics.On Thursday, the Democratic Senatorial Campaign Committee is starting a digital campaign that will use Internet ads and videos, as well as social media, to tie Republican Senate candidates to the policies and actions of the Koch brothers. Its slogan: "The G.O.P. is addicted to Koch" (pronounced coke).There are some clues here that this campaign isn't aimed at a mass audience. The Kochs are so obscure, even to Times readers, that the reporter felt obliged to identify them right off the bat, necessitating a yawner of a lead paragraph. They're also sufficiently unknown that the pun on their name needs a pronunciation guide, which deprives the joke of all its sting.
This is a play to the base--and are they ever base. Back in February 2011 we noted an anti-Koch rally in California where various "progressives" were captured on video calling for the assassination of Supreme Court justices who voted to uphold the right to free speech. Establishment Democrats like Senate Majority Leader Harry Reid haven't gone that far, but they are joining in the demonization of private citizens, following Saul Alinsky's 13th rule: "Pick the target, freeze it, personalize it, and polarize it. "
The Weekly Standard's Daniel Halper scooped the Times by more than a week when he noted this Reid floor speech Feb. 26;
"Despite all that good news, there's plenty of horror stories being told. All of them are untrue, but they're being told all over America," said Reid."The leukemia patient whose insurance policy was canceled [and] could die without her medication, Mr. President, that's an ad being paid for by two billionaire brothers. It's absolutely false. Or the woman whose insurance policy went up $700 a month--ads paid for around America by the multibillionaire Koch brothers, and the ad is false."We heard about the evils of Obamacare, about the lives it's ruining in Republicans' stump speeches and in ads paid for by oil magnates, the Koch brothers. But in those tales, turned out to be just that: tales, stories made up from whole cloth, lies distorted by the Republicans to grab headlines or make political advertisements."Mr. President, these two brothers are trying to buy America. They not only funnel money through their Americans for Prosperity, they funnel money into all kinds of organizations to do the same thing that they're doing. They're trying to buy America. I don't believe America is for sale. We'll see, Mr. President."We're torn between finding this effort sinister and ridiculous, and the truth is it's both. Alinskyite tactics were meant to be applied against the powerful by the powerless. When applied by powerful men, like Reid, who are supposed to be public servants, they take on the character of tyranny rather than rebellion.
No doubt the Kochs can take it, but note that his attack aimed not only at them but also at ordinary Americans who have been victimized by ObamaCare and spoken out about it. The aim is clearly to intimidate others and thereby suppress information about ObamaCare's failures.
On the ridiculous side, the Washington Free Beacon reports on an anti-Koch protest over the weekend staged by a pair of unions, the New York State Nurses Association and the Service Employees International Union Local 1199, along with the state chapter of the NAACP. They were protesting a new hospital wing.
Yes, you read that right. They objected to "the soon-to-be-built David H. Koch Center at New York-Presbyterian Hospital," for which the eponymous donor gave $100 million:
The donation was the largest in the hospital's history, and will presumably create a fair number of new nursing jobs. So why are the usual suspects up in arms? Well, the agitators were apparently agitated because this particular hospital didn't need all the money. Oh yeah, and because it was International Women's Day, and the Kochs are the primary funders of the "war on women's reproductive rights . . . and many other issues of concern to American women." They're also behind "the effort to defeat and repeal healthcare to all Americans," whatever that means.It means that they oppose ObamaCare, of course. And you can't fault Obama partisans for defending ObamaCare, except on the merits. But the people who staged this protest merely called attention to David Koch's nonpolitical philanthropic efforts, with which no reasonable person can find fault, and in turn to their own unreasoning hatred.
Also ridiculous, if duller, is an editorial in today's New York Times titled "The Democrats Stand Up to the Kochs":
Democrats are starting to fight back, deciding they should at least try to counter the tycoons with some low-cost speech of their own. Democrats may never have the same resources at their disposal--no party should--but they can use their political pulpits to stand up for a few basic principles, including the importance of widespread health-insurance coverage, environmental protection and safety-net programs.The leader of this effort has been Senator Harry Reid, the majority leader, who has delivered a series of blistering attacks against the Kochs and their ads on the Senate floor over the last few weeks. In addition, the Democratic Senatorial Campaign Committee has set up a website, www.kochaddiction.com, to remind voters of just what the Kochs stand for, and why they raised $407 million in the 2012 election. And individual candidates are making sure voters know who is paying for the ad blitz.The Democrats are not quite as outmatched as all that. Along with the "political pulpits" afforded by the White House and the Senate majority, they also have a $2.5 billion corporation that is happy to disseminate their propaganda free of charge.
