Life, Liberty, Property #24: rhetorical cage match over student loans in the wake of the U.S. Supreme Court’s decision to block Biden plan.
IN THIS ISSUE:
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- Rhetorical Cage Match Over Student Loans
- Banning Secret Censorship
- Undercover Recording’s No Crime, Court Rules
- Cartoon
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Rhetorical Cage Match Over Student Loans
In the wake of the U.S. Supreme Court’s decision to block President Joe Biden’s student loan debt cancellation plan based on emergency powers in the 2003 HEROES Act expansion, the president is shifting to a new approach he claims federal law allows.
The Republicans are pushing a counteroffer to those with college debt: the Federal Assistance to Initiate Repayment (FAIR) Act, sponsored by Rep. Virginia Foxx (R-NC), chair of the House Education Committee, and Reps. Burgess Owens (R-UT) and Lisa McClain (R-MI), and the Lowering Education Costs and Debt Act in the Senate, from primary sponsor Sen. Bill Cassidy (R-LA).
Biden’s plan has a simple concept: debt forgiveness. It eliminates all or part of the student debt owed by some 43 million Americans, at the bargain price of $430 billion. It’s a blatant vote-buying scam. It seems to have worked splendidly in 2022.
The Republican bills would block Biden’s proposed new plan, and they would ease debtors back into repayment through less-onerous billing schedules. Here’s how Republicans describe the House bill, as reported in The Epoch Times:
“The FAIR Act is a fiscally responsible, targeted response to the chaos caused by Biden’s student loan scam,” the bill’s sponsors said in a joint statement. “This Republican solution takes important steps to fix the broken student loan system, provide borrowers with clear guidance on repayment, and protect taxpayers from the economic fallout caused by the administration’s radical free college agenda.”
You can find the details of the two GOP bills in the Epoch Times story. They make much sense within the limitations of the debt forgiveness discussion. What is really going to determine whose policies are ultimately implemented, however, is how the two appear to the general public. Politics is based on perceptions, of course.
The media consistently describe Biden’s plan as debt “forgiveness.” Forgiveness sounds very nice. Debt “transfer,” which is what the plan really amounts to, does not sound quite so benevolent. But this is forgiveness. Who could oppose forgiveness? What is wrong with such people?
The Republicans, in response, commit an unforced error by calling Biden’s plan a “radical free college agenda.” I suppose that they think the term “radical” is a real zinger. I also suppose that the 43 million Americans who owe money on college loans will be highly disposed to skip over that word and see the plan as “free college.”
Let’s see: “free” sounds good, and “college” sounds good, so “free college” must be good times good—good squared—or, for short, great!
The Republicans, by contrast, are devising a plan to replace forgiveness with repayment. Guess who is going to win that public-relations battle.
Forgiveness: a thing of beauty. Repayment: waaaah!
Biden will do here as he has repeatedly done throughout his tenure as president: implement vote-buying giveaways of other people’s money which he knows will not pass muster under the Constitution, and then dare the Republicans to allow those gifts to be wrenched from the hands of the needy when the courts later knock down the president’s illegal schemes.
The Republicans, for their part, will take the bait and offer “sensible” alternatives.
Sensible repayment. Debt forgiveness and free college.
Is it any wonder that the government debt continues to skyrocket?
Source: The Epoch Times
Banning Secret Censorship
The Biden administration has been deliberately intimidating media companies to censor content in violation of the First Amendment, a federal judge has ruled.
U.S. District Judge Terry A. Doughty of Louisiana issued a temporary injunction last Tuesday barring Biden administration officials from “meeting with social-media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms,” as stated in the court’s judgment. The injunction will remain in effect until the case is decided.
The ruling specifically bans ten categories of actions by the administration, such as “flagging content or posts” or “forwarding such to social-media companies” with the purpose of “urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech.” The ban applies to “emailing, calling, sending letters, texting, or engaging in any communication of any kind with social-media companies” for those purposes, the judge stated.
In addition, the government may not try to pressure social-media companies to get them to change their content guidelines, nor may it work with outside groups to strongarm these companies into altering their content or policies.
Doughty also specifies eight activities the injunction does not prohibit, such as warning of “postings involving criminal activity or criminal conspiracies” and of “national security threats, extortion, or other threats posted on its platform,” and cyberattacks and other “threats that threaten the public safety or security of the United States.”
The ruling does not prohibit the government from “exercising permissible public government speech promoting government policies or views on matters of public concern.”
That last exception is important. People should not lose their freedom of speech when they enter government service. Government workers retain the same constitutional rights as the rest of us. What they may not do is use the power of government, either explicitly or implicitly, to accomplish things the Constitution does not allow.
That is precisely what the Biden administration was doing in the case at hand: instructing private entities on what the government wanted the public to hear and not be allowed to hear. The secrecy is the key, in my view. A government official has every right to make public statements regarding what he or she or the president wants media companies to cover and what to hide. What none of these people may do, however, is to go directly to those companies and their employees or board members and tell them what the president or anyone else in the government wants them to do. When applied to information companies, that is censorship, and the Constitution forbids the federal government from engaging in it.
