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Friday, February 10, 2012

Once Again, the Obamacare Mandate is a Violation of Freedom of Speech

Update: Obama just announced his "compromise" which is pretty much what was predicted and as usual pretends everyone is playing politics, except him who rises above everything.  Right.

So all week there has been this uproar about the recent ruling that religious employers—like churches or church-based hospitals—would be required to provide “contraception,” a popular euphemism for a set of rules that include coverage for the abortion pill.  Last Sunday I was at a Catholic church and just about the entire homily (or “Sermon” to us Protestants) was reading off a letter in protest of this policy.  And today we get word of a weak “accommodation” where the religious based employers will not have to provide it in their insurance policies, but the insurance companies would still have to provide it to the policy-holders.

So how does that work?  Ordinarily insurance works by taking a large number of policy holders’ money and putting it into a pool and then distributing the benefits to policy holders.  Instead of that, it won’t be officially offered as part of these employers’ plans, but it will be part of the package of benefits they offer, paid for presumably by the common pool.  Which, gosh sounds like exactly the same thing but with the usual governmental layer of red-tape, regulation and bull____.

Of course that is only the rumor of the offer, and possibly even a trial balloon, so maybe that won’t be the final proposal.

But the funny thing is that I addressed this very issue a few months back and pointed out that this is positively a reason why the Obamacare mandate (to employers or individuals) is unconstitutional.  You see very often the argument against the mandate focuses on the idea that the Federal Government doesn’t have the power to force you to buy a good or service.  And they are certainly right.  But you can say more than just that the Constitution doesn’t affirmative grant the power.  You can say that the Constitution affirmatively prohibits the Federal Government from enacting such a mandate.  There is also a positive right not to buy a good or service from a private company, in the First Amendment.

There is, after all, a right to boycott.  As I wrote over a year ago when discussing the Liberty University case (a less-famous Obamacare challenge by Liberty University and scattered individuals):


[I]s there an expressive element to refusing to engage in a transaction, ever?

Of course there is, and it is one of the oldest forms of expression known: the boycott.

Liberty University and the scattered individuals who sued in this case have a constitutional right to refuse to associate with any entity that engages in abortion, to boycott it (and this is true of any issue, not just abortion).    Even if none of their money touches an abortion doctor’s hand, they are allowed to say, “as long as you allow this, I will not contribute my money to your company.  I will not associate with you.”

In NAACP v. Claiborne Hardware Co., the Supreme Court said that “[t]he right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself.”  The same would assuredly apply to the Federal Government.  And yet this decision has effectively said that where interstate commerce is involved (and according to the court [in Liberty University] it is always involved in everything, apparently), Congress can effectively outlaw the boycott.

I mean consider a simple example.  Rosa Parks one day decides she is not giving up her seat to a white man even though a law purports to require her to, and as a result, she is arrested.  In response Martin Luther King, Jr. and many others lead a boycott of the bus system.  But, according to the court in Liberty University, Congress could pass a law requiring every person to use a city bus for transportation where it is available, and thus outlaw the Montgomery Bus Boycott.

And this applies to any issue you are concerned about.  Maybe you don’t want to deal with any country that invests in Israel.  Or you are upset at a company because it has divested from Israel.  Or whatever your issue is.  The point is that people boycott companies for lots of different reasons if you are forced into an economic relationship with a company against your will, it is a violation of your right to boycott.

And really, in general, the government should not make a person choose between reasonable, deeply held convictions and obeying the law.

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5 comments:

  1. "...the government should not make a person choose between reasonable, deeply held convictions and obeying the law."

    Okay. For the past several years, I have paid federal taxes, some of which have gone to support a war which I oppose. My opposition to that war was objectively reasonable and a deeply-held conviction.

    So, according to you, my First Amendment rights have been violated, because if I had my druthers, I would have boycotted the war by not showing my (monetary) support for it.

    When do I get my refund?

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  2. Ken

    that last paragraph is a policy statement, not a statement about the law.

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  3. I think you're avoiding the issue.

    My point is that people pay taxes, and that money flows to entities with whom some people might have a strong objection. For example, many states give money to Planned Parenthood for cancer screenings of the rural/poor citizens. What of the pro-lifer who pays taxes in one of those states? Are you suggesting his "right to boycott" has been trumped? (And, like you, this can be applied to "whatever your issue is", right or left)

    Your problem is that you have read too much into your Claiborne quote. After all, it is Claiborne court which also wrote:

    "This Court has recognized the strong governmental interest in certain forms of economic regulation, even though such regulation may have an incidental effect on rights of speech and association." (Claiborne at 912, noting that "secondary boycotts and picketing by labor unions may be prohibited, as part of 'Congress' striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife.'")

    So obviously, a boycott CAN be effectively outlawed by the government. So why did the petitioners in Claiborne win, while other boycotters lose? As with most things constitutional, it's a balancing act between the "rights" of the boycotters and the governmental interest. In Claiborne, laws were targetted to specifically discriminate against the blacks -- hence, their outrage and their boycott. But with Obamacare, as well as the current contraception "controversy", the law at issue is a generally-applicable law which applies to every business. And that's why it's not comparable.

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  4. Ken

    > In Claiborne, laws were targetted to specifically discriminate against the blacks -- hence, their outrage and their boycott. But with Obamacare, as well as the current contraception "controversy", the law at issue is a generally-applicable law which applies to every business. And that's why it's not comparable.

    The S.C. doesn't discriminate in speech rights based on whether or not it agrees with the speech.

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  5. > The S.C. doesn't discriminate in speech rights based on whether or not it agrees with the speech.

    I didn't say it did. But the S.C. looks to the nature of the speech. Is the speech/boycott to OBTAIN a right (as it was in Claiborne)? Or is the speech merely an exercise a right (such as the Catholic church's desire to avoid any link to contraception)?

    The Claiborne Court decided the way it did because "Petitioners sought to vindicate rights of equality and of freedom that lie at the heart of the Fourteenth Amendment itself." (the line that precedes your quote).

    But when you boycott a company, you are not trying "to force governmental and economic change" nor are you trying to "effectuate rights guaranteed by the Constitution itself".

    Again, it's not comparable.

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