Obama asks Supreme Court for new standard that could limit free speech

Media could be robbed of their First Amendment rights if the Supreme Court agrees with Obama's novel new legal arguments in the Hobby Lobby case. Photo: Multiple Media Logos

WASHINGTON, December 4, 2013 — How far will President Obama go to control what we see and hear? How about removing First Amendment protections from FOX News or even from MSNBC, ABC, CNN, CBS or NBC. Maybe no free speech or freedom of the press for The Washington Times nor The Washington Post nor The New York Times or any other major media? Obama would justify it by claiming they are all tainted because they seek to profit from the news business.

Don’t laugh. This is the danger from the ground-breaking legal theory being argued by the Obama Administration to the Supreme Court. The threat is carefully-camouflaged within the legal briefs filed to defend Obamacare in the Hobby Lobby case. At the core of its argument that Hobby Lobby must provide abortion-inducing “birth control” to its employees, the government claims that for-profit corporations have no First Amendment rights. Only individuals do. Plus non-profits.

So Brian Williams would retain all his constitutional rights and so would George Stephanapolous, Rachel Maddow, Matt Lauer, Diane Sawyer, Chris Matthews, Ed Schultz, Rush Limbaugh, Sean Hannity, Marc Levin, Bill O’Reilly and the other individuals who deliver news, talk radio and entertainment. But their employers presumably would lose those rights unless they restructured into noble non-profits. Then the small handful of pesky reporters would be no more troublesome than the ones from NPR.

Of course, none of them would have protection from being monitored by the NSA.

To be fair, the Solicitor-General’s pro-Obamacare briefs in Sebelius versus Hobby Lobby do not single-out First Amendment free speech and free press rights; but they don’t exclude them either when they argue that First Amendment freedom of religion rights should be denied to for-profit corporations. Yet since when do any Constitutional rights hinge on whether an entity is a for-profit corporation? It’s a novel argument and a chilling one. If the Supreme Court accepts the idea it would set legal dominoes falling as other rights toppled. Once it’s the basis for limiting one First Amendment right, it becomes a sinkhole where other First Amendment rights disappear.

Our First Amendment rights include free exercise of religion, freedom of speech, freedom of the press, feedom of peaceable assemble, and freedom to petition government for redress of grievances.


SEE RELATED: Hobby Lobby case would thwart Obamacare’s benefits for casual sex


Businesses have good purposes and good reasons to need rights. Making profit is only one of them. People do much of their work and seek to accomplish many of their goals through businesses that often are small or are closely-held. Hobby Lobby is not a small business but it is a closely-held business, a subchapter-S corporation owned by just seven members of the David and Barbara Green family. By disregarding this, and demagoguing purely against the supposed evil of for-profit corporations, Obama’s lawyers are asking the Supreme Court to issue a ruling that would be used to claim that all our First Amendment rights are lost whenever we choose to work through the medium—the tool—of a business structure.

Disparaging the profit motive has been a long-time goal of the American Left; now they want it ratified by a Supreme Court decision. That would demote businesses to the lowest caste in America’s previously-classless society. They would become outcasts. Pariahs.

President Obama has attacked First Amendment rights in several ways, often linking it to a condemnation of those who seek to earn a profit, usually making it sound evil to make money by providing a basic need.

For example, in arguing for health care reform in July 2009, Obama urged that medical professionals and insurance companies should not be trusted. He told ABC News, “A whole lot of people are having bad experiences because recommendations are coming from people who have a profit motive.” That same summer he accused doctors of performing unnecessary surgeries, even amputations, due to greed.

While the Occupy Wall Street movement has fought American businesses, Obama has led an Occupy America movement, railing against political speech by corporations. His infamous 2010 State of the Union remarks condemned the Supreme Court’s ruling in the Citizens United case that protects issue-related advertising by corporations. Corporate ads on behalf of a candidate for office remain illegal, although Obama often fudges over that important distinction.

But while he condemns corporate speech and restricts White House press, Obama freely spends public funds for propaganda, including an estimated $684-million to promote Obamacare, according to Associated Press calculations.

Hobby Lobby sued on principles of religious freedom and the Religious Freedom Restoration Act that requires government to accommodate those principles. Instead of accommodating them, the Obama Administration saw a chance to expand restrictions on religious freedom.

