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Judge Napolitano: The heavy hand of government has silenced free speech this summer

This summer, we have all witnessed the heavy hand of government intervening in free speech, as the behavior of the Secret Service at both the Republican convention in Cleveland and the Democratic convention in Philadelphia was troubling and unconstitutional.

Though the First Amendment was originally written only to restrain Congress (“Congress shall make no law … abridging the freedom of speech”), it is now uniformly interpreted to restrict all government in America from abridging the freedom of speech.

Free Speech Is An Integral Aspect of Our Humanity

The reason this freedom is referred to as “the” freedom of speech (comment:  free speech) is to reflect the belief of the Framers that the right to speak freely is pre-political. Stated differently, the freedom of speech is an integral aspect of our humanity. The government does not grant the freedom of speech; it is prohibited from interfering with it.

This is known as a negative right, in the sense that government is negated from interfering with a personal natural right. A natural right is one whose exercise does not require a government permission slip. Speech is the classic example.

The reasons for this are numerous, and not the least of them are our natural inclinations to think as we wish and to say what we think in pursuit of happiness and personal fulfillment. The practical reasons for this right are the needs of an informed electorate to challenge the government and demand transparency and accountability.

How did this play out during the hot weeks in Cleveland and Philadelphia? Not well.

Though the political parties are private entities with their own rules, they have invited their members and supporters to these quadrennial conventions for the purpose of engaging in public political conversations.

Free Speech Should Not Involve The Heavy Hand of Government

Yet if the Republicans wanted only pro-Trump sentiments to be expressed in the hall in Cleveland and if the Democrats wanted only pro-Clinton sentiments to be expressed in the hall in Philadelphia, since neither entity is the government, both are free to abridge the freedom of speech (comment:  free speech) without legal consequences.

The consequences of such abridgments would presumably be political; those whose speech is silenced and those who oppose silencing public political speech would cast their votes against the silencers.

Yet this summer, the heavy hand of government was involved in silencing speech.

Here is the back story.

Because both Donald Trump and Hillary Clinton are entitled to Secret Service protection by virtue of a federal statute, the Secret Service either offered or demanded that it be the lead law enforcement agency providing general security — not just to Trump and Clinton but for everyone — at the conventions. In both cities, local officials went along with this.

The freedom of speech (comment: free speech) issues arose when the leadership of both conventions got so cozy with the Secret Service that they began using the federal agency as if it were private security, and they did so in such a manner as to preclude judicial intervention in aid of the freedom of speech.

Thus, when the Republican leadership wanted to quell a “Never Trump” boomlet on the convention floor, it had the Secret Service remove all reporters and producers — including some of my Fox News colleagues — from the floor. And when the Democratic leadership wanted to silence a pro-Bernie Sanders onslaught on the convention floor, it had the Secret Service confiscate Sanders placards from delegates on the floor.

The government removal of the press by command of the Republicans and the government removal of Sanders placards by command of the Democrats constitute not only an unheard-of commandeering of the government’s coercive powers for a private purpose but also the government’s abridging the freedom of speech. And all this was done quickly and without notice — and without an opportunity for redress to the courts.

The first duty of government is to preserve life, liberty and property. It is a strange and dangerous government that stifles freedom for some fleeting private purpose. It is equally strange that a freedom-loving people would tolerate this.

The whole purpose of the First Amendment and its underlying values is to encourage open, wide, robust, unbridled debate about the policies and the personnel of the government. The prevailing judicial interpretations of these values quite properly keep the government out of the business of assessing the value and propriety of public political speech.

The First Amendment demands that the test for acceptance or rejection of speech in the marketplace of ideas be made by individuals — uninfluenced, undeterred and unmolested by the government.

When the government stifles free choice in an area such as speech, it is no longer the people’s servant. It has become their master. Do you know anyone outside the government who wants that?

Source:  Fox News.  We have added section headings, information, and/or comments for clarity.

Tim Kaine’s Church Just Proved Donald Trump’s Point About Religious Freedom

During his acceptance speech on Thursday night, Donald Trump’s only mention of religious liberty, comment: religious freedom, was to condemn the portion of the tax code that prevents churches from advocating for political candidates. Except the way he put it was a bit different:

“An amendment, pushed by Lyndon Johnson many years ago, threatens religious institutions with a loss of their tax-exempt status if they openly advocate their political views.”

