The Barack Obama - King George Connection

Barrack Obama seems poised, based on his associates and his appointments to date, to reinstate the Fairness Doctrine for American radio programming, If he does that administratively through his naming of a new Chairman of the Federal Communications Commission, he’ll be taking a page out of King George III’s book of policies toward the American colonists.

Isn’t that a bit of a stretch since the number of radio stations in 1776 was shockingly low, and King George did not have a Royal Communications Commission? Well, actually he did, and thereon hangs a tale.

The slogan, “No taxation without representation,” spread when The Stamp Act was passed in 1765. It was repealed a year later, however. British taxes on the American colonies were at their highest in 1769 under The Townsend Act. Those taxes amounted to 6 cents a year on those families using money rather than subsistence and barter. That tax burden was one-third of one percent of the average family’s income. (High taxes were NOT the reason for the American Revolution. But that’s a story for another day,)

The Stamp Act had an additional purpose unrelated to tax revenues. Under the Act, all major documents from court pleadings and deeds to private wills and newspapers, had to be on paper bearing the royal stamp. It was a crime to produce any such document except on stamped paper.

The Royal Governors of the various colonies decided which Americans would be allowed to purchase this essential paper. Private citizens who owned presses and published newspapers were dependent on the royal governors in two ways. First, a goodly part of their income came from publishing government documents and announcements. Second, if they became disfavored by the Governor, they would receive no stamped paper, and would be out of business.

It is true that each colony had a popularly-elected legislature. However, each Royal Governor had an absolute veto; it could not be overridden, So the local laws reflected the will of the Governors, not the people.

The King and Parliament in England and the Royal Governors in the colonies all recognized the dangers of printers publishing whatever they wanted in their newspapers. Only about one third of all colonists could read, and newspapers consisted mostly of broadsheets, two pages front and back. Still, newspapers had a wide impact. Newspapers were passed from hand to hand, and read aloud in taverns and other public places.

The first attempt to control the press in the American colonies consisted of a law forbidding any ownership of a printing press without approval of the Crown. That failed, because presses could be moved and hidden. The Stamp Act had the potential to be more effective because newspapers had to be circulated in public. It was readily apparent whether they were printed on stamped paper. But widespread resistence and some acts of vandalism by the Sons of Liberty caused Britain to repeal the Act.

Consider the reason why we refer to television, radio, and in some circumstances today the Internet, as the “press” and the comparison with President-Elect Obama’s intended policies becomes clear. When freedom of the press was borrowed from the Massachusetts Constitution and incorporated in the third proposed amendment to the US Constitution, the only form of mass communication was broadsheets (which could be bound into books) from hand-crank letter presses, printed one at a time.

It is clear from their writings that the Framers intended to protect the freedom of ALL public communications, particularly on public issues and especially when critical of the government. In America today, most public communications, by volume and impact, have nothing to do with ink on paper. The electronic media are increasingly the venue where public debate takes place, and where criticism of the government will take place – if possible.

Under the Fairness Doctrine, which the Obama Administration may seek to reestablish, the government would tell talk radio how far they can go – what they can, and cannot, broadcast. It will be the electronic version of the Stamp Act by which King George sought to control the most free-wheeling part of American communications of his day.

That effort by the Obama Administration should fail. Today we have a First Amendment: “Congress shall make no law... abridging the freedom... of the press...” And today, for the time being, we have at least five Justices of the Supreme Court who take that Amendment seriously.

John Armor has practiced First Amendment law in the Supreme Court over three decades. He lives in the Blue Ridge of North Carolina. He is counsel to the American Civil Rights Union, www.theacru.org

Thanks for the ping, which I somehow seem to have missed originally :(

John: Since the Republican Party is seeking a rehearing of the issues of McConnell v. FEC, I'm inspired to question whether it might not be feasible to submit an amicus brief to the Court in support of a capacious First Amendment ruling which would overturn McConnell and simultaneously put Obama's censorship agenda on the back foot.

