02 June, 2012

The Candidates and the First Amendment

It’s hard to believe that it’s been almost four years since I last wrote on this. Quite a bit has changed since then, but one thing hasn’t changed. We once again have two candidates running for President from the major parties. So, once again, I’ll be looking at their records from a civil libertarian perspective.

For those that missed this the last time, I examined and compared then Senator Barack Obama (D-IL) and Senator John McCain (R-AZ) based on where they stood on the following issues: First Amendment, Second Amendment, Third Amendment, Fourth Amendment, Fifth Amendment, Sixth Amendment, Seventh Amendment, Eighth Amendment, Eleventh Amendment, Fourteenth Amendment, Fifteenth Amendment, Nineteenth Amendment, Twenty-First Amendment, Twenty-Third Amendment, Twenty-Fourth Amendment, Twenty-Sixth Amendment, Taxes, Abortion, National ID, Voter ID, Card Check, Legalization of Drugs, Gay Rights, Hate Crime Legislation, Growth of Government, Property Rights, Sovereign Rights, Ninth Amendment, and Tenth Amendment. I devoted one post to each of these topics. Some were pretty short, and others were quite long and involved.

Next, I assigned letter grades to each of the two for each item, and at the end produced a weighted final grade. Weightings were necessary, because some of these civil liberties are obviously more important than others. You may be 110% behind gay marriage, but I doubt that even you think that gay marriage is more important then freedom of speech. If you do, you have my sympathies. But I’ll produce a spreadsheet at the end with all my calculations, and you can change the grades and the weightings if you disagree with any of my analysis.

Enough preamble. Let’s get down to it. How do our current Presidential candidates stack up regarding the First Amendment? Like last time, I’ll be looking at information from the First Amendment Center.

Let's quote the First Amendment as a refresher, before we start:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

We’ll start with President Barack Obama (D-USA):

The First Amendment Center is rather kind to Obama, in my opinion.

In its fourth year in office, the Obama administration has a mixed record on issues involving the First Amendment.


Previously confidential files and rules have since been released for public scrutiny. In 2009, the Justice Department made public the Bush administration 8/1/02 Interrogation Opinion, commonly known as the “torture memos.”


Still, critics have assailed the administration for not living up to its lofty standards, citing the Justice Department’s refusal to release information concerning domestic wiretapping and surveillance of tourists and U.S. citizens. The department justified the refusal on privacy and national security grounds, according to spokeswoman Tracy Schmaler.

Open-government activists also point to the president’s handling of the Gulf oil spill as an example of unnecessary secrecy. Despite an official government report in 2010 saying the disaster was worse than anticipated, the Obama administration initially presented an overly optimistic portrayal of the cleanup’s success.


News outlets, including the Associated Press, have criticized the speed with which the administration has met FOIA requests. In 2011, the administration received 544,360 requests but left more than 12,000 of them unmet. Of the cases reviewed, the government denied requests in more than a third of the cases. The administration maintains that it has released more information than past administrations.


However, relations between the president and religious groups have not always been harmonious. Catholic leaders recently lambasted the administration’s health-insurance mandates requiring religiously affiliated organizations to provide free contraceptive insurance coverage for female employees.


Though not restrictive of the press, the Obama administration has repeatedly criticized news outlets. The most notable flap occurred in 2009 when White House Communications Director Anita Dunn called the Fox cable network “a wing of the Republican Party.” The president has also sharply criticized news outlets for seeking to gain greater viewership by incorrectly portraying the Washington political scene as combative.


Reporters have criticized the administration for filing charges against government whistleblowers under the Espionage Act. Invoked six times, the act has drawn criticism for appearing to be a mechanism to hide government misuse of funds.

In 2010, the administration pressed charges against Thomas Drake, a former senior executive at the National Security Agency, for publicly voicing concerns that the government spent an unnecessary amount of money on software when it could have used a cheaper and more effective program.


In 2010, the president stood as one of the harshest critics of the Supreme Court’s decision in Citizens United v. Federal Election Commission. In the controversial case, the Court upheld the First Amendment rights of labor unions and corporations to fund campaign ads.

Allow me to sum up. The President has been good about disseminating previously “secret” information to the public, when it has furthered his agenda. He has waged war against the Catholic Church, and news organizations that have been critical of the administration, particularly Fox News. He has not pursued implementation of the Fairness Doctrine, which has surprised me. He does support hate crime legislation, which is in direct opposition to freedom of speech.

Finally, there have been numerous reports this year that the Obama administration is keeping an “enemies list” a la former President Richard Nixon (R-USA).

Try this thought experiment: You decide to donate money to Mitt Romney. You want change in the Oval Office, so you engage in your democratic right to send a check.

Several days later, President Barack Obama, the most powerful man on the planet, singles you out by name. His campaign brands you a Romney donor, shames you for "betting against America," and accuses you of having a "less-than-reputable" record. The message from the man who controls the Justice Department (which can indict you), the SEC (which can fine you), and the IRS (which can audit you), is clear: You made a mistake donating that money.

The WSJ may be engaging in a little bit of fear mongering here, but there’s no doubt that this is worrisome behavior from the White House. Still, it’s not like Obama is exposing secrets. All of the donor information is public record, and there’s nothing keeping Daily Kos or Huffington Post or whoever, from doing exactly what Obama has done. It’s just a little different, and a little scarier, when it comes directly from the head of the government.

That’s Obama. Now, let’s look at former Governor Mitt Romney (R-MA):

As Massachusetts governor from 2002 to 2006, Romney proposed legislation that would have exempted religious organizations from having to provide adoption services to same-sex couples.


