David R. Henderson  

The Feds' Attack on Freedom of Speech

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Aren't Faux-Agnostic Economist... Competition in Media Works...

Not the Fed, as in Bernanke, but the Feds, as in the federal government.

Here are excerpts from an AP news story that just came in:

The government is investigating a major insurance company for allegedly trying to scare seniors with a mailer warning they could lose important benefits under health care legislation in Congress.

And the most chilling two paragraphs:

In a warning letter to Humana, HHS said the government is concerned that the mailer "is misleading and confusing" partly because the company's lobbying campaign could be mistaken for an official communication about Medicare benefits.
HHS ordered the company to immediately halt any such mailings, and remove any related materials from its Web site. In the letter, the government also said it may take other action against Humana, which is based in Louisville, Ky.

One of the ways that governments try to "win" debates is to make debate by the other side illegal. This is what HHS is doing, at the behest of Senator Baucus. Asked on yesterday's Face the Nation on CBS whether a "sort of meanness" had settled "over our political dialogue," Obama said, "Right." I'm not sure that the questionner, Bob Schieffer, knows the difference between meanness and anger. I have seen some of the former, but much of the latter, at the various town hall meetings. But here's where Obama has a chance to practice what he preaches. He has the power to countermand HHS's order. And HHS's action would certainly qualify as mean. You can't get much meaner than to threaten someone with guns. And that is what a warning letter from HHS is. Think about what would happen if Humana ignored the HHS letter and kept speaking out critically on health care. The next step would be to bring Humana to court. If Humana refused, the next step would be, literally, for the Feds to come in with guns.

For years, various commentators have said that Friedrich Hayek, in The Road to Serfdom, and Milton Friedman, in Capitalism and Freedom, exaggerated the dangers to freedom of speech from government control. But also for years, drug companies have feared criticizing the FDA because the FDA has so much discretionary control over their economic livelihoods. Now HHS has upped the ante. Will the defenders of freedom of speech step up to defend Humana's rights, as opposed to Humana's statements. How many people will there be who disagree with what Humana said, but who defend (I don't even need "to the death"--I'll settle for a letter and postage stamp) their right to say it?

BTW, here's the Humana mailer. The Huffington Post blogger, Dawn Teo, seems to disagree with its content. Now to the big test: will she defend Humana's freedom of speech? I'll bet she doesn't but this is a bet I would truly love to lose.

Bleg: I can't find an actual copy of the HHS letter on the web and so I'm taking the press's word for it. Can anyone provide a link to the actual letter?

Update: Let's Give them a Fair Trial and then Hang Them

Thanks to commenter MBP below, we now have a link to the letter from HHS to Humana. It's only three paragraphs. Here are the last two:

CMS is concerned that, among other things, this information is misleading and confusing to beneficiaries, represents information to beneficiaries as official communications about the Medicare Advantage program, and is potentially contrary to federal regulations and guidance for the MA and Part D programs and other federal law, including HIPAA. As we continue our research into this issue, we are instructing you to end immediately all such mailings to beneficiaries and to remove any related materials directed to Medicare enrollees from your website.
Please be advised that we take this matter very seriously and, based upon the findings of our investigation, will pursue compliance and enforcement actions.

Besides the excellent point made by RL, the second commenter below, notice two other interesting things:

1. It's "potentially contrary to federal regulations" and therefore "we are instructing you to end immediately, etc." So just the potential that it's violating the law is enough, apparently, for Teresa DeCaro to make her threat.

2. Also, "based upon the findings of our investigation, will pursue compliance and enforcement actions." Notice a little step missing? What if they investigate and find nothing wrong? She's, of course, presuming the outcome of the investigation.


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CATEGORIES: Regulation



TRACKBACKS (3 to date)
TrackBack URL: http://econlog.econlib.org/mt/mt-tb.cgi/2339
The author at Ace of Spades HQ in a related article titled Obama Administration Threatens Health Insurance Company For Deviating From Approved Thoughts writes:
    Dissent is the highest form of shut your mouth or else. The Humana mailer focused squarely on the Medicare Advantage program. "While these programs need to be made more efficient, if the proposed funding cut levels become law, millions of... [Tracked on September 21, 2009 6:05 PM]
The author at Three Sources in a related article titled Protecting You from Misleading Speech writes:
    Andrew Jackson used friendly, patronage postmasters to withhold the delivery of pamphlets opposing his administration. Well, bring back the Alien and Sedition Acts! We've got a public to protect! David Henderson referencing an AP story: The government ... [Tracked on September 21, 2009 8:11 PM]
    In a blatant and frightening act attacking free speech in an effort to prevent criticism of Obamacare, in particular - the Baucus plan, the federal government is telling Humana to cease and desist from telling seniors about the planned cuts in Medicare... [Tracked on September 22, 2009 11:45 AM]
COMMENTS (56 to date)
Troy Camplin writes:

I think this points to something we should all consider when we say that the government should do this or that: is it worth killing someone over? Because, in the end, that's what we're talking about. That is what we're always talking about when we say the government should or should not do something. If you don't comply, you die. As George Washington said, government is not reason, it is force.

