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:
Posts