That same company won a landmark court case half a century ago that expanded corporate free-speech rights. As the Times recounted in a Sunday editorial:
How is society to preserve open criticism of the government, while also protecting individuals from libel, or the publication of damaging false statements?Fifty years ago this Sunday, the Supreme Court answered that question with a landmark decision in New York Times [Co.] v. Sullivan. The ruling instantly changed libel law in the United States, and it still represents the clearest and most forceful defense of press freedom in American history.The case involved an ad that had appeared in The Times in 1960.The Times generally opposes free speech in political ads, a position this column deplores. But Times v. Sullivan was a great victory, and we salute the company for having done the right thing. If we didn't, we'd be as silly as the people protesting the David H. Koch Center at New York-Presbyterian Hospital.
from the Wall Street Journal, 2014-Jan-16, by Kimberley A. Strassel:
US Plummets In Press Freedom RankingsThe United States plunged 14 places in the annual Press Freedom Index released by Reporters Without Borders on Wednesday. The group said it was "one of the most significant declines" in press freedom it had tracked during 2013.
The US in now ranked 46th on the RWB list, in between Romania and Haiti. It was ranked 32nd in the 2013 index. (Finland tops the entire list.)
The press freedom group was blunt in its explanation. It cited increased efforts to track down whistleblowers and the sources of leaks, mentioning Chelsea Manning and Edward Snowden in particular. It also condemned the Justice Department's surveillance of reporters, and the continued leak battle facing New York Times journalist James Risen.
RWB also criticized the United Kingdom for what it said were its "disgraceful" threats against the Guardian newspaper, and for its detention of Glenn Greenwald's partner, David Miranda.
"Both the US and UK authorities seem obsessed with hunting down whistleblowers instead of adopting legislation to rein in abusive surveillance practices that negate privacy, a democratic value cherished in both countries," the group wrote.
The decision by RWB to rank the UK 13 places higher than the US, at 33, drew a great deal of skepticism from many in the media:
Ryan Gallagher ✔ @rj_gallagherThe US also came under fire from the Committee to Protect Journalists, which, in its annual Attacks on the Press report, said that press freedom had "dramatically deteriorated" in 2013.
UK being 13 above US in press freedom index isn't reality. US has far greater protections b/c of 1st amendment. http://www.huffingtonpost.com/josh-stearns/us-plummets-in-global-pre_b_4770182.html …
3:11 AM - 12 Feb 2014
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The US was 20th on the list just a few years ago. It fell 27 places in the 2012 index thanks to the harassment and arrest of journalists covering Occupy Wall Street, before climbing 15 places in 2013.
Read the full RWB report here.
from the Wall Street Journal, 2014-Feb-4:
IRS Targeting and 2014President Obama and Democrats have been at great pains to insist they knew nothing about IRS targeting of conservative 501(c)(4) nonprofits before the 2012 election. They've been at even greater pains this week to ensure that the same conservative groups are silenced in the 2014 midterms.
Democrats are working hard to make sure conservative groups are silenced in the 2014 midterms.
That's the big, dirty secret of the omnibus negotiations. As one of the only bills destined to pass this year, the omnibus was—behind the scenes—a flurry of horse trading. One of the biggest fights was over GOP efforts to include language to stop the IRS from instituting a new round of 501(c)(4) targeting. The White House is so counting on the tax agency to muzzle its political opponents that it willingly sacrificed any manner of its own priorities to keep the muzzle in place.
And now back to our previously scheduled outrage over the Chris Christie administration's abuse of traffic cones on the George Washington Bridge.
The fight was sparked by a new rule that the Treasury Department and the IRS introduced during the hush of Thanksgiving recess, ostensibly to "improve" the law governing nonprofits. What the rule in fact does is recategorize as "political" all manner of educational activities that 501(c)(4) social-welfare organizations currently engage in.