In 2005, Romney abandoned plans to exempt Catholic-run hospitals from a state law that requires all hospitals to make the morning-after pill available to “each female rape victim.” Announcing his decision, he said, “I think, in my personal view, it’s the right thing for hospitals to provide information and access to emergency contraception to anyone who is a victim of rape.”


He did not support a bill to create 35-foot protest-free buffer zones around abortion clinics in his state. Within a year of Romney’s leaving office, his successor, Deval Patrick, signed the legislation.

In the area of campaign finance, Romney vetoed a 2006 bill that would have repealed a ban on printing, publishing or distributing any poster or circular “designed to aid or defeat any candidate for nomination or election to any public office” without identifying individuals who issued or were otherwise responsible for the publication.

Records from Romney’s service as governor became a source of controversy in the 2012 campaign when a Boston Globe article suggested that Romney’s administration tried to purge all e-mail records after his term. According to the report, members of the administration took computers with them and replaced e-mail servers. However, the Associated Press later reported, Massachusetts public-records law doesn’t apply to the governor’s office, so there appears to be nothing illegal in the computer removal. Romney said the messages were deleted because they may have contained confidential information. However, on Dec. 6, 2011, Massachusetts announced that previously closed records from the state’s archives would be made publicly available.

More on his time as head of the 2002 Winter Olympics in Salt Lake City:

At the time, Romney said he supported the designated free-speech zones to promote safety and ease traffic flow. Although the decisions regarding outside protesters fell on city officials, it was later reported that the Olympic committee asked the city to remove two protest zones — which were only large enough to hold 10 people each — located inside the Olympic square. An Olympic committee spokesperson denied that the group made the request.

In addition to the free-speech zones, Romney took a stance on public standards when he set a firm policy on what types of music to play during certain events. For instance, he prohibited music popular among snowboarders from the snowboarding competition because he deemed it too profane.

And as candidate Romney:

In the 2008 and 2012 campaigns, Romney has taken a few stances that directly involve First Amendment principles.

The strongest of these is his position against the McCain-Feingold campaign-finance law: He advocates its repeal.


In 2007, Romney said, “the American people should be free to advocate for their candidates and their positions without burdensome limitations.” Instead, he said he supports reforms “that promote transparency and disclosure, preserve grassroots activism and protect the ability to criticize or endorse current officeholders and candidates.” He calls McCain-Feingold “burdensome” and “riddled with shortcomings.”


On the 2012 campaign trail, Romney has continued to oppose campaign-finance regulations, supporting the ability of candidates to collect unlimited donations instead of allowing campaigns to be indirectly supported by money from super PACs. “Let campaigns then take responsibility for their own words,” Romney said in the Jan. 16, 2012, debate in South Carolina.


In remarks in April 2008, Romney described the goals of the Ocean’s Initiatives: “I’d like to see us clean up the water in which our kids are swimming. I’d like to keep pornography from coming up on their computers. I’d like to keep drugs off the streets. I’d like to see less violence and sex on TV and in video games and in movies. And if we get serious about this, we can actually do a great deal to clean up the water in which our kids and our grandkids are swimming.”


In the 2012 campaign, Romney has continued to speak in favor of religious freedom. After the Supreme Court unanimously ruled against a Michigan teacher’s challenge to her firing from a Lutheran Church-sponsored school in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, Romney voiced his support of the decision to the audience at a Faith and Freedom Coalition event in Myrtle Beach, S.C., saying, “We are very fortunate to have people who are willing to stand up for religious tolerance and religious liberty and the First Amendment of this Constitution in this country.”

Romney has expressed concern about the Obama administration’s treatment of religious liberty, criticizing the Department of Health and Human Service’s decision to require schools and hospitals, including those that are run by the Catholic Church and other faith groups, to cover contraception under their employee insurance plans.

I have to be honest here. Some of the information above surprised me. I’ve done this a few times now, and I generally keep tabs on First Amendment issues. So, I tend to know where major politicians stand regarding the First Amendment. Mitt Romney may be the most friendly major politician to the First Amendment that I’ve ever seen.

Yes, he did require Catholic hospitals to offer the morning-after pill, and he enforced free speech zones at the Olympics, as well as banning some music that he considered profane. Of the three, only the first is all that big of a deal. As the person in charge of the Olympics, his responsibility was to make sure that it went smoothly and was enjoyable to the spectators there as well as at home. His responsibility was not to make sure that people would be able to scream obscenities on national TV. Even with the first, he essentially is saying that religious hospitals can not refuse to provide emergency services based upon their faith.

I’m Catholic, and I’m opposed to the morning after pill and abortions. But from a practical standpoint, I understand his logic here. Still, it does impinge on the freedom of religion, and he’ll be docked a bit for it.

Those of you who read this series in 2008 will recall that I was extremely critical of Mr. Obama on this issue, eventually giving him an ‘F’ letter grade. I have since modified my stance, a little. While it’s clear to me that he’s been no friend of the First Amendment, he hasn’t quite turned out to be the enemy that I feared. Still, he did tell his supporters to “get in their faces” regarding Tea Parties and there is that enemies list.

Still, I’m going to raise his grade from last time, but I will be willing to reconsider, should his campaign start attacking free speech again.

Whew. That’s a lot. what about the grades?

Obama: D (subject to further review)

Romney: B (while he’s terrific compared to his peers, it’s hard to get an ‘A’ on this one)

First Amendment: Advantage Romney.

Results so far:

  Obama Romney
First Amendment D B

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