May 8, 2014

"I think that there are impulses in the government every day to second guess and look into the editorial decisions of conservative publishers."

Said Federal Election Commission Chairman Lee E. Goodman, interviewed by Paul Bedard at The Washington Examiner.
“The right has begun to break the left’s media monopoly, particularly through new media outlets like the internet, and I sense that some on the left are starting to rethink the breadth of the media exemption and internet communications,” he added.
Goodman recognizes this as a mistake — or at least talks as though he does.
Noting the success of sites like the Drudge Report, Goodman said that protecting conservative media, especially those on the internet, “matters to me because I see the future going to the democratization of media largely through the internet. They can compete with the big boys now, and I have seen storm clouds that the second you start to regulate them, there is at least the possibility or indeed proclivity for selective enforcement, so we need to keep the media free and the internet free.”
The possibility or indeed proclivity for selective enforcement... and that is the problem. Once you have a complicated system of regulations, anyone who dares to speak calls attention to himself and risks accusations that he's made some misstep, and ordinary self-protective individuals will decide to keep out of the fray altogether. The tendency of those in power in government to see the rule violations in those on the other political side is bad enough as simply a possibility. But here's the Chairman of the FEC saying not just a possibility but a proclivity!

Goodman is a Republican whose chairmanship ends after this year, and he's susceptible to the accusation that he's the one who's behaving politically by getting this warning out there.

But I think the best approach is to assume that everyone with governmental power is political and to advocate the strongest legal protection for freedom of speech so they can't go where their proclivities may take them.

ADDED: In law, we often speak of a "slippery slope," which expresses the idea that if you take one step in a particular direction, the force of gravity will pull you on and on. "Proclivity," the key word in this post, comes from the Latin word for a downward slope, prōclīvitās. Notices that the English word "inclination" contains the same landscape metaphor. Some legal thinkers express contempt for arguments based on this metaphor. Slipping down imaginary hillsides seems like a phobia of puny minds, and better, wiser thinkers have the judgment to safely balance competing values. And yet "balance" is itself a metaphor, a metaphor that allays the very fear of falling that besets the slope avoiders.

56 comments:

Bob Ellison said...

"But I think the best approach is to assume that everyone with governmental power is political and to advocate the strongest legal protection for freedom of speech so they can't go where their proclivities may take them."

You are mixing up the actors, Professor. Who will advocate? Who will assume? Who will be taken?

Passive voice does not a good government make. Take action.

Ann Althouse said...

@Bob I think you know the answer to your questions. You are being disingenuous. The key word is "legal" and I am obviously talking about constitutional rights that are and should be enforceable in courts.

Original Mike said...

"But here's the Chairman of the FEC saying not just a possibility but a proclivity!"

I think even that understates the reality of politicians regulating politics. Campaign finance restrictions are intended as a weapon from the gitgo.

AustinRoth said...

"I am obviously talking about constitutional rights that are and should be enforceable in courts."

Theory vs practice, Professor.

How exactly do the courts enforce and protect those rights when, due to the current state of case law, almost no one has standing anymore to sue for such protection?

Bob Ellison said...

I don't know the answers to my questions. I think you are being obtuse. "Legal" is not a sufficient excuse.

I would like things to be obvious, but I was not talking about constitutional rights.

It is difficult to be clear in text. I may have misunderstood you.

My take was: you were not clear on what you actually advocate. I agree with freedom of speech, and more speech, and all of that. If that was your point, then I agree.

Bob Boyd said...

@ Althouse

Do you trust Hillary "to advocate the strongest legal protection for freedom of speech"?

traditionalguy said...

Free Speech is a radical concept of our founding fathers experience as Reformed Protestants.

The Government (Kings) regulation of tongues was the original tradition. Blasphemy regulations enforced by priesthoods lurked behind conversations hoping to find ways of accusing others to gain forfeiture profits.

Bills of Attainder had to be forbidden in our Constitution formation days, much to the relief of today's Koch brothers.