It's IRS targeting all over again, only this time by administration design and with the raw political goal—as House Ways and Means Chairman Dave Camp (R., Mich.) notes—of putting "tea party groups out of business."
Congressional sources tell me that House Appropriations Chairman Hal Rogers (R., Ky.) had two priorities in the omnibus negotiations. One was getting in protection for groups that morally oppose ObamaCare's contraception-coverage requirement. The other was language that would put a hold on the IRS rule.
The White House and Senate Democrats had their own wish list, including an increase in funding for the International Monetary Fund, the president's prekindergarten program and more ObamaCare dollars.
Yet my sources say that throughout the negotiations Democrats went all in on keeping the IRS rule, even though it meant losing their own priorities. In the final hours before the omnibus was introduced Monday night, the administration made a last push for IMF money. Asked to negotiate that demand in the context of new IRS language, it refused.
That's a lot to sacrifice for a rule that the administration has barely noted in public, and that then-acting IRS Commissioner Danny Werfel claimed last fall when it was introduced is simply about providing "clarity" to nonprofits. It only makes sense in a purely political context. The president's approval ratings are in the toilet, the economy is in idle, the ObamaCare debate rages on, and the White House has a Senate majority to preserve. With one little IRS rule it can shut up hundreds of groups that pose a direct threat by restricting their ability to speak freely in an election season about spending or ObamaCare or jobs. And it gets away with it by positioning this new targeting as a fix for the first round.
This week's Democratic rally-round further highlights the intensely political nature of their IRS rule. It was quietly dropped in the runup to the holiday season, to minimize the likelihood of an organized protest during its comment period. That 90-day comment period meantime ends on Feb. 27, positioning the administration to shut down conservative groups early in this election cycle.
Mr. Camp's committee has meanwhile noted that Treasury appears to have reverse-engineered the carefully tailored rule—combing through the list of previously targeted tea party groups, compiling a list of their main activities and then restricting those functions.
And an IRS rule that purports to—as Mr. Werfel explained—"improve our work in the tax-exempt area" completely ignores the biggest of political players in the tax-exempt area: unions. The guidance is directed only at 501(c)(4) social-welfare groups—the tax category that has of late been flooded by conservative groups. Mr. Obama's union foot soldiers—which file under 501(c)(5)—can continue playing in politics.
Treasury is also going to great lengths to keep secret the process behind its rule. Cleta Mitchell, an attorney who represents targeted tea party groups, in early December filed a Freedom of Information Act request with Treasury and the IRS, demanding documents or correspondence with the White House or outside groups in the formulation of this rule. By law, the government has 30 days to respond. Treasury sent a letter to Ms. Mitchell this week saying it wouldn't have her documents until April—after the rule's comment period closes. It added that if she didn't like it, she can "file suit." The IRS has yet to respond.
Mr. Camp has now authored stand-alone legislation to rein in the IRS, though the chance of Majority Leader Harry Reid (D., Nev.) allowing a Senate vote is approximately equal to that of the press corps paying attention to this IRS rule.
So that puts a spotlight on newly sworn-in IRS Commissioner John Koskinen, who vowed during his confirmation hearing to restore public trust in the agency, and now must decide whether to aid in a new and blatantly political abuse of IRS powers. The White House is using the agency to win an election this fall. They gave the proof this week.
from the Wall Street Journal, 2014-Jan-28, by James Taranto:
Taking the IRS FifthLiberals are celebrating President Obama's claim that "not even a smidgen of corruption" occurred when the IRS targeted conservative groups for additional scrutiny in an election season. Less enthused must be Lois Lerner, the former director of tax-exempt organizations who invoked her Fifth Amendment right not to testify before a House committee last May.
If everything was kosher, why won't Lois Lerner talk to Congress?
Asked by Fox News's Bill O'Reilly whether there was any corruption in the IRS handling of groups applying for tax-exempt status, Mr. Obama said "absolutely not," adding that the policy that delayed hundreds of applications by conservative groups was a case of "some bone-headed decisions out of a local office." By local he means Cincinnati.
