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ISTOOK: Enlarging his rule, shrinking the Constitution

Obama argues profit-seekers forfeit their First Amendment rights

- - Sunday, December 15, 2013

The disaster of Obamacare could prove minor compared to some of President Obama's other goals. We could lose much of our religious freedom, free speech, free press and more if his other efforts succeed.

Mr. Obama might say that if you like your constitutional rights, you can keep them. His actions, though, reveal a plan to lock in his power by reducing opponents' rights and restricting their ability to thwart his will. The president wants his agenda to be safely beyond the reach of the people's constitutional rights. Then we could be controlled permanently by liberal elites.

Mr. Obama's shows his intent in the pending Supreme Court case of Sebelius v. Hobby Lobby. This case involves more than Obamacare's contraceptive mandate; it's being used as a vehicle to limit other First Amendment rights in addition to religious freedom.

The government's legal briefs in Hobby Lobby don't focus in familiar ways on federal authority or balancing constitutional rights or the boundaries between church and state. Instead, Mr. Obama's solicitor general advances the novel legal argument that constitutional rights are reduced whenever a profit motive is involved. If the Supreme Court agrees, it gives Mr. Obama a hammer he would wield to kneecap his political opponents. Ever since the 2010 decision in Citizens United, he has gone overboard in denouncing corporate speech, even endorsing a constitutional amendment to restrict it. Ever since he has been president, Mr. Obama has gone overboard in trying to control, manipulate and intimidate the media.

A favorable Hobby Lobby ruling could provide Mr. Obama with a springboard for penalizing corporations and the press whenever they interfere with the White House message, bolstering his frequent complaint that they stir people up against him in order to make money. Simultaneously, that advances his redistribution agenda ("income inequality" in Obama-speak) of denouncing profit-seekers and pushing people to depend more on government and less on the private sector.

Even if Mr. Obama doesn't win his argument that the profit motive limits a company's constitutional rights, he could hope that just one more Supreme Court appointment could bring him victory.

Here is how a Hobby Lobby ruling could become a limit on freedom of the press:

The company's owners, the Green family in Oklahoma, have religious objections to abortion. They don't object to 16 of the methods of contraception that Obamacare dictates they must provide via insurance, but they object to four other mandated methods that they and others say induce early-stage abortions, like the morning-after pill.

Obeying Christian principles is a stated purpose of this business. All stores close on Sundays. They run advertisements that promote Christianity. Although it has more than 500 stores, Hobby Lobby is owned by just seven family members and operates as a subchapter S corporation. This means that for tax purposes, it is treated as seven individuals, not as a typical corporation. They invoke the First Amendment and the federal Religious Freedom Restoration Act, arguing that government cannot interfere with their religious beliefs without the most compelling of justifications.

None of this matters to the Obama administration. It argues to the Supreme Court that Hobby Lobby is a corporation seeking to make profits and that only religious nonprofits can qualify for any First Amendment rights and protections. It doesn't argue that Hobby Lobby thereby forfeited religious rights specifically. Rather, it argues that by seeking profit, Hobby Lobby has forfeited its First Amendment rights in general. In this case, freedom of religion is surrendered. In future cases, disallowing other free-speech rights could be used to stop a media company's embarrassing stories, eavesdrop on reporters, prosecute whistleblowers or otherwise control the media owing to the taint of an "evil" profit motive.

No argument is too extreme for the White House. "This [administration] is the most hostile to the media ... in United States history," noted former CNN anchor Bob Franken recently on MSNBC. "This is the most closed, control-freak administration I've ever covered," according to The New York Times' chief Washington correspondent, David Sanger.

Surely Mr. Obama would tell us that, like the Founding Fathers, he would never restrict the First Amendment freedoms of individual reporters, but their companies ... ? Long ago, the president's men told us Fox News is not a legitimate news organization. This administration, with its Occupy Wall Street allies, has constantly attacked "corporate greed" in every aspect of America. Unless Fox News, CBS News and others became clones of nonprofit National Public Radio, their addiction to pursuing profits could become an excuse to suppress media selectively, based on content that displeases the White House.

Yet any media that convert to a nonprofit structure would run into the new Internal Revenue Service regulations that claim power to regulate political speech of nonprofits. Concerns also continue that Mr. Obama's Federal Communications Commission wants to bring back the misnamed Fairness Doctrine to curb conservative talk radio. Finally, muzzled media also provide less competition for propaganda, like the $684 million the Associated Press calculates government is spending to promote Obamacare.

Mr. Obama's biggest problem is not the mess he's made of Obamacare and of our economy — it's public awareness of these debacles. Knowledge is power. When people think they're alone in their outrage, they sulk and fume. When people learn that others are also outraged, they join together and act. That's why President Obama is a control freak. He worries that we'll be told the full truth about his presidency.

Ernest Istook is a former Republican member of the U.S. House of Representatives from Oklahoma.