9 Comments

  1. ZFB2

    Will The "Human Rights Amendment" end the "right of the people to perceive all speakers" (meaning be bombarded by pro-corporate propaganda during elections) by connecting that with a restriction on the power of Congress to legislate "the free flow of money as an expression of speech of any kind …?

  2. pewestlake pewestlake

    Mostly. While the concept itself is problematic, what's worse is the remedy imposed by the Supreme Court. If it's true that the listener should have access to all possible speakers (a dubious proposition at best), then the remedy is to lower the barrier to entry for all possible speakers and ensure that as many listeners as possible have access to all potential speakers on any given topic. That would require a different approach to the unfettered "free market of ideas" than the one imposed by the Court.

    To your point, the HRA doesn't specifically address that concept or directly overturn it but it would obliterate the most common method for enforcing that ideal, spending money to reach the listener. Even if it's true that the listener has a "right" to hear all potential speakers, it is also true that government cannot "compel" the listener to hear any speakers. The people own the terrestrial TV and radio airwaves, including all the frequencies leased by commercial outlets. That means we, through our representatives, can choose how to use those airwaves, including choosing not to be listeners of political speech on those venues. It isn't "censorship" if it applies equally to all comers, as is currently the case on public broadcasting. Couple the HRA with the commerce clause to deal with cable and satellite broadcasting.

    This would give Congress an incentive to codify distinctions between free speech and the free press. Far from being a slippery slope to government censorship, both types of communication would remain fully Constitutionally protected. But the free press could receive major tax exemptions, as long as it is being truthful. Making mistakes is fine, provided they are corrected in a timely manner (within one business day, for instance), but repeated lies can lead to fines and loss of tax-exempt status, and multiple fines can eventually lead to loss of license.

    Of course, all of this depends on sending good representatives to Congress and then getting them to write good legislation. The amendment is just the first step in the process. It's probably the most critical step but we can't accomplish everything within the framework of an amendment. We must accomplish the core checks-and-balances and power issues in the Constitution and leave the rest to Congress. Dangerous as that sounds, there's no "safe" route anyway.

  3. ZFB2

    I thank you for your reply. A good response generates more questions:
    1) How could the press lose a license, if still left free by The HRA? There are some organizations that have a press that engage in propaganda to the point of lies, such as political extremists. Would they, even though their tactics are reprehensible lose their license for falsehoods, and outright libel? Could this lead to the "slippery slope" civil liberties types fear? What is libel under the law? After all "we do not want to throw the baby out with the bathwater"? Are we talking of internet, paper, radio, or TV or all four types of "press"? Also, already in our first presidential election there were really horrible things said about Washington, and Jefferson, yet there were not restrictions, but still corporate-money power was not out of hand as today.
    2) Regarding the 2nd provision of the HRA where it says "Congress shall make no law recognizing the free flow of money as an expression of speech of any kind, or as an expression of any of the rights enumerated in this constitution." Honestly, I look at this part of the proposal, and think it's too broad in its grant of Congressional power to cut the flow of money even for non election based activities such as possibly hiring a lawyer to represent oneself based on 4th, 5th, 6th, 7th and 8th amendment rights. Also, it only mentions rights enumerated in the constitution. What about "others retained by the people"? Here's a suggested revision that might help what I perceive a potential giveaway of our rights to Congress but still keeps corporations out of our elections: "Congress shall make no law recognizing the free flow of money {my suggested addition 'on behalf of election campaigns'} as an expression of speech of any kind, or as an expression of any of the rights enumerated in this constitution {“ “ “: ' or of others retained by the people'-based in 9th amendment natural law}.

    Sincerely, and Again Thanks For Your Work, and Responses To My Questions

  4. pewestlake pewestlake

    [Part 1]

    Thanks for the discussion. I need to start by saying we're partly getting into the weeds of legislation. I'm happy to talk about it but a properly worded amendment would not address some of these issues in any detail. I believe amendments, like the Constitution itself, provide the margins and nothing more. The rest is left for each generation to sort out for themselves.

    1) As of now, there is practically no libel under current law. The Supreme Court has so broadened the definition of "speech" that it now encompasses "press." And corporate propaganda outlets like Fox "News" are constitutionally protected when they air outrageous lies, bald-faced slander and even dangerous incitements to violence. But that's almost preferable to the subtly pro-corporate editorial policy of the major networks. Truth in advertising is as dead and forgotten as the Fairness Doctrine (which was poorly thought out to begin with). There is no legislation that can enforce a better editorial policy and any attempt would indeed represent a very slippery slope.

    On the other hand, truth isn't as mutable as the corporatists would have us believe. In a world screaming "2 2=5," the revolutionary is the one shouting "2 2=4!" So, we can't really enforce editorial policy. We can't dictate what content outlets must or must not convey (even the seven deadly words have breached our puritanical defenses), although we still expect Nickelodeon to avoid airing porn. We'll see how long this new wild west of broadcasting lasts. But the one thing we can do is tell the truth from a lie. You can say whatever you want as long as you put "I think" in front of it or a question mark at the end. When it's presented as fact, it should be fact. THAT can be enforced. And that's all I'm concerned with. Truth first.

