While Obama ally ACORN attempts to gag whistleblowers who exposed its role in a recent scandal, the Obama administration is trying to gag critics of its health-care plan, which the Congressional Budget Office says could wipe out many Medicare Advantage programs relied on by the elderly. (“The Obama Administration wants to seriously curtail or end Medicare Advantage.”)
It has issued a gag order to Humana, a health insurer that provides Medicare Advantage services, ordering it not to tell customers about how Obamacare could reduce the availability of such services. The gag order clearly violates the First Amendment, according to law professor Eugene Volokh, the author of a leading treatise on First Amendment law, and a former law clerk to Supreme Court Justice Sandra Day O’Connor. The gag order has also been criticized by the Wall Street Journal, the San Francisco Examiner, and Senate Minority Leader Mitch McConnell, yet the administration obstinately insists on enforcing it.
The Supreme Court has said the First Amendment protects the free speech rights of businesses like Humana even when they are government contractors, in cases like Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996).
Liberal Obama supporters hypocritically claim Humana should shut up because it’s receiving federal funds (an argument they would never make regarding artists funded by the National Endowment for the Arts), and because its claims are supposedly false (never mind that its truthful claims are echoed by the non-partisan Congressional Budget Office, which is headed by Democrat Douglas Elmendorf).
But as Professor Volokh and the Washington Supreme Court have recently noted, “false statements of fact about the government are generally protected” by the First Amendment.
Humana’s statements are predictions about the future, and thus by definition not provably false. Moreover, they are chillingly accurate predictions, which is why Obama ally Senator Max Baucus (D-Mont.), who is drafting Obama’s health-care plan, asked Obama to ban them:
“On Tuesday, the Congressional Budget Office director told Mr. Baucus’s committee that its plan to cut $123 billion from Medicare Advantage—the program that gives almost one-fourth of seniors private health-insurance options—will result in lower benefits and some 2.7 million people losing this coverage. Imagine that. Last week Mr. Baucus ordered Medicare regulators to investigate and likely punish Humana Inc. for trying to educate enrollees in its Advantage plans about precisely this fact.”
The fact that Humana is a government contractor doesn’t make this censorship any more acceptable, since the government simply has no business policing criticism of itself as “false”: federal courts have ruled that even false speech by government contractors and employees on matters of public concern can be protected, as cases like Johnson v. Multnomah County, 48 F.3d 420 (9th Cir. 1995) show.
Nor is there any evidence that Humana is using federal money to disseminate its message. And any subsidies Humana might be receiving would not justify the Obama administration’s blatant viewpoint discrimination against it, since Obama allies that receive lots of federal subsidies are being allowed to trumpet their support for Obamacare freely. Under the Supreme Court’s ruling in Rosenberger v. Rector of the University of Virginia, viewpoint discrimination is a forbidden, “egregious” form of discrimination even when the government is subsidizing a speaker; here, the federal government is plainly engaging in viewpoint discrimination, since it is letting AARP make blatantly false claims in favor of Obamacare that contradict CBO finds and basic budget math, while blocking Humana from criticizing Obamacare based on reasonable arguments echoed by the Congressional Budget Office).
The Obama administration’s position contradicts the position of the Clinton administration, which admitted that Medicare contractors have free speech rights. (But then, Obama is well to the left of Bill Clinton and past presidents).
Obama earlier showed contempt for the Constitution and the rule of law by radically expanding Bush’s auto bailout, violating federal bankruptcy laws and the TARP statute in the process. (The Obama administration ripped off taxpayers and retirees in the General Motors and Chrysler bailouts, in order to enrich the left-wing United Auto Workers union, in unnecessary bailouts that have cost at least $70 billion, drawing criticism even from the liberal Washington Post. Many commentators argued that the auto bailouts were illegal, such as the Heritage Foundation and Clinton administration Labor Secretary Robert Reich.)
He also demanded that a small country in Latin America (Honduras) violate its constitution by allowing the return to power of its left-wing ex-president and would-be dictator, imposing travel sanctions on its ordinary citizens as punishment for a ruling by its supreme court refusing to reinstate the ex-president, who was removed for violating his country’s constitution. (The ex-president, Mel Zelaya, is a paranoid, erratic bully who claims he is being subjected to “mind-altering radiation and poison gas” and targeted by “Israeli mercenaries.”)