RIVERSIDE, Conn. – The First Amendment was adopted to protect free speech and a free press from the government. Knowing what the government is doing is essential in a democracy and to people governing themselves.
Author and former Executive Vice President and General Counsel for NBC, Corydon B. Dunham, warns that some would limit those freedoms.
President Obama appointed fellow law professor Cass Sunstein as head of the White House Office of Information and Regulatory Affairs. Prof. Sunstein has written that to meet the needs of the modern regulatory state, “free speech principles would have to be revised in some dramatic ways.” He has long called for a New Deal for the First Amendment, with government agencies having more control over speech and press as they did in the Roosevelt New Deal over property. Congress and government agencies would also deal with Constitutional issues, including speech and press, and courts would play a secondary role.
He says that when speech in the marketplace becomes unbalanced with one idea receiving more endorsement than another, the government should intervene to create balance. Associate Justice of the Supreme Court, Elena Kagan (former Chicago Law Professor with Pres. Obama) joins him but says that the First Amendment requiresthe government to revise the news report to bring about balance as if it were an ideal debate.
A government rule was tried before to provide balance and fairness in debate. A majority vote of five politically-appointed Commissioners who did not see the event or the video footage would decide on doctrine violations and order revisions of news coverage.
Investigations into news judgments and reporters coverage were burdensome and were conducted with threats of loss of license. The Federal Communications Commission itself finally vacated the rule. It found that in practice, such a rule suppressed news, chilled speech and prevented criticism of the President. It was abused for partisan purposes. The reviewing courts agreed.
Various proposals and other rules were considered under changed names as is shown in my book “Government Control of News, A Constitutional Challenge.” To require Congress and its agencies to ignore the Constitutional method of government as Prof Sunstein suggests and take over many functions of the executive, legislature, and judicial branches is to create a different and engorged committee form of national government which will be characterized at the very least by mistakes and misunderstandings to the injury of the public. The danger to our form of government can readily be seen.
Recently, this government secretly subpoenaed Associated Press reporters and others to obtain the names of their sources which of course, also send a warning to citizens not to talk to the press. This shuts down a significant part of news coverage, particularly about the government. As the head of the AP comments, pretty soon as that speech is eliminated, we will only know what the government wants us to know.
But there is an even surer and more direct way of censoring dissent. A group of over 30 publications has written to the President making public his shutting down the news they publish for his political purposes.
The Attorney General used his power to try to imprison a reporter, subpoenaed that reporter to get the name of his confidential source by accusing him of treason and for many months used the threat of jail if the reporter did not comply. The reporter was asking direct questions of the usual sort, which must be done for any appropriate news coverage. The reporter has now been released. But the government message is clear.
The event was described by that reporter as leaving the First Amendment "wrecked” and the Attorney General as the “greatest enemy of press freedom in a generation.”
When it is important to them, this administration will not tolerate other views, other actions.