Obama’s AG choice: Regulate Internet communication

posted at 10:34 am on November 21, 2008 by Ed Morrissey

Danny Glover at Eyeblast reveals a nine-year-old NPR interview with Eric Holder regarding how the government needs to regulate Internet communications.  The rumored front-runner for Attorney General told NPR that the Columbine killers may have found some of their venom through Internet access, as well as a bomb recipe or two. If the government can regulate pornography, Holder insisted while serving as Deputy AG during the Clinton administration, surely the government can restrict speech in general:

My friend Kerry Picket has the transcript at Newsbusters:

The court has really struck down every government effort to try to regulate it. We tried with regard to pornography. It is gonna be a difficult thing, but it seems to me that if we can come up with reasonable restrictions, reasonable regulations in how people interact on the Internet, that is something that the Supreme Court and the courts ought to favorably look at. – May 28, 1999 NPR Morning Edition

Pardon me, but I’m looking at the First Amendment (in my official Robert Byrd Pocket Constitution, natch), and I’m a bit confused. Where in this statement does it say that the government has the authority to impose “reasonable restrictions” on speech?

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.

Congress shall make no law … abridging the freedom of speech.  That appears rather clear.  It doesn’t authorize “reasonable restrictions”, or “reasonable regulations”, or what Holder really wants, “reasonable federal censorship”.

We apparently will have an incoming administration blissfully ignorant of the Constitution they will swear to defend.  Barack Obama couldn’t articulate a coherent statement on gun rights despite his supposed status as a Constitutional scholar, Joe Biden couldn’t figure out what Article I actually establishes, and now Eric Holder hasn’t read the First Amendment.  Maybe we should pass out more of those Robert Byrd Pocket Constitutions during the transition, and hold a test before Inauguration Day.

Anyone want to guess what form those “reasonable restrictions” might be?  Perhaps, say, regulating content in the blogosphere?  I’m guessing that will be Target One for the Holder-run DoJ.


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Wow, so we have this post on the first amendment in an Obama administration, an earlier post on Obama’s issue with gun ownership and the 2nd amendment. I wonder what other issues Obama has with our constitution? It’s gonna be a long four years.

vcferlita on November 21, 2008 at 12:32 PM

Trust me, people are beginning to laugh at how desperate your posts are

Really, who?

And I didn’t say any of the cases were based on the first amendment. I simply stated that there are already reasonable restrictions on free speech in this country, as if proven by Brandenburg. Am I wrong in there? Is the fact that the government can prosecute someone for inciting violence through words no a restriction on free speech?

Tom_Shipley on November 21, 2008 at 12:35 PM

Trust me, people are beginning to laugh at how desperate your posts are…especially people with an just an inkling of law.
Quit while you are behind…

right2bright on November 21, 2008 at 12:28 PM

Just the fact that he continues to reference Wikipedia even after having the entire issue explained by someone with obviously superior knowledge in that particular area of law boggles the mind. Wiki is such a credible resource that my children are not even allowed to use it as a reference in their school work and this tool thinks that Wiki trumps all. What can you say in the face of such determined ignorance?

inmypajamas on November 21, 2008 at 12:37 PM

Southernbelle07 on November 21, 2008 at 12:27 PM

Yes you are correct, and have a discerning opinion. (it was actually a KKK issue).
But the cases cited in the B v O is so broad, and later cases, can’t remember which one, was the protester where they ref. the Ohio case.
I think the issues was so broad that the internet is covered. Internet is basically print, with electronic speed, and it there is no filter where it begins or ends.
What it (the case) won’t protect is the “clear and present” part. If they were showing how to make a bomb, okay maybe research or science…but if they were a terrorist cell, then it enters into the clear and present danger.
It could get down to the “I know it when I see it”, but mainly it is what danger to society is real or not real. And there is great latitude in that.

right2bright on November 21, 2008 at 12:38 PM

This is what comes from an Ivy League education.
You give a little they take a lot.
I don’t think people are being paranoid at all about this.
Once you start this ball rolling, can you say Sedition Act?