It is clear from their writings that the Framers intended to protect the freedom of ALL public communications, particularly on public issues and especially when critical of the government. In America today, most public communications, by volume and impact, have nothing to do with ink on paper. The electronic media are increasingly the venue where public debate takes place, and where criticism of the government will take place – if possible.
IMHO in the best case, SCOTUS would make the applicability of the First Amendment to modern communications unambiguous:

"Freedom of the press" is not limited to the technology of printing circa 1792. It includes the high speed printing press developed since the 1830s - and it includes telegraphy, telephony, movies, radio, Xerography and television developed much later. And it includes the PC printer and the Internet today, and whatever communication technology may extend those capabilities in as yet unexplored ways in the future. If anyone can use the Internet and put up web sites, everyone (who can afford it) can put up web sites.
"Freedom of the press" is a right of the people, and each of us individually. Under the Constitution the government does not get to elevate some people to privileged status officially recognized as "objective" or any other title of nobility.
Anyone can claim to be objective, but no one may be obliged to defer to any such claim. People who make such claim do not - no matter what the weight of their purses, what printing presses or other communications equipment they may own, or even how many others similarly situated who may be in concert with them in making such claim - attain even to the credibility of witnesses under oath. Let alone to that of the verdict of a jury. They are still only people with no authority over their fellow citizens, and they constitute no part of the government.

Such a finding by SCotUS would be eminently justifiable, and a much easier sell than, for example, the majority opinion in the Heller case. And it would put paid to any pretense that political censorship is permitted to the government under the Constitution.
Could FR submit an amicus brief to that effect, as a practical matter?

SCOTUS should hold that:

In providing for the patenting of inventions, and more generally in providing that the people are to be free to do things differently than in prior generations, the Constitution plainly contemplates technological advancement. Furthermore, the position of the framers of the Constitution before it was amended was that the rights which could be delineated in the Bill of Rights insisted upon by the Antifederalists were already implied in the original, and that a listing of rights could not easily be constructed which could never be construed as reducing the rights recognized by the Constitution.
It would, therefore, be fatuous to take the words "the press" in the First Amendment in a reactionary, technologically static, sense. The printing press as it was known in the Founding Era was hopelessly crude and inflexible by modern standards - but there can of course be no implication that only the use of printing presses of archaic design is protected by the Constitution.
"Freedom of the press" cannot refer to specifically to the use of the technology of printing circa 1792. It certainly includes the use of high speed printing presses developed since the 1830s - and of telegraphy as well. And also the use of photography, telephony, movies, radio, Xerography, and television developed much later. And it not only includes the use of the computer printer and the Internet today, in principle it includes the use of whatever communication technology may extend those capabilities in as yet novel ways in the future. "Freedom of the press" is a right of the people, and each of us individually - the right to spend our own money to use technology to promote our own opinions about what we ourselves consider to be important. Most especially, in light of the establishment and free exercise clauses and of the assembly and petition clauses of the First Amendment, freedom of the press is the right of any person to spend money to use technology to promote his/her opinions on religion or politics in particular.
The principle is that if anyone has the right to spend money to employ a particular communication technology, everyone (who can afford it, as in combination with other like-minded people most would have some ability to afford some use of most such technologies) has the right to spend money to employ that technology. Under the Constitution the government does not get to elevate some people to privileged status officially recognized as "objective" or any other title of nobility. Anyone has the right to thus exert themselves to make it easy for his fellows to see, hear, and/or read his opinions - but whoever does so must interest and persuade his target audience, who have no obligation to give his exertions the slightest notice.
Anyone can, like the Sophists of old, claim superior wisdom - or objectivity, or any other virtue. But whoever does so - no matter what the weight of their purses, what printing presses, telegraph lines, or other communications equipment they may own or control, or even how many others similarly situated who may be in concert with them in making such claim - cannot thereby attain any authority over the opinions of their fellows. They not only do not attain the authority of the verdict of a jury, they do not (precisely because of their freedom) even attain the credibility of witnesses under oath and subject to the laws of perjury. They are still only people, and they do not on that account constitute any part of the government.
We the people are free to use the press in all its forms, and free from efforts by the government to prevent the success of our efforts to do so.