    On the licensing issue, that would depend on legislation and lots and lots of wrangling. I wouldn't be too quick to program license revocation into the penalty schedule for any legislation but I would keep it as a last resort. Corporate capital punishment must always be available in the toolbox. Ignoring it is why we're where we are on these issues right now. The internet is still a wild can of worms that needs to be sorted out on multiple levels but I would still tend to treat it the same as print. All should be held to the same standards of "truthfulness" but radio and TV, by their reach and their passive nature, have a special power in our culture and warrant special treatment in the law. And I've worked in TV, radio, print and web so I'm not playing favorites here. It's just the nature of the beast.

    cont…

  5. pewestlake pewestlake

    [Part 2]

    2) I understand your concern but the problem is not with electoral law, it's with the Supreme Court's expansive interpretation of the First Amendment. Inserting any qualification (like "on behalf of election campaigns") allows the Supreme Court to interpret the new amendment in light of the Congress' power to regulate elections, instead of as a restriction on expanding the protections afforded by the First Amendment, and bypass it completely. That's the mechanism the court has been using all along to insert itself into electoral law despite the clear restriction on doing so in the Constitution. For any amendment to be effective, it must address the First and Fourteenth Amendments directly, not just tinker at the margins with Article I, Section 4 and Article III, Section 2.

    The problem is that we have two competing views of the First Amendment. The first, and the one held by the corporatists on the Supreme Court, is that there's "no such thing as too much speech" in a democracy, which is wrong. The second is that there is such a thing, such as shouting "fire" in a crowded theater that is NOT on fire or using the radio to advocate murder or even allowing porn on TV in the afternoon. We have placed qualifications on "freedom of speech" throughout our history, and still do when it comes to unions, who are far more restricted in their speech rights than for-profit corporations. It is not an acceptable form of speech to throw rocks at each other, even though, in the abstract, throwing a rock is as much an expression of speech as giving to a campaign. The Constitution should not pick the types of expression that are acceptable, nor the venues for restriction. It should create a level playing field and let Congress make the rules that achieve balance.

    I do like appending "others retained by the people," but my feeling is that that clause is already covered by the Ninth and Tenth Amendments. Since the HRA is mum on States' rights, the status quo remains for all entities below federal jurisdiction. The only difference is in the way state law must be interpreted to comply with the new constitutional paradigm, which in most instances, is either not much or not at all. If anything, the wording of the HRA strengthens individual and states rights by elevating individual rights (and those of our representatives in state government) over legal fictions of all types, as well as providing a clearer separation between "speech" and "press" by eliminating the interpretation of abstract actions (spending money, throwing a rock) as expressions of "protected" speech.

    This is exactly the kind of discussion this site is designed to foster. Thanks for the thought-provoking response and questions. Keep the intelligent conversation coming!

    Pw

  6. ZFB2

    Hello and thanks again for the answers,
    Regarding freedom of press under The Human Rights amendment's proposed money clause: if money expenditures can be regulated by Congress under the HRA, could that branch of government curtail the ability of press organizations to spend money to buy things they need to perform thus limiting them, or putting them out of business by reducing them to poverty?
    Sincerely, and Thanks for expounding on the possibilities as you have.

  7. pewestlake pewestlake

    Happy to do so. Thanks for your interest.

    Congress can do a lot to regulate and restrict the companies that produce journalism right now by virtue of the commerce clause. Issues like whether or not a media company is complying with fire or health and safety regulations, meeting minimum wage requirements or honoring their vendor contracts has virtually nothing to do with gathering and disseminating the news anyway. On the other hand, passing legislation that is designed simply to make news staffers' jobs too difficult to perform would have to be based on some compelling public need to pass judicial muster. The rights of the entity still wouldn't matter as it's the individual rights of the journalists that are being violated.

    Right now, several states are trying to legislate abortion out of existence by creating workplace regulations that are virtually impossible to meet. Those new regulations are already before at least one Federal Court and are likely to be thrown out as direct violations of the precedent established in Roe v. Wade, which is based on an individual right to privacy. The power of the government to so restrict the activity of a lawful establishment as to put it out of business is not recognized in case law and is unlikely to be acknowledged in the very legislation used to do the deed. And even if Congress did pass a law expressly for that purpose and attempted to justify the action in the wording of the legislation itself, it would still lead directly to a court challenge and likely be thrown out.

    This is a tug-of-war between the Congress' power to use the commerce clause to regulate industry and the Supreme Court's use of the Fourteenth Amendment to expand civil rights for industry that neuter the commerce clause and block the people's authority over their own artificial creations. The reason we need an amendment is because the Congress is no match for the power of the Supreme Court. When it comes to expanding civil rights for corporations, Justices like Scalia and Alito will find any excuse, constitutional or not, logical or not, to side with the corporatists. That's how they roll. We can't count on retirements leading to a less pro-corporate Bench.

    Compared to most of the other proposals, I believe the HRA is the cleanest and least invasive approach to the Constitution. In fact, it's not really changing the Constitution much at all. Neither money as speech nor natural legal personhood is mentioned anywhere in the original, nor had been accepted in case law for more than a hundred years. The HRA simply peels away these two layers of case law that have built up on its surface over the last 12 decades or so, leaving a brighter, cleaner Constitution in its wake.

  8. ZFB2

    Once again, I appreciate the posts you have done to date. Thanks for your responses to my questions.

    • pewestlake pewestlake

      My pleasure. Thanks for the relevant questions and comments. Hope you stop by often.

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