But as the older Proclivity to criminalize speech returns, the cutting out of tongues, and the all time classic of beheading to eliminate the tongue and mind in one blow, will become popular again.

LilyBart said...

But I think the best approach is to assume that everyone with governmental power is political....

One of the many arguments for small government.

Government is not full of 'people who care', its full of self-interested, often power-hungry people. Why do we readily give them so much power and control over us?

Anonymous said...

Can you imagine the outrage that would explode in these comments if an agent for federal government said that protecting "liberal media" was a priority?

All of Drago's sockpuppets would be pitching a huge fit.

NorthOfTheOneOhOne said...

But I think the best approach is to assume that everyone with governmental power is political and to advocate the strongest legal protection for freedom of speech so they can't go where their proclivities may take them.

Quis custodiet ipsos custodes?

Nonapod said...

It never ceases to depress me how predictably abusive non elected functionaries tend to be. It seems to be human nature that power with very little or no accountability always leads to evil by those who wield it.

And we small government people are often accused of being crazy, unreasonable, paranoid conspiracy theorists for pointing this truth of human nature out.

The Godfather said...

As I've said before in comments on the blog, the danger to freedom from legal restrictions on campaigning and campaign contributions far outweighs the danger to freedom from fat cats bankrolling the candidates the fat cats like. This is particularly true when both sides have fat cats, as is true today, but it would even be true if only (say) liberals had fat cats, and conservatives had to round up a herd of skinny cats to finance their campaigns.

Hagar said...

That would be the same U.S. courts that signed off on the Justice Department's perjurious request to access James Rosen's phone records.

kcom said...

Congress shall make no law...abridging the freedom of speech

That's some pretty strong legal protection right there.

tola'at sfarim said...

the strongest legal protection depends on the 5th justice. I wouldnt count on it

Some Seppo said...

Reminder: The Solicitor General stated in Citizens United that the FEC could ban books within two months of an election.

Big Mike said...

But I think the best approach is to assume that everyone with governmental power is political and to advocate the strongest legal protection for freedom of speech so they can't go where their proclivities may take them.

I originally thought this was obvious. Then I read Bob Ellison's comments and realized that it isn't to everybody.

Anonymous said...

Belligerent Drunk Stand-up Comic says:

Watch what you say, watch what you say (sips drink).... It seems like everyone now just wants to shut up everyone else. Don't get me wrong, there are a lot of people I WISH would shut up, but I don't want government stepping in to do it for me; I'm content to heckle...

(sips drink)

Now, I understand why you can't yell "fire" in a crowded theater, but damned if the government should prevent me from standing up in a matinee for a Disney flick and shouting "Herpes-ridden sinners." (sips drink)... I call 'em like I see 'em, people...

Just the other day I was in a bookstore, making a purchase, when the cashier looked at my selections and gave me that snide look -- you know the one, you find it on those bookstore cashier kids and Starbucks coffee-monkeys who think two years of college makes them better than you -- so I asked "Is there a problem?" And of course, she said "No problem," dripping with that Women's Studies sarcasm honed to perfection against the Evil White Male. Maybe my "Men Hate REAL Rape" T-shirt didn't help... OK -- Stop the groaning, just stop (sips drink)...

This is where we are, America: a law-abiding tax-paying citizen can't even buy six copies of "Mein Kampf" without getting attitude. What can I say, I like to give them out as gifts (sips drink), gotta keep people on their toes...(sips drink) And now no doubt I am in some secret government database as the guy who has bought twenty-seven copies of "Mein Kampf" in the last two years and an inordinate amount of duct tape (sips drink) -- let's see what happens when I apply for my gun permit...

Thank you, you've been a peach....

Gabriel said...

The "slippery slope" is not a logical fallacy in a legal system where so many decisions hang on precedents, penumbras, and emanations.

Aunty Trump said...

When the IRS is auditing 10% of the donors to the Tea Party, you have to think this is a clear intimidation tactic to silence political enemies.