John Adams wrote

All Ranks and orders of our People, are intelligent, are accomplished-- a Native of America, especially of New England, who cannot read and wright is as rare a Phenomenon as a Comet.

April Shenandoah offers some statistics on early American literacy.

At the time of the Revolution, the literacy level was virtually 100% (even on the frontier it was greater than 70%).

Fairness doctrinaires ought to carefully note results gleaned from a recent poll.

According to a new poll by Zogby and the Independent Film Channel the internet is now more trusted than TV and print news combined. Wired News and LGF reported:

The web is the most trusted news medium (over TV and print combined), and Fox News is the most trusted TV news source, according to results from a new Zogby poll commissioned by the Independent Film Channel (pdf).

Fox ruled with 39.3 percent of those polled beating out CNN at 16 percent and MSNBC at 15 percent.

These results are good fodder for Fox in defending its claims of being "Fair and Balanced" -- it's also interesting to note that more people in the poll described themselves as Democrats than Republicans -- but the majority of Americans seem to also have little faith in the media at all.

The online survey of 3,472 adults two days after the election found that three out of four people think that the media influenced the outcome, and about the same number also think that the media in general is biased.

In the other categories, The New York Times was the most trusted newspaper and Rush Limbaugh (12.5 percent) came out on top among news personalities closely followed by Fox’s Bill O’Reilly (10.1 percent).

Fairness doctrinaires ought to carefully note results gleaned from a recent poll.

Perfectly true, I make no doubt - but, IMHO, beside the point so far as how SCOTUS should rule. As I noted in #23, SCOTUS treatment of claims of objectivity should be dismissive:
Anyone can, like the Sophists of old, claim superior wisdom - or objectivity, or any other virtue. But whoever does so - no matter what the weight of their purses, what printing presses, telegraph lines, or other communications equipment they may own or control, or even how many others similarly situated who may be in concert with them in making such claim - cannot thereby attain any authority over the opinions of their fellows. They not only do not attain the authority of the verdict of a jury, they do not (precisely because of their freedom) even attain the credibility of witnesses under oath and subject to the laws of perjury. They are still only people, and they do not on that account constitute any part of the government.
Decline to accept claims of objectivity, IOW, and you are on sound constitutional ground without placing any reliance on data subject to challenge. If however SCOTUS, or some subset of it, wishes to interest itself - unnecessarily, as I argue - with the merits of the claims of Big Journalism, there is an embarrassment of sources and anecdotes to choose from. As if that could ever satisfy Big Journalism's sycophants; we well know from experience that it could never do so. I would merely note the existence of that body of information and then go to what I consider to be the jugular. And that is the fact that journalism itself is easily shown not to function so much as multiple independent operations as fronts for a monopolistic organization - the Associated Press - which was found by SCOTUS in 1945 to be in violation of the Sherman Antitrust Act.
Associated Press journalism has easily identifiable interests which are openly expressed in such bywords of journalism as, "If it bleeds, it leads," "Man Bites Dog, not Dog Bites Man," "There's nothing more worthless than yesterday's newspaper," and the ever-looming deadline. Journalism affects to be "The Press," and affects to operate in the public interest - but in fact it clearly operates in its own interest. "Objectivity" is a hollow boast. But the crucial point to me is that SCOTUS need not find that journalism is or is not objective; such claims properly are entirely irrelevant to the issue. The nut of the issue is the fact that the government doesn't have the authority to declare Big Journalism, or anyone else, to be objective. Even if that premise were true. Which I consider fortunate, since IMHO the claimed absence of bias in journalism is at best an unprovable negative, the claims of which should be dismissed out of hand.
Along with "Campaign Finance Reform," any thought of a revival of the "Fairness Doctrine," and abridgment of the right of the people to FReep.