Badger40 on November 21, 2008 at 12:39 PM

Southernbelle07 on November 21, 2008 at 12:27 PM

As a caveat, what then was born out of this, seeing as they could not contain free speech, was the dreadful “hate” crimes.
They couldn’t allow burning crosses as free speech, so they created “hate crimes” legislation to undermine the free speech…and now that has expanded and is the liberal catch all for any protest against them.
Such is the law, like the dutch boy and the dike (not a sexual reference).

right2bright on November 21, 2008 at 12:43 PM

I can’t see him actually swearing in.
I ordered 100 Pocket Constitutions for $30.
Do it!
Mail them with Christmas cards. *wink

Elektra on November 21, 2008 at 12:43 PM

inciting violence through words no a restriction on free speech?

Tom_Shipley on November 21, 2008 at 12:35 PM

No, not by our (not Wiki) legal definition of free speech.
That’s the point…sheesh
You already had one person state they were laughing at you…keep it up.

right2bright on November 21, 2008 at 12:45 PM

I don’t think people are being paranoid at all about this.
Once you start this ball rolling, can you say Sedition Act?

Badger40 on November 21, 2008 at 12:39 PM

These were the same arguments from the left about Bush…he was going to take away free speech, he was not going to give up the presidency, he was going to impose martial law…
The courts are too conservative to make these sweeping changes without a long drawn out process.
Don’t fall into this trap…Obama will do enough damage without imagining extreme scenarios that are all but impossible to happen.

right2bright on November 21, 2008 at 12:49 PM

You already had one person state they were laughing at you…keep it up.

right2bright on November 21, 2008 at 12:45 PM

I’m not laughing at T_S, I’m laughing with everyone else.

thomasaur on November 21, 2008 at 12:50 PM

I never agreed with the Supreme Court decision that upheld McCain-Feingold. If any kind of speech that should be protected it is political speech.

SC.Charlie on November 21, 2008 at 12:54 PM

I don’t know, personally I don’t see why people would be laughing at me. I think I’m raising some good points here.

And, unlike yesterday, I will grant that rightbright has made some good points and probably knows more about this topic than I do.

BUT, I still don’t see how you can say there’s not already a reasonable restriction on free speech when a person can be arrested for inciting violence through words.

And I think my question about Brandenburg being applied to the Internet is a valid one.

Now, what IS laughable is that thomasaur mocked me for not knowing Oprah wasn’t married to her longtime boyfriend.

Tom_Shipley on November 21, 2008 at 12:56 PM

I never agreed with the Supreme Court decision that upheld McCain-Feingold. If any kind of speech that should be protected it is political speech.

SC.Charlie on November 21, 2008 at 12:54 PM

Of all the things I bit my tongue on with McCain that was it…and it ended up biting him.
The worse, the very worse decision (well eminent domain is close) ever, and the worst bill ever created.
Political speech should be, as you so well stated, never be anything but free, open, and un-fettered.

right2bright on November 21, 2008 at 1:05 PM

What could possibly be funny about seeing some smug libtard douche bag get his ass handed to him???

Indeed!!!

BigWyo on November 21, 2008 at 1:19 PM

If you’re not sure where this is going, then you need to catch up with what happened to Mark Steyn and Ezra Levant up in Canada.

http://www.marksteyn.com/

Coming soon to a theatre near you: “Human Rights Tribunals” where there are

No rights,
No recourse
No points of law, and
THE TRUTH IS NO DEFENSE!

Laura in Maryland on November 21, 2008 at 1:21 PM

ernesto…..
The cost of net neutrality is REGULATION plain and simple. The feds what to create a “peoples net” free of choice and competition. Lets see if the government can make a dent in the cable TV rate insanity before we hand over the net!

dmann on November 21, 2008 at 1:35 PM

What is it with these guys and regulation? What is is about a regulation that just turns them on so? They apparently feel that there is no appeal to being left alone.

drewmesq on November 21, 2008 at 1:43 PM

dmann on November 21, 2008 at 1:35 PM

How can the cost of net neutrality be regulation when i just got done explaining that THE COST OF COMPLIANCE IS NONEXISTANT. There are no networks or ISPs that currently violate the idea of a free, open internet. One that offers equal access per dollar. You’re imagining a cost just for the hell of it. There is no cost. BUT the idea is also behind your statement on cable rates. They have already implimented policy that goes against the regulation. But the internet has not.

ernesto on November 21, 2008 at 1:56 PM

What is it with these guys and regulation? What is is about a regulation that just turns them on so? They apparently feel that there is no appeal to being left alone.

drewmesq on November 21, 2008 at 1:43 PM

Because when you can regulate, you can tax.

right2bright on November 21, 2008 at 1:57 PM

Because when you can regulate, you can tax.

right2bright on November 21, 2008 at 1:57 PM

And with regulation, comes lobbyists, and with lobbyists come money…

right2bright on November 21, 2008 at 1:59 PM

What is it with these guys and regulation? What is is about a regulation that just turns them on so? They apparently feel that there is no appeal to being left alone.

drewmesq on November 21, 2008 at 1:43 PM

It’s all about control. They know what is best for all of us, we are too stooooopid, we need to be regulated and controlled for our own good. That’s what it’s like high atop that liberal perch looking down at all of us slugs.