The President's clairvoyance is extraordinary, since neither the Justice Department nor Congress has finished investigations. The congressional probes have conducted interviews with dozens of employees from the IRS and Treasury Department and reviewed hundreds of thousands of pages of documents. They have already revealed that the tea-party cases, including intrusive questionnaires, were systematically reviewed by lawyers in the IRS Washington office.
But hey, if the President says it's all kosher and the FBI doesn't intend to pursue criminal charges in its probe of the selective IRS screening procedures, why should Ms. Lerner take the Fifth? Perhaps we'll get to hear what Ms. Lerner meant when she wrote in February 2011 emails that the tea party matter was "very dangerous" and that "Cincy should probably NOT have these cases."
Meantime, the IRS has decided to reinstate bonuses for employees. Judging by the President's vote of confidence, maybe Ms. Lerner could get a retroactive performance bonus for following the IRS rule of omerta.
from the New York Times, 2014-Jan-22, printed 2014-Jan-23, p.A1, by Michael Cieply and Nicholas Confessore:
Enemies of Friends of AbeThese days "IRS Targets Conservative Group" is a dog-bites-man story. But this one was man-bites-dog by virtue of its placement: on the front page of the New York Times, a newspaper that is usually supportive of this administration's efforts to suppress domestic dissent. Put it down to a sudden outbreak of news judgment.
How the IRS chills freedom of association.
The news value to the Times may lie more in the nature of the organization than its trouble with the IRS. "In a famously left-leaning Hollywood, where Democratic fund-raisers fill the social calendar, Friends of Abe stands out as a conservative group that bucks the prevailing political winds," reads the lead paragraph.
But Friends of Abe--as in Lincoln--has sought nonprofit status under Section 501(c)(3) of the U.S. Tax Code, which would allow it to collect tax-deductible contributions. The IRS has been reviewing the application for some two years, seeking information about meetings where politicians spoke. A 501(c)(3) is prohibited from engaging in campaign activity, such as hosting a fundraiser, but as the Times notes, "tax-exempt groups are permitted to invite candidates to speak at events."
The most troubling revelation in the Times account is that at one point the IRS "included a demand--which was not met--for enhanced access to the group's security-protected website, which would have revealed member names." The Times points out that FOA "keeps a low profile and fiercely protects its membership list, to avoid what it presumes would result in a sort of 21st-century blacklist" and that "tax experts said that an organization's membership list is information that would not typically be required."
With the possible exception of academia, show business is about as totalitarian a subculture as you will find in America. Conservatives are a tiny minority, and they fear for their livelihoods if exposed. A few high-profile celebrities are exceptions--the Times mentions Gary Sinise, Jon Voight, Kelsey Grammer and Lionel Chetwynd--but for lesser-known actors and people who work in off-camera jobs, confidentiality is crucial.
This column obtained a letter that Jeremey Boreing, FOA's executive director, sent members last week in response to the Times story. Its tone demonstrates how seriously the group takes its members' privacy:
At one point, as we were pushing to get the situation resolved, the IRS asked for access to those portions of our website that contain the names of our members. We refused to give them this access, and we will continue to refuse it.We should note that, true to his word, Boreing names no names in the letter.
At present, that is no longer one of the demands that they are making. . . .
We will not name names in Hollywood--not for the New York Times and not for the IRS. If the day should come that the IRS makes seeing the list an essential demand for our determination, we will simply remove our request for exemption and structure the organization in a different manner. This office will never reveal the names of our members, and we ask that none of our members reveal their fellows either.
FOA members have good reason to fear being identified to the IRS. Last year the agency was revealed to have leaked confidential donor information about the National Organization for Marriage to the Human Rights Campaign, an antagonist in the debate over same-sex marriage. HRC promptly posted the purloined information online. LifeSiteNews.com reported in October that congressional investigators had identified the leaker, "but in an ironic twist, the Internal Revenue Service is forbidden from disclosing whether the employee has been prosecuted, fired, or even reprimanded."
The IRS's intrusive tactics thus have a chilling effect on people who wish to exercise their First Amendment right of free association without attracting public attention--or, more precisely, the attention of vicious ideological antagonists. Even calling attention to those tactics can compound the problem, as illustrated by FOA's need to reassure its members in the wake of the Times story. The gradual accretion of power by a vast administrative state, combined with an administration intolerant of dissent, has produced a clear and present danger to basic American freedoms.