For government officials to make public comments about what content the public should be allowed to see and hear on media outlets, including social media, is surely wrong and intrusive. The Constitution, however, is a process document, not a moral guide. I, for one, prefer that it be seen that way and treated accordingly. Processes are clear, whereas morality is endlessly debatable. If we leave it up the moralists, we’ll find that the U.S. Constitution allows the imposition of a totalitarian Communist regime. We’re already well along the way, you might think.
The great and dispositive difference between public statements and the private urgings banned by the injunction is transparency. Government instructions to private citizens made through public statements are subject to a possible public backlash, thus providing a check on a government’s impulse toward such transgressions. Governments that publicly place pressure on or coordinate with private citizens and businesses show what they are made of. The public has the right—and, crucially, the opportunity—to decide whether they approve, if the statements are made publicly.
Pressure or coordination applied through clandestine backchannel contact with private citizens can evade such a backlash as long as it remains hidden, as demonstrated by the long time that the Biden administration was able to get away with its reprehensible scheming before the activities came to light. The censorship went on behind closed doors. The public did not know what it did not know. There was no way to place any kind of constraint on the government.
A further principle the Biden administration violated in its underhanded campaign of intimidation and conspiracy is that the government may not violate our rights “by using private entities to do its dirty work,” as Phillip Hamburger of the Columbia Law School noted in The Wall Street Journal last December (as I quoted him in Life, Liberty, Property issue number 1):
Section 241 of Title 18 of the U.S. Code provides: “If two or more persons conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, . . . they shall be fined under this title or imprisoned not more than ten years, or both.”
Working through “private cutouts,” as Hamburger describes these arrangements, does not authorize the government to evade the limits created by our constitutional rights. This is not just a matter of federal statute but of constitutional principles. The Biden administration and any privately employed individuals who cooperated in this scheme broke a federal law, in addition to evading constitutional restrictions.
Doughty’s injunction tells them to stop. Criminal prosecutions would make sure that they stop and others don’t try again later.
I nominate Joseph Robinette Biden as the first to be indicted.
Sources: State of Missouri, et al. versus Joseph R Biden Jr., et al.; The Wall Street Journal
Undercover Recording’s No Crime, Court Rules
Should recording a conversation without the other person’s consent be illegal? A federal appeals court has ruled that an Oregon law banning such recording is unconstitutional.
The law included some exceptions, such as when “a law enforcement officer is a participant if the recording is made while the officer is performing official duties and meets other criteria,” Judge Sandra S. Ikuta writes for the majority.
The exceptions show that the statute is not “content-neutral,” Ikuta notes. Hence the law, as “a content-based speech restriction,” must be subjected to “strict scrutiny,” which “requires the government to show that the speech restriction is ‘narrowly tailored to address the State’s compelling governmental interests’” and is “constitutional with respect to ‘each activity within the proscription’s scope,’” Ikuta writes.
The law fails to meet that standard, the judges found. The Epoch Times reports:
Oregon doesn’t have a compelling interest in protecting people’s privacy in public places, the majority ruled. Even if it did, the law is not tailored narrowly enough because Oregon has other laws that cover privacy concerns, such as one allowing tort lawsuits by people who are recorded without consent.
The law “burdens more protected speech than is necessary to achieve its stated interest,” the judge wrote.
The judge also said that the law regulates speech to protect people’s privacy but that many people in public places don’t seek privacy. Instead of acknowledging that point, the law treats all speech in public the same.
The ruling involves chains of inferences and careful distinctions between the statute under consideration and the laws cited as precedent. For example, the majority decision states that the law against recording “is not narrowly tailored,” because “[i]ndividuals whose conversation is captured in public by unannounced recordings ‘can vindicate their rights’ through an invasion of privacy tort.’ … Or if the recording is fabricated, ‘the victims can turn to defamation actions for recourse.’” With these aspects of the law being already covered under other statutes, the state does not have a compelling interest in dealing with them through this one, which means the law in question is not narrowly tailored. That’s sound reasoning and rather sophisticated.
The investigative journalism organization Project Veritas challenged the statute in 2020, arguing the threat of criminal charges prevented the organization from being able to conduct investigations in the state. In 2021 U.S. District Judge Michael Mossman ruled against the journalists. The appeals court decision reverses that ruling.
The court’s decision is a big victory for journalists investigating possible crimes and government malfeasance:
“Realizing the law had nothing to do with protecting privacy and everything to do with the suppression of undercover journalism, the Ninth Circuit facially invalidated the law,” Benjamin Barr, an attorney representing Project Veritas, said in a statement [ The Epoch Times reports].
“This ruling helps citizen journalists throughout the state be able to gather high-value information and report upon it to the public without fear of criminal sanctions by Oregon. As it stands in other areas of the law, whatever one shares in public cannot be deemed private, and recording laws that punish this sort of newsgathering should fall by the wayside,” Mr. Barr added.
Meanwhile, the appeals court’s decision does not undermine individual privacy, because the tort system and defamation laws provide a remedy for invasions of privacy, as Ikuta notes.
Sources: The Epoch Times; Project Veritas v. Schmidt
Cartoon