Article I, Section 9 (h) states that

No title of nobility shall be granted by the United States . . .
There is of course such a thing as "free association" as a right of the people; you can associate with who you want to and do not have to listen to or mingle with those you do not choose to. And some associations are famous for the grandiose titles they assign to their leaders. "Grand" is the sort of adjective to be expected among such titles. And such organizations certainly may have idiosyncratic names for ordinary members as well. A mundane example would the use of the term "associates" for the employees of Walmart.
The Associated Press is an exercise of the right of free association by certain of the people. And "the press" is a title which the people in that association call all its members. But not the only one. Another title which members confer on each other is, "objective journalist." And, IMHO, those titles which members of the Associated Press assign to each other and themselves deserve precisely the same status before the law as a title like "Grand Dragon" would merit in any other association. The courts would not assume that a "Grand Dragon" actually is either "grand" or a dragon. No more so should they assume that people who calls themselves "the press" are actually pieces of machinery for printing text and images on paper.
Nor should the courts assume that people who call themselves "objective" have any inherent superiority over those who do not. In point of fact, assigning a virtue to yourself is often associated with the vice of arrogance.

Interesting history lesson.

From all the many lawsuits filed with Jumbo Mumbo legal "language", I feel this is the most compelling and logical to push forward:

A more important lawsuit, however, may be the New Jersey case filed by Leo C. Donofrio. See http://www.blogtext.org/naturalborncitizen/ Donofrio is presently seeking emergency stay relief in the US Supreme Court, and what's intriguing about his action is a new legal theory not asserted (as yet) in any of the earlier cases. Donofrio argues that the "birth certificate" and "Indonesia" issues are irrelevant to Obama's eligibility to serve as President. Donofrio points out that Obama spokesmen have admitted (at least on websites) that his father was a Kenyan native at the time of Obama's birth, and was thereby a British subject (Kenya, at the time, was a British colony). Obama spokesmen acknowledge (on websites) that British law governed the status of Obama Sr.'s children, but the spokesmen also assert that Obama held dual Kenya/US citizenship at birth, and his Kenyan citizenship expired on August 4, 1981. The Obama assertion is that he was in fact born in Hawaii, and that he has never renounced the US citizenship status that arises as a result of his Hawaiian birth.

Donofrio argues that these facts admitted by Obama spokesmen establish WITHOUT MORE that Obama is not eligible for the presidency. Donofrio looks to the full clause in Article 2. Section 1. of the Constitution, which provides:

"No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States."

Donofrio asserts that the words ". . . or a Citizen of the United States, at the time of the Adoption of this Constitution . . ." have been overlooked in earlier lawsuits about Obama's eligibility, and that these words provide the key to a proper understanding of the eligibility issue. The Donofrio argument goes to original intent of the framers as expressed through these words-- he points out that most, if not all, of the framers of the Constitution were, at birth, born as British subjects. So the Donofrio "original intent" argument goes like this:

The chosen wording of the framers makes clear that they had drawn a distinction between themselves-- persons born subject to British jurisdiction-- and "natural born citizens" who would NOT be born subject to British jurisdiction or any other jurisdiction other than the United States. The framers grandfathered themselves into the Constitution as being eligible to be President, but the grandfather clause ONLY applies to any person who was a "Citizen . . . at the time of the Adoption of this Constitution." Obama (obviously) was not a Citizen at the time of the Adoption of the Constitution, so he is not subject to the grandfather clause.

Here's where the Donofrio argument becomes quite interesting. The framers recognized that EVEN THEY were not "natural born citizens." That's why they included a grandfather clause to allow any of them to become President. The framers did not want citizens with divided loyalty to become President in the future-- particularly citizens with loyalty to the hated British Empire. Donofrio argues that the word "born" constitutes proof positive that the framers intended that status as a "citizen" must be present at birth, since if this was not the intent there would have been no need for the grandfather clause. Dual citizenship at time of birth (British/US) was allowed for the framers themselves under the grandfather clause, but for no one else. Hence, argues Donofrio, Obama is not a natural born citizen, and even if he produces an original birth certificate proving he was born in Hawaii it will not change the fact that he was a British citizen at birth.

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