The effort is being coordinated. For example, Congresswoman Gwen Moore (D, WI), last week said, “The First Amendment, we revere it. It protects the rights of religious schools, churches, places of worship. And I think that the sanctity of that is something we all appreciate as Americans. The Hobby Lobby is not one of those institutions.”

So, according to Moore, any type of religious activity at Hobby Lobby has zero First Amendment protection?

Does she know that each year Hobby Lobby purchases hundreds of newspaper ads at Easter and Christmas, inviting people “to know Jesus as Lord and Savior”? They even post a collection of their ads online (link). The official corporate statement of purpose includes “[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.” The company foregoes tens of millions of dollars of annual revenue by closing each of their hundreds of stores every Sunday. They provide chaplains and spiritual counseling to all 13,000 workers. They provide insurance to workers which includes 16 of the 20 contraceptives that Obamacare says they must. But not the four that actually terminate a pregnancy. For that, they face fines that could be $1.3-million each day.

Those details don’t matter to the Left. They are blind except to the dirty words, “for-profit.” But they glorify non-profits, as though non-profit or “non-partisan” means better-intentioned and clearer-thinking. In truth, neither for-profit nor non-profit is automatically good or bad.

The Left poses the issue like this: Religious liberty is for people, not corporations. Elizabeth Wydra of the Constitutional Accountability Project writes, “a business corporation lacks the basic human capacities — reason, dignity and conscience — at the core of the right to free exercise of religion,” adding, “Have you ever seen Exxon Mobil in the pew next to you at church?” Of course, those identical points could be raised about non-profits as well. Posing arguments in her way misses the point.

Here is a better analysis: Corporations are legitimate and convenient tools that individuals use to accomplish their purposes. We don’t restrict religious use of other tools on the grounds that they lack a conscience. To accomplish our religious purposes, we can use a car rather than walk, or use radio and television rather than speaking only person-to-person. Rather than asking whether a corporation is for-profit, a better test is whether it’s a legitimate tool or instrument. For a family of seven devout Christians, their closely-held subchapter-S corporation, Hobby Lobby, can be used by them the same as their other personal assets, consistently with their religious faith. For companies in similar circumstance, or which are instrumentalities of churches and religious orders, Obamacare exemptions should apply. Multiple courts have agreed and so should the Supreme Court.

On the other hand, CBS, with thousands of shareholders, would have a more difficult challenge in claiming a religious exemption because they would be hard-put to demonstrate religious purpose and activitty. But they should have no difficulty with their claim to other Constitutional protections, once the Obama “for-profit corporation” test is rejected.

It’s frightening to grasp the audacity of the government briefs in the Hobby Lobby case, and the boldness of the new limits on Constitutional freedoms which they could sneak in if the Supreme Court approved “for-profit” as a new boundary line for rights.

The government brief also repeats a common nonsense argument that is heard so often that people rarely think it through. The claim is that an employer, by not providing contraceptives, is “imposing their religious views on their employees.” No. The employer is refusing to let the government impose its view upon the employer. If somebody compels you to perform an action, they are imposing upon you. When you refrain from taking an action, you are not imposing on anybody.

We have had too much imposed on us already from the first Supreme Court decision on Obamacare. Fortunately, even after the Hobby Lobby case, more challenges to Obamacare are in the legal pipeline. An important action by the State of Oklahoma. And multiple lawsuits by Catholic-affiliated institutions. It’s just too bad that the White House gets a bottomless pit of taxpayer money to fight against them. And uses the money to ask for outrageous new restrictions on our rights.

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Ernest Istook

Ernest Istook spent 25 years in public office, including 14 years in Congress. He was rated one of the top 25 conservatives in the U.S. House of Representatives. Then was a Heritage Foundation fellow and a fellow at Harvard's Insitute of Politics, where he led a study group on Propaganda in American Politics Today. 

Now as a radio host and a commentator, Ernest aims to expose Washington's gimmicks--to help you avoid the pitfalls. He brings clarity out of the confusion. 

Native to Texas, Ernest transplanted to Oklahoma after graduating from Baylor University.

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