Technically they’re not prohibited from advocating political views, just endorsements of candidates.

Here’s the full explanation from the IRS:

“Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.”

“Certain activities or expenditures may not be prohibited depending on the facts and circumstances. For example, certain voter education activities (including presenting public forums and publishing voter education guides) conducted in a non-partisan manner do not constitute prohibited political campaign activity. In addition, other activities intended to encourage people to participate in the electoral process, such as voter registration and get-out-the-vote drives, would not be prohibited political campaign activity if conducted in a non-partisan manner.”

“On the other hand, voter education or registration activities with evidence of bias that (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates, will constitute prohibited participation or intervention.”

Thankfully the regulation is unenforced. But its presence on the books has a huge and unconstitutional chilling effect on free speech by religious groups.

Of all the churches to make the case for the stupidity of this draconian restriction, who would have expected the first one after Trump’s speech to be Tim Kaine’s Roman Catholic Church in Virginia!

That’s exactly what happened, inadvertently. Journalist Betsy Klein covers the 2016 race for CNN. She co-wrote a story about Kaine’s visit to St. Elizabeth Catholic Church in Richmond.

She noted that the church tweeted out its congratulations at 9:40 PM on July 22, writing, “Congratulations to our member Tim Kaine on the Vice President selection. We are all very proud!!!” The tweet included a link to a Facebook post. However, not only was that tweet deleted sometime after it went up, the entire Twitter account was taken down.

What a great example of the stupidity and danger of this IRS rule. Kaine’s own home parish can’t even congratulate him without violating it.

Another point about the rule. Saying that churches don’t need to endorse candidates, or saying that you personally don’t feel the need to endorse candidates, in no way justifies telling other people what they can and can’t do according to their conscience.

As a confessional Lutheran, I happen to personally agree with Nicholas G. Hahn III of the Detroit News that the pulpit is not for politicking. But religious freedom doesn’t mean only permitting things that you agree with. If other religious traditions see no conflict between politics and the pulpit, that’s their business.

The Ban Threats Religious Freedom

Don Byrd of the Baptist Joint Committee [that used to be] For Religious Liberty wrote:

“[F]ar from being a threat to religious liberty, the ban serves to protect houses of worship from needless and harmful entanglement with political operations. It safeguards the integrity of our tax exemption and political finance systems. In short, it is good for both church and state. It also is simply a matter of fairness: other 501(c)(3) tax exempt organizations may not endorse political candidates without risking that status. Why should churches be treated any differently?”

Why should religious institutions have religious freedom that non-religious institutions don’t have? I don’t know, why don’t you consult the First Amendment in the Bill of Rights to the U.S. Constitution.

It’s not about whether you personally think it’s a “needless and harmful entanglement” for a congregation to say “attaboy” to its member running for high office but whether you have the right to tell a completely different religious group how they get to practice their religion. You don’t. And punishing people with taxation for having a different doctrinal approach than you do is not how religious freedom works.

Pulpit freedom may not be the biggest religious liberty threat facing believers in the United States, but it’s not insignificant. This is something on which Tim Kaine and Donald Trump can and should agree.

Source:  The Federalist.  We have added section headings, information, and/or comments for clarity.

Democrats Keep Trying To Suppress Free Speech

Under the guise of regulating campaign finance, Democrats are waging a never-ending campaign to suppress free speech.

James Madison once sounded a warning about how liberty might one day be stolen away from the American people: “I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”

Madison was right. Today, Democrats have made a habit of attempting “gradual and silent encroachments” on free speech. The most recent example came just last week when it was revealed that Democrats on the Federal Election Commission voted in May to punish Fox News for hosting the GOP presidential “undercard” debates last fall. This was the first time in the commission’s 41-year history that its members voted to punish a news outlet’s presidential debate sponsorship.

All three democrats on the FEC claimed the news network’s sponsorship of the debates ran afoul of an obscure federal law regulating campaign finance, and held that it constituted an illegal corporate contribution to the candidates.