Especially when they claimed to have destroyed the lists. Maybe that is why the number was only 10%.

orthodoc said...

To paraphrase JF Revel: he dark night of fascism is always descending from the right and yet lands only from the left.

orthodoc said...

To paraphrase JF Revel: he dark night of fascism is always descending from the right and yet lands only from the left.

paul a'barge said...

Goodman is a Republican whose chairmanship ends after this year, and he's susceptible to the accusation that he's the one who's behaving politically...

Occam's Razor. Occam's Razor. Occam's Razor.

damikesc said...

Why the ACLU isn't taking campaign finance reform as the second biggest assault on individual freedom (behind gun control) is lost on me.

It speaks poorly of one "side"'s argument if their main strategy is to shut down dissent.

Speech should never be outlawed. I have no problem with slander/libel, but they have to attack a specific person.

Groups who advocate these restrictions are just assuming they will never be in the minority. It's an extremely poor thought process.

paul a'barge said...

I am obviously talking about constitutional rights that are and should be enforceable in courts

Let's go back to Bob's point, which I would paraphrase this way: a body of well-crafted laws, full of lots of protections for freedoms and rights is worthless if the enforcement structure is populated by people who are p*ssies or worse.

You (Althouse) love the Law. It rocks your world. You can go on and on in classrooms and cocktail parties and on blogs about all the clever nuances of the Law.

The rest of us just want the Law to protect us and our rights.

With people like Eric Holder and Barack Obama (for whom you voted) in charge of nonenforcement, guess what good the Law is at protecting our rights?

Yep. Bumpkiss.

Are you listening, Althouse? Are you really?

Larry J said...

It's a safe bet to assume the government will seek to expand its power. We've already seen the weaponization of the IRS against political conservatives, especially the Tea Party. From Drudge today, <a href="http://www.washingtontimes.com/news/2014/may/7/house-republicans-find-10-of-tea-party-donors-audi/>House Republicans find 10% of tea party donors audited by IRS</a>. This is an audit rate over 5 times as high as the population at large (about 1.5%). We've seen Holder use prosecutorial discretion at the DoJ for political purposes. We're seeing the EPA colluding with Green organizations. We're seeing even the Park Service used for political ends.

This won't end well.

grackle said...

I get much of my news from the internet. It would be much more but I like to keep up with the main cable news sources – CNN, MSNBC CNBC and FoxNews. They are all slanted, Fox much less than the others.

Although Fox always surpasses the others in the ratings, taken as a group the others far outweigh Fox in number of viewers.

So the Left has a stranglehold on the news and on opinion, not just on cable news but also with the fast fading print journalism, entertainment, the classroom and other institutions that affect public opinion - and the Left is well aware of this dominance.

It bothers them that they cannot corner the entire opinion market – thus the attacks on freedom of speech, of which the subject of this post is only one example.

Matt Sablan said...

Without the IRS fiasco/scandal/what-have-you, I'd have said this was a bit of scandal-mongering.

Now, alas, we have to take it seriously and ask for the government for full transparency.

bbkingfish said...

A conservative has implied to a conservative publication that the government might discriminate against conservatives. (Neither the conservative apparatchik nor the publication/author saw fit to highlight any examples of that actually happening.)

In other news, somewhere this morning, a dog has bitten a man.

cubanbob said...

At the core the issue here is agency and regulatory mission-creep. The FCC needs to be slapped down by Congress by again limiting it's authority to what it was originally created and intended for: regulating broadcast frequencies and setting common broadcast and telecommunications standards. Websites aren't over the air broadcasts.

mikee said...

What this administration is doing is not a proclivity, an inclination nor a slippery slope.

It is an inclined plane wrapped around a conical insertion device; i.e., a screw.

John said...

Some slopes have to be traversed. It is the nature of government. The point of the slippery slope argument is that you should only traverse them where there are no other choices. In other words, since every law and rule creates the potential for abuse, laws should be used judiciously. We seem to have forgotten that.

Ann Althouse said...