Tim Zank on November 21, 2008 at 2:00 PM

This is a very good idea on the part of your new government. If the people don’t know what is going on then they are a lot less likely to get upset and challenge their rulers. The only criticism that I have is that they should have given me credit for the idea as they will obviously be following the example that I have set in my serfdom country. I will be keeping my eyes on them as they will probably steal some of my other ruling methods too.

PootyPoot on November 21, 2008 at 2:13 PM

I’m sick and tired of Democrats always putting an adjective in front of blatant opposition to the Constitution. The ones that get major play are reasonable and minor. Like minor gun restrictions, I mean they’re barely restricted even the Constitutions says none . And what the hell is reasonable? Only in the eye of the beholder of course…

Butters on November 21, 2008 at 2:18 PM

I think this particular court has been pretty clear up until now that laws restricting content and access to content on the Internet will be struck down as violations of the First Amendment.

I’m not sure any of the traditional case law on free speech (like Brandenburg) is even relevant to the Internet, except insofar as it provides a foundation to build on. Isn’t prevailing law at the moment defined by Reno v. ACLU in which the court struck down the Communications Decency Act? The Clinton administration tried six ways to Sunday to pass all manner of “reasonable restrictions” but they weren’t been particularly successful, so I’m not sure Barry will be any more so (not that it will stop him from trying of course). I think presently, free speech as it relates to the Internet is far less restricted than it is elsewhere for the simple reason that you cannot enforce such things as “community standards” or “reasonableness” when no actual community exists. Which begs yet another question, that being whether the United States government even has the jurisdiction to impose any kind of restrictions, taxes, etc. on Internet content and usage. I don’t see how they possibly could, given that “the Internet” does not really exist as an entity. What are they going to do? Only police content produced by U.S. citizens? What if said citizens register their child porn site in another country where the practice isn’t illegal? This is not something that can possibly be addressed via existing case law. The shouting fire in a crowded theater test doesn’t really apply here. All I know is, any attempts at controlling are doomed to failure. The Internet by its nature is not given to being boxed in by boundaries and parameters. If the wildly powerful entertainment industry with its army of attorneys and groves of money trees can’t stop the spread of illegal file sharing, then this band of pointy-headed utopians won’t be able to either.

If they want to impose some more rules and regulations and laws on us, they ought to try passing some legislation that requires people to exercise some personal responsibility. Then the liberals wouldn’t have to wring their hands over such things as Columbine and the fact that any idiot who can type (or read a book for that matter) can figure out how to construct a bomb in about half an hour.

NoLeftTurn on November 21, 2008 at 2:55 PM

Three obstacles to overthrowing an existant democracy:
1. Elections
2. Control of Information
3. Local / National exertion of power (police, national guard, federal military)

One down two to go.

jerseyman on November 21, 2008 at 3:19 PM

Australia’s socialist government now filtering ALL content, although–for now–I think you can bypass it.

Scary folks….scary.

Pitchfork time?

American Revolution II …. let’s roll.

ex-Democrat on November 21, 2008 at 3:39 PM

Redsoxnation . . .

You can’t yell “fire” in a crowded theater . . .

Well, you can if there is a fire. And you would probably avoid any form of punishment, even if you should happen to cause a bit of a panic amongst those who head for the exits — that is, unless you were somehow “in on” setting the fire in the first place! What was famously said by Justice Holmes in Schrenk v. United States was: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.”

and, as for

you can’t slander someone’s reputation without being liable for damages.

Sure. Tell that to Sarah Palin and Joe the Plumber! As for the former, they’ve only just started on her. And as for the latter, even if he goes after them (such as for the the use of motor vehicle records in violation of the Driver Privacy Protection Act) you’ve already seen the state workers claiming they were doing the look-ups to protect him!

