|Free to Lie, but not to Opine?|
By Quin Hillyer
Thursday, November 03 2011
Imagine a country where outside groups could be punished for offering their opinion about the effects of a government official’s actions, while the government itself could knowingly lie with impunity about whether a document even exists. We would see a political opinion punished as a lie while something that is indisputably a lie would be protected by law. Alice, meet Looking Glass; or Cossack, meet Lenin.
This may be the state of law in today’s America.
The first case involves a former congressman actually suing an interest group for defamation, merely for running advertisements complaining about his voting record. Note that the thin-skinned congressman, Democrat Steve Driehaus of Ohio, did not have his character impugned, was not accused of scurrilous behavior, and was not even subject to pejorative language. Instead, the anti-abortion group called the Susan B. Anthony List (henceforth SBA) did nothing more than say that Driehaus “voted for taxpayer funding of abortion.” The reference was to his vote for ObamaCare – about which a debate still rages, 19 months after the law’s passage, about how various abortion-related provisions can be interpreted. Driehaus contends that Obamacare would not allow taxpayer-funded abortions; SBA complains that it does.
The primary purpose of First Amendment speech protections is to allow free debate in the public square; if the First Amendment doesn’t protect ads like SBA’s, about a matter entirely up to interpretation, then the amendment is worthless.
Until this week, though, courts actually had found in Driehaus’ favor. On Wednesday, however, federal district court judge Timothy S. Black granted SBA’s request for an appeal to be heard by the U.S. Sixth Circuit Court of Appeals. Thank goodness common sense still reigns somewhere in American courts. As Judge Black wrote, “there is substantial ground for difference of opinion here.” Indeed. The entirety of our constitutional republic is predicated on the idea that the public square and the ballot box are the best places to adjudicate such differences of political opinions. To suggest otherwise is chilling in the extreme.
Perhaps, though, it is no more chilling than the rule change formally proposed last week by the Obama Justice Department. The rule involves what a government agency should do if an official, lawful Freedom of Information (FOIA) request involves circumstances where complying with the request would compromise a criminal investigation or confidential informant, or disclose classified information. Current rules allow the information to be withheld, but at least let the requestor appeal to the courts for review of the decision not to divulge it. But the Obamites want to eliminate that safeguard for open government – and to replace it with legally approved lying. The new proposed rule would tell agencies to “respond to the request as if the excluded records did not exist.”
This comes from an administration already increasingly guilty of abusing FOIA rules, most notably in its continuing fight against releasing full information from White House visitor logs. Indeed, this administration has been particularly flagrant in using the FOIA process for nakedly political purposes, as a means to expedite useful information to left-wing groups while delaying or completely withholding information requested by conservatives. In failing to abide by rules mandating a certain time limit for at least an initial response to FOIA requests, the administration is breaking the law as surely as it would if it actively shredded documents.
Not even those abuses, however, rise to the level of deliberate, outright, legally backed lies. For the administration now to make lying an option as part of an official regulation is mind-boggling, and an affront to a free society. At least a cover-up involving document shredding can by punished by law, if discovered – but with this proposed new rule, the dishonesty (and the keeping of secrets from the public) would not only be unpenalizable, but actually encouraged.
This would, in effect, enshrine into law Richard Nixon’s infamous statement that “When the president does it, that means that it is not illegal.”
For advocates of freedom, this lying should not be taken lying down.
And, as per the SBA suit, nor should we allow a court to tell us that we can’t criticize an official for lies, or for any other action, no matter how upright the official claims to be.
Addendum: Following posting of this piece, Senator Chuck Grassley issued this press release, indicating that the Obama administration is withdrawing the controversial FOIA regulation, in response to outrage against it.
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