"How exactly do the courts enforce and protect those rights when, due to the current state of case law, almost no one has standing anymore to sue for such protection?"

What are you talking about? Have you noticed the case called Citizens United? McCutcheon?

When the FEC takes action, the First Amendment is a defense and the courts look far beyond the case at hand to the more general chilling effect of the restrictions. The FEC knows this and is deterred from doing things like what Goodman is worried his co-commissioners feel like doing.

And many voices in the political arena, myself included, are supportive of the strong First Amendment position that the Supreme Court has been taking.

If you don't believe in the rule of law and the significance of constitutional law rights -- if you're a cynic about all that -- you've ceded way too much ground to the oppressors and you've left yourself with no decent options. Shame on you.

Drago said...

madisonfella: "All of Drago's sockpuppets would be pitching a huge fit."

Of course I have no sockpuppets.

Simple lefty projection again.

It would be a simple matter for meade or someone with access to verify.

Interesting that of all the comments madisonfella/inga could make, that she makes that one.

Richard Dolan said...

"But I think the best approach is to assume that everyone with governmental power is political and to advocate the strongest legal protection for freedom of speech so they can't go where their proclivities may take them."

Shorter version: Power corrupts. Indeed, it does. As the courts have often said (Judge randa quoted the line in yesterday's decision in Wisconsin), the First Amendment is rooted in distrust of government. The entire constitutional structure reflects that distrust, with power divided and different institutions of government designed to check each other. The "strongest legal protection for free speech" was Justice Black's position -- no 'tests', not even any test tests, and above all, no governmental regulation of what people can and can't say. Alas, it did not prevail (although, in its more recent cases, the SCOTUS is heading more in that direction). Today, the opposition comes mostly from the equalizers (Sotomayor, e.g.) and the utilitarians (Breyer, with his enthusiasm for the administrative state).

Hagar said...

There is a reason why Blackstone wrote that the rights of British subjects to bear arms should never be infringed upon!

President-Mom-Jeans said...

"If you don't believe in the rule of law and the significance of constitutional law rights -- if you're a cynic about all that -- you've ceded way too much ground to the oppressors and you've left yourself with no decent options. Shame on you."

Tell that to the people whose lives have been ruined already, who don't have tenure in academia, and who don't have the financial and legal resources to defend themselves, or years and years to wait for relief that may never come.

I can think of some "decent" options. They involve a little refreshment to the tree of liberty.

It is not possible to be cynical enough about government these days. The rule of law, if it ever existed, certainly is not in effect under the current regime.

Where the fuck does an Obama voter get off saying "Shame on you" to anyone?

Ugly.

Rusty said...

madisonfella said...
Can you imagine the outrage that would explode in these comments if an agent for federal government said that protecting "liberal media" was a priority?

All of Drago's sockpuppets would be pitching a huge fit.

It already is.

Rusty said...

paul a'barge said...
I am obviously talking about constitutional rights that are and should be enforceable in courts


Which are currently being selectively enforced by the Jusatice Department.
The Constitution has become toilet paper.

Yisroel said...

What are you talking about? Have you noticed the case called Citizens United? McCutcheon?

5-4 cases which could have just as easily been decided the other way. If one of those 5 has a heart attack in the next 2 years you can bet their replacement will not be so protective of our freedoms

Larry J said...

kcom said...
Congress shall make no law...abridging the freedom of speech

That's some pretty strong legal protection right there.


Congress may make no such laws, but the FEC isn't Congress and may not feel so constrained.

garage mahal said...

I can think of some "decent" options. They involve a little refreshment to the tree of liberty.

LOL. Easy, tiger. Don't let that perpetual joblessness get the better of you.

richard mcenroe said...

"How exactly do the courts enforce and protect those rights when, due to the current state of case law, almost no one has standing anymore to sue for such protection?"

And how exactly do we enforce when the sitting Attorney General arbitrarily decides which laws and right he will enforce, with the implicit support of his President?

Fen said...