But those are not really prior restraints on speech. Yes, they are intended to deter behavior, but not in the sense that regulation would be.

The federal government already does control some aspects of the internet, and punishes, or has the ability to punish certain forms of communication, e.g., child pornography, certain overt threats, facilitating terror-related activities, etc.

But this talk about regulation of the internet — or of talk radio — is an entirely different thing. Establishing governmental “fairness” standards for the purpose of controlling or manipulating content, is simply a preposterous notion. And words and phrases like “reasonable” and “rational basis” and “fairness” and “balanced” are all violative of any fundamental notion of free expression. Even if they pass, the Court will ultimately have something to say about it.

Once the discussion turns to any form of prior restraint that is, attempting to use the courts to stop the publication of anything before it is published . . . that is when the real fight is going to break out! I wouldn’t put my money on the regulators.

Trochilus on November 21, 2008 at 4:46 PM

And to think earlier this week, a co-worker claimed to have voted against McCain-Palin, because Palin allegedly asked a librarian if she ever considered banning books.

Micheal on November 21, 2008 at 5:30 PM

This guy is going to get destroyed in the nomination process.

WisCon on November 21, 2008 at 11:35 AM

Dude…wtf? By whom?

Jaibones on November 21, 2008 at 6:41 PM

Eric Holder is one of George Soros’ lap dogs who believes, like Obamanazi that the 1st and 2nd Amendments are “Obsolete”.

nelsonknows on November 21, 2008 at 6:55 PM

So much for “Change”. How long until we start seeing Jackboots and brown shirts? Holder shouldn’t be ANYWHERE near the Justice Department.

nelsonknows on November 21, 2008 at 6:57 PM

Jaibones on November 21, 2008 at 6:41 PM

good question ( and the answer is…..no one–no one who can’t be outvoted or ignored / ridiculed )

Janos Hunyadi on November 21, 2008 at 7:01 PM

NewsBusters has this up on Holder (bold emphasis is from NB):

Obama Attorney General Nominee Eric Holder Helped Enable 2000 Elian Gonzalez Seizure

Holder was Reno’s second in command at the Justice Dept.

Andrew Napolitano of Fox News stated:

The order issued by the 11th Circuit Court of Appeals four days ago …. said once the INS chooses the guardian, and the INS chose Lazaro Gonzalez (Elian’s paternal great uncle — Ed.) to be the guardian, and an application for asylum has been made by the guardian, the INS can not change the guardian and that’s exactly what they did here.”

Asman: “So is this executive overreach?”

Napolitano: “This is more than executive overreach. This is contempt of the circuit court of appeals order. This is a high class kidnapping is what it is, sanctioned by no law, sanctioned by no judge…”

This is from an interview Napolitano did later that day with Holder:

Napolitano: When is the last time a boy, a child, was taken at the point of a gun without an order of a judge. Unprecedented in American history.”

Holder: “He was not taken at the point of a gun.”

Napolitano: “We have a photograph showing he was taken at the point of a gun.”

Holder: “They were armed agents who went in there who acted very sensitively…”

and

Napolitano: Tell me, Mr. Holder, why did you not get a court order authorizing you to go in and get the boy?

Holder: Because we didn’t need a court order. INS can do this on its own.

Napolitano: You know that a court order would have given you the cloak of respectability to have seized the boy.

Holder: We didn’t need an order.

Napolitano: Then why did you ask the 11th Circuit Court of Appeals for such an order if you didn’t need one?

Holder: [Silence]

Napolitano: The fact is, for the first time in history you have taken a child from his residence at gunpoint to enforce your custody position, even though you did not have an order authorizing it.

INC on November 21, 2008 at 8:04 PM

Where in this statement does it say that the government has the authority to impose “reasonable restrictions” on speech?

Where our early documents does it say that the government has the authority to impose “reasonable restrictions” on

firearms?
privacy?
… (pick from a list)

The government “receives” it’s authority when the citzens permit it.

AZ_Redneck on November 21, 2008 at 10:40 PM

You just don’t understand the Democrat view of the Constitution. Every right in the Bill of Rights is subject to some restrictions. There are no absolute rights.

Except for the unwritten one to abortion. That one can not only not be restricted in any way, but it must be subsidized.

schmuck281 on November 22, 2008 at 1:24 AM

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