Monday, September 23, 2013

Constitution Week 2013

Today is the last day of Constitution Week, a week that commenced with the celebration of Constitution Day on September 17th.

I often try to take note of this celebration because, in my view, it is important for us, as citizens, to remind ourselves of our shared constitutional commitment.

I confess I was especially moved to write this year when I read the story about the Modesto Community College student in California who was prevented by campus administrators and the police from passing out copies of the Constitution on Constitution Day. He was told he could only distribute the Constitution in the school's tiny "free speech" zone and, then, only if the activity was scheduled several days in advance.

I understand that this is but one small example of many that could be cited that would make our Founders' heads shake in wonderment if they but knew. It is not news that campus speech codes and other forms of speech restrictions brought about by rigid adherence to political correctness fashions run right up against First Amendment free speech guarantees. But prohibiting a student from passing out copies of the Constitution on Constitution Day should make us stop and think.

Indeed, it calls to my mind the story, perhaps apocryphal, about Ben Franklin's remark when he was asked on the final day of the Constitutional Convention of 1787: "Well, Doctor, what have we got – a Republic or a Monarchy?" Franklin's response: "A Republic if you can keep it."

I do not doubt that we can keep it – as long as we, continually, strive to understand and remain true to an understanding of the Constitution that comports, as nearly as possible, to its original meaning and foundational principles, including the structural restraints imposed on government by the Constitution's separation of powers and the doctrine of limited, enumerated powers. And, of course, the explicit liberty guarantees in the Bill of Rights are crucial to securing our fundamental freedoms.

At the Free State Foundation, it is our goal, even amidst engaging in the sometimes nitty-gritty of today's debates about this policy or that, always to have in mind foundational constitutional principles. This is especially important for an organization that labors so heavily in fields cultivated – I should say "controlled" – by the Federal Communications Commission. This is because so much of what the FCC does in regulating communications and media companies, and now Internet providers, implicates constitutional rights.

Of course, the First Amendment's free speech guarantee comes readily to mind foremost. Our website is chock-full of papers, far too numerous even to begin to list here, that explain how various FCC actions implicate, if not violate, the free speech rights of companies – speakers, really – subject to various FCC regulatory mandates. Without delving into the substantive arguments here, I want only to suggest, in the spirit of Constitution Week, that the FCC commissioners would do well – consistent with their constitutional oaths – to consider anew whether certain existing regulations comport with the First Amendment's free speech guarantee. This can be done on a forward-looking basis without necessarily questioning whatever justifications may have been assumed to exist when the regulations were adopted.

For example, as D.C. Circuit Judge Brett Kavanaugh suggested in his concurring opinion in the Tennis Channel case decided last May, in today's competitive video marketplace, the FCC's program carriage requirements, adopted two decades ago in a then monopolistic environment, now likely are inconsistent with cable operators' First Amendment rights. I have suggested the same for many years, so I concur in Judge Kavanaugh's concurrence.

As another example, I have long contended, as I explained in this 2007 law review article, "Net Neutrality Mandates: Neutering the First Amendment in the Digital Age," that FCC regulations requiring Internet providers to carry content that they may wish not to carry violates the free speech rights of the Internet providers. In the Verizon v. FCC case now before the D.C. Circuit challenging the lawfulness of the FCC's net neutrality mandates, the Free State Foundation joined TechFreedom, the Cato Institute, and the Competitive Enterprise Institute in a brief arguing that the agency's net neutrality regulations violate the Internet providers' First Amendment rights.

To my mind, there is a fundamental problem with the FCC's approach in these and other cases in which the agency implements various access mandates and/or nondiscrimination prohibitions. The Commission, in effect, turns the First Amendment on its head. Simply put, the First Amendment is intended to prevent the government from interfering with the free speech of private individuals or entities; it is not intended to authorize the government to take measures that, however well-intentioned, are designed to equalize speech or enable more speech by one party or another.

As Chief Justice Roberts put the matter in the 2011 Arizona Free Enterprise Club case, citing the landmark Tornillo decision invalidating Florida's "right to reply" access statute, "this sort of 'beggar thy neighbor approach' to free speech – 'restrict[ing] the speech of some elements of our society in order to enhance the relative voice of others' – is 'wholly foreign to the First Amendment.'"

There is a fundamental difference between the ""beggar thy neighbor" understanding of the First Amendment too often adopted by the FCC which regulates speech in the name of equalizing access or preventing discrimination and a proper understanding which holds the First Amendment is a guarantee against government interference with private speech.

At the Free State Foundation, with due respect for the perspectives held in good faith by others, we will continue to advocate for what we consider to be a proper understanding of the First Amendment. And we will do the same, of course, with respect to other constitutional guarantees, such as the Fifth Amendment's due process and "takings" clauses which protect private property.

Finally, in closing, I want to take the opportunity afforded by Constitution Week to call your attention to the series of four "Perspectives from FSF Scholars" papers, authored by Seth Cooper and me, which explore foundational principles of intellectual property grounded in our constitutional system. The discussion in these papers ranges broadly from the natural rights, Lockean origin of intellectual property protection, to the significance of James Madison's little known "On Property" essay, to the even less well-known collaborative efforts of Madison and Noah Webster to secure IP rights in the federal Constitution and early state constitutions, and on to an explanation as to why the Founders' anti-monopoly and pro-IP rights protection views are not inconsistent.

If you are looking for some "extra credit" reading as Constitution Week draws to a close, you might want to sample these Perspectives: