Lies the government told you by Andrew Napolitano (best e reader for epub TXT) 📗

whether the government’s restriction is more extensive than necessary to serve the interest. The fourth prong of the test is the most crucial, as it is the most difficult for the government to satisfy.

In Central Hudson, the Court found that the ban on all promotional advertising was more extensive than necessary, because no exception was made for promotional advertising of electric products that would actually reduce total energy use. Furthermore, the Commission did not demonstrate that its interests could be satisfied in a more limited way.

The Supreme Court, in the last twenty years, has used the Central Hudson test in a very speech-protective manner. In Edenfield v. Fane (1993), the Court bolstered the Central Hudson test, placing the burden on the government to demonstrate that its restriction directly advances the state’s interest.17 In the case of 44 Liquormart, Inc. v. Rhode Island (1996), the Court was faced with a Rhode Island statute prohibiting all advertising of the price of alcoholic beverages in the State, except for price tags or signs located within liquor stores and not visible from the street.18 The Court invalidated the statute.

While some of the justices simply held that the law violated the fourth prong of the Central Hudson test, Justice Stevens went one step further in his plurality opinion. According to Stevens, “[bans] against truthful, nonmisleading commercial speech [usually] rest solely on the offensive assumption that the public will respond ‘irrationally’ to the truth.”19 This statement could not be more accurate. The government cannot rob persons from saying whatever they want nor keep information or opinions away from consumers. Why is the government opposed to persons making informed decisions for themselves by recognizing their natural right to think, speak, publish, and hear whatever they wish about whatever they wish?

Unfortunately, the government does not seem to get the message. In Lorillard Tobacco Co. v. Reilly (2001), the Massachusetts attorney general issued regulations banning outdoor advertising of tobacco products within one thousand feet of a public playground or elementary or secondary school.20 The Supreme Court held that the regulations violated the First Amendment. Justice Sandra Day O’Connor delivered the opinion of the Court, in which she conceded that the State has an interest in preventing underage tobacco use, but stated that “[tobacco] retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products”21 (emphases added). The requirement of truthful information is antithetical to “Congress shall make no law abridging . . . the freedom of speech.” Is the government, which has stolen everything it owns and has lied about everything it does, institutionally capable of ascertaining the truth? Only if the truth will enhance or confirm its power; otherwise, I think not.

Despite Massachusetts’ failure to control tobacco use, the federal government found it wise to give similar regulations a shot. On June 22nd 2009, President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act.22 The word control is actually built into the title of the law! The Act restricts retail stores and many forms of print advertising to black-and-white text.23 In step with the unconstitutional Massachusetts regulations, the Act also bans outdoor advertising within one thousand feet of schools and playgrounds.24 According to opponents of the law, the ban on outdoor advertising would essentially ban tobacco advertising in many cities.25 Furthermore, the ban on colorful ads will undoubtedly restrict tobacco companies’ communications to adults.26

This law is filled with even more First Amendment problems than the regulations in Lorillard, and will undoubtedly face constitutional challenges. I have an idea: If the government hates or fears certain speech, why not combat it with more speech rather than making it criminal? If government derives its power from the consent of the governed, and if we the governed cannot ban the speech we hate or fear, how can we authorize the government to do so?

The government also tries to protect its citizens from indecency and nudity. In Erznoznik v. Jacksonville (1975), the Supreme Court of the United States struck down a Jacksonville, Florida, ordinance characterizing nudity in films displayed at drive-in movie theaters as a public nuisance.27 Specifically, the ordinance banned movies “in which the human male or female bare buttocks, human female bare breasts, or human bare pubic areas are shown, if such motion picture[s] [are] visible from any public street or place.” Such “selective exclusion” is not only odd, but blatantly reveals the government’s attempt to regulate some types of speech “on the ground that they are more offensive than others.” According to the Court, these types of restrictions violate the First Amendment. The Court also opined that the Jacksonville ordinance is “over-inclusive” in that it disregarded the context in which the nudity was portrayed. Therefore, the ordinance worked to restrict nonobscene material.

In 1989, the Supreme Court struck down a ridiculous law banning the interstate transmission of “dial-a-porn” services that communicated “indecent” telephone messages.28 Justice Byron White wrote the opinion of the Court, in which he stated that the government cannot ban messages that individuals must take “affirmative steps” to obtain. Justice White understood the government’s interest in protecting children, but reasoned that the federal statute amounts to censorship “limiting the content of adult telephone conversations to that which is suitable for children to hear.”29

The foregoing examples represent just the tip of the iceberg. Fortunately, however, the Supreme Court has generally resisted government efforts to circumvent the First Amendment and control people.

The “Fairness” Doctrine and Censorship

“Fear of ideas makes us impotent and ineffective.”

– Supreme Court Justice William O. Douglas

The so-called Fairness Doctrine debuted in 1949, as a Federal Communications Commission (FCC) rule requiring that licensed broadcast stations discuss public issues and present both sides of any debate.30 The Doctrine stemmed from the FCC’s fear that due to the limited number of radio frequencies available, and the overwhelming number of applications for licenses, broadcasters could simply report a limited number of perspectives, shutting out most other views.31 The Doctrine worked in