This strange legal theory came from Mark Everson, a former IRS commissioner who was at one point a 2016 GOP candidate. He barely registered in the polls and therefore wasn’t invited to Fox’s undercard debate. Likely in a fit of pique, he filed a complaint with the FEC. Thankfully, the commission’s three Republicans voted against their Democratic colleagues, resulting in a 3-3 tie and therefore no punishment for Fox News.

But the vote represents a troubling precedent. If Democrats on the FEC had gotten their way, the commission could in theory regulate—that is, suppress—almost any editorial coverage of presidential candidates under an expansive interpretation of federal campaign finance law. And they could pick and choose which new outlets to punish. It’s not surprising that the targeted network in this case was Fox. Recall that CNN and CNBC also held undercard debates, but they faced no complaints and thus no action from the FEC.

Democrats’ Forever War Against Citizens United

The FEC dustup is just Democrats’ latest attempt to undermine free speech under the guise of “campaign finance reform.” Back in September 2014, when Democrats still controlled the Senate, then-Majority Leader Harry Reid led an effort to pass a constitutional amendment that would have given Congress and state legislatures the power to determine what does and does not count as political speech.

 The measure, which failed on a 54-42 vote, would have “fixed” the First Amendment by overturning Citizens United, the 2010 Supreme Court case protecting free speech that liberals can’t seem to wrap their heads around. At the time, Senate Democrats claimed their self-styled amendment to the First Amendment would get “dark money” out of politics by limiting individuals’ ability to combine resources and advocate for or against a candidate or policy.

Democratic Attempts to Suppress Political and Free Speech

Put another way, Democrats were trying to limit combinations of what people can say and when. Put in even more blunt terms, they were trying to suppress political speech.

Recall that the Citizens United case concerned a documentary film about Hillary Clinton, of all people. A non-profit group, Citizens United, wanted to air their documentary, Hillary: The Movie, ahead of the January 2008 Democratic primaries. Federal law barred this as “electioneering communication,” and the nonprofit sought a declaration from a federal judge to allow them to show and promote their film.

The case went to the Supreme Court, which correctly reasoned that if the FEC could prohibit Citizens United from showing their film during primary season, they could also prevent book publishers from coming out with election-year titles about candidates, or newspapers from printing editorials about candidates, or pretty much any speech anywhere that had anything to do with politics. The FEC, in other words, could more or less shut down the First Amendment on the pretext that a film—or a book or an article—violates campaign finance law.

The dissenting justices argued that corporations aren’t individuals, and thus don’t enjoy First Amendment protection of free speech. Liberals have since taken up this argument with fervor, as seen in the campaign rhetoric of Sen. Bernie Sanders and Co. Ironically, no small number of elite media types subscribes to this line. It apparently hasn’t occurred to them that if the FEC can tell a conservative nonprofit it’s not allowed to air a film because it might make Hillary Clinton look bad going into the primaries, then there’s nothing to stop the FEC from telling The New York Times not to run a story or HarperCollins not to publish a book.

Liberals: Americans Too Stupid to Think for Themselves

The case led to a change in federal campaign finance law that has since allowed for Super PACs, those menacing combinations that liberals loath and fear—even though this election season has shown how weak and ineffectual they are. Jeb Bush’s Super PAC, for example, spent a whopping $130 million, but Bush got less than 300,000 primary votes before he dropped out after failing to make double digits in South Carolina.

Liberals fear big money drowns out competition, hence their asinine rallying cry to “get money out of politics.” But exercising free speech in a way that will influence others almost always requires the corporate action of individuals and spending at least some money. That’s true whether you’re shooting a documentary or publishing a magazine—or, in the case of Fox News, hosting a presidential primary debate.

Liberals also accuse conservatives of twisting the meaning of free speech by maintaining that corporations do, by definition, have free speech rights because corporations are, after all, made of individuals acting together with common purpose. In fact, liberals are the ones guilty of twisting language. They would flag any “speech” they don’t like, call it a “campaign contribution,” and deploy the FEC to shut it down.

Justice Antonin Scalia, addressing concerns about the rise of Super PACs in the wake of Citizens United, summed up the entire issue as only he could: “I don’t care who is doing the speech—the more the merrier. People are not stupid. If they don’t like it, they’ll shut it off.”

Democrats take the opposite view. They think Americans are stupid—and that it’s up to the FEC, or Senate Democrats, to decide when it should be shut off.

Source:  The Federalist