LOL. You can't even admit there is a "liberal media", hence the reason you put it in scare quotes.

Oh wait, lemme guess, you have another daughter who just happens to work for the FEC and she says...

Hammond X. Gritzkofe said...

"Congress shall make no law ... abridging the freedom of speech ...."

That one's been righteous well shat upon already, McCain-Feingold 2002 being the most egregious and outrageous recent example that comes to mind. (Another reason to shun the Party obtuse enough to front for McCain.)

- Hammond (Card Carrying Libertarian)

President-Mom-Jeans said...

Awww, Tubby, are you still having a sad?

I wish I could live a life of lazy obesity, but some of us have to work to support the failed marriages and weight related health issues of Obama voters (remind you of anybody?).

Please stick to the topic at hand, which is the lefts attempts to use government to stifle political speech against anyone who doesn't share in their sick views.

You know, like what they tried to do with the John Doe investigation, until getting benchslapped silly by the federal court.

But hey, those SECRET ROUTERS!!!! will be leading to indictments any day now.

Matt Sablan said...

It could never happen here.

garage mahal said...

Please stick to the topic at hand, which is the lefts attempts to use government to stifle political speech against anyone who doesn't share in their sick views.

I've already noted several times that the lead prosecutor is a Republican who voted for Walker. The GAB board is made up of a bipartisan panel of retired judges who unanimously approved the investigation. I realize these simple truths might too much for your walnut-sized lizard brain to comprehend, but there isn't much I can do about that.

President-Mom-Jeans said...

Perhaps eating some fried cheese product or pastry will make you feel better about the continuing failure in your Ahab like quest to take down Governor Walker.

I bet that is the first time in your life where a Moby Dick analogy has been used on you in which you were not the pale blubber encased character.

Off to trivia and to enjoy drinks celebrating yet another day going by in KochWalkerStan without any SECRET ROUTER! based frog marching occurring.

Have a super day, sport.

Kirk Parker said...

damikesc,

"Speech should never be outlawed. I have no problem with slander/libel, but they have to attack a specific person..."


... AND they aren't handled via prior restraint! (Don't forget that very important difference.)


Also, let me add my hearty "second!" to what Paul A'B said at 10:07am. Even the Soviet Union had a tolerable, if not good, constitution on paper.

JamesB.BKK said...

"Once you have a complicated system of regulations, anyone who dares to speak calls attention to himself and risks accusations that he's made some misstep, and ordinary self-protective individuals will decide to keep out of the fray altogether. "

This is the essence of the campaign finance laws including publication rules. Intended?

Theranter said...

Buckle up folks.
It's starting:
http://weaselzippers.us/185377-google-cracks-down-on-wz/

JHapp said...

It amazes me that governments first reaction to anything new is to try to control it. What we need are some laws with some big penalties that prevent government from taking away our freedoms.

Gospace said...

"kcom said...
Congress shall make no law...abridging the freedom of speech

That's some pretty strong legal protection right there."

From the USSR 1936 constitution: ARTICLE 125. In conformity with the interests of the working people, and in order to strengthen the socialist system, the citizens of the U.S.S.R. are guaranteed by law:

a. freedom of speech;
b. freedom of the press;
c. freedom of assembly, including the holding of mass meetings;
d. freedom of street processions and demonstrations. ...

That's some pretty strong legal protection right there. But do you actually believe the USSR had any of these things?(and check out arts 124 and 127) A constitution works only when the courts and elites actually abide by it. Remember- our current C-in-C believes the Constitution is an obstacle preventing him from doing what is right and good.

The 2nd amendment is the amendment that protects the first, and all the others.

Hagar said...

My high school history teacher said that the Soviet Union had the most liberal constitution on earth - except for the final paragraph, which said that none of the above should apply to enemies of the state with no specifics to define an enemy of the state or just who got to determine who was or was not such a malefactor.

rhhardin said...

What are you talking about? Have you noticed the case called Citizens United? McCutcheon?

Don't let them immanentize the McCutcheon.