Another way of thinking about it: what actions can another take that you can legitimately kill them over? If someone tries to murder, rape, or steal from you, you can kill them, and you will find few who think you can't. But should you be able to kill me if I refuse to help you help someone else? Yet, we agree to let out governments act that way.

If Baucus' bill passes, I would get a fine if I didn't buy insurance (I currently am uninsured). Now, if I didn't have the money to either buy insurance or pay the fine -- or if I justly refused to pay the fine -- then what? Defenders of his plan have to agree that the government can then come and arrest and threaten to kill me in my own home, in front of my wife and children, because I don't want to buy insurance -- or because I can't. To support something like that is evil. Pure and simple.

RL writes:

Let me get this straight: "HHS said the government is concerned that the mailer "is misleading and confusing" partly because the company's lobbying campaign could be mistaken for an official communication about Medicare benefits."

And therefore: "HHS ordered the company to ...remove any related materials from its Web site"

And this is because Internet viewers frequently confuse the Humana website with the government's "official communication about Medicare benefits"?

burk writes:

Firstly, companies shouldn't have "free speech rights" in the first place. People should, not corporations. Corporations should have no right to displace citizens from the political process, period, and that means not misplacing their fiduciary and ethical duties to shareholders by joining political campaigns or corrupting government, etc.

Secondly, to Mr. Camplin, you may not understand the concepts of insurance and democracy. Democracy is not doing whatever you like, but being part of a larger community that creates certain duties as well as rights. Should you be forced to pay taxes? Should they be voluntary as well, so that you could opt out of being defended by the military and our diplomatic corps? Should Social security be optional, so that, were financial disaster to befall you in old age, you would be left at the roadside, sleeping under park benches?

And for health care, should insurance there be optional as well, so that, were you to choose to opt out and get a dire disease or injury, you would again be left in a ditch, bankrupted by the medical system and then discarded? Right now you rely on emergency room care that is open to all. However wealthy you may now be, that may change in a heartbeat, and then where would you turn? Just what kind of society do you want to live in?

RL writes:

"And for health care, should insurance there be optional as well, so that, were you to choose to opt out and get a dire disease or injury, you would again be left in a ditch, bankrupted by the medical system and then discarded?"

Burk raises good points. If you refuse to get fire insurance do we just let you live on the street? If you refuse to get life insurance, do we just let your widow and children flounder? If you refuse to get flood insurance, do we refuse to rebuild your home for you?

Absolutely, ALL insurance should be mandated, and to avoid the moral hazard problem, all insurance should be universal. "Ask not what your country can insure for you, but what you can insure for your country..."

Yours for a risk-free society,

RL

MBP writes:

Here's a link to the letter sent by HHS to Humana:

http://www.finance.senate.gov/press/Bpress/2009press/prb092109a.pdf

2RL

Why don't you for the sake of the argument apply your logic to abortion which I bet you are in favour of (disclaimer: I am pro-choice)?

By your logic, every woman should be prohibited from chosing an abortion, since otherwise no one will give birth to children, and the society will die out. That is how your tortured logic goes.

Not to mention that your logic may apply to every product or service that a politician may think has some sort of positive externality.

Urstoff writes:

What's the difference between a newspaper endorsing a candidate and a company endorsing a candidate/policy? Is it because you have to voluntarily buy (or read on line) a newspaper?

TomB writes:

What is interesting is that HHS asked Humana to stop because it is "potentially" contrary to regulations or law while HHS investigates. If Humana did not want to comply, it could sue for a declaratory judgment or an injunction against HHS. Guns never have to enter the picture. If Humana complied, I would suspect it is because their lawyers told them that HHS has a decent argument that the mailer did violate the law.

Perhaps a minimum level of certain types of insurance should be mandated (I would not support this), but quite plainly "all insurance" should not be mandated. Flood insurance? Hurricane insurance? What if you live in the Rocky Mountains? One size fits all policies rarely work.

RL writes:

Daniil, please re-read Burk's note, then mine, then go to Wikipedia, and read the section on reductio ad absurdum: http://en.wikipedia.org/wiki/Reductio_ad_absurdum

K Ashford writes:

Humana, as a corporate entity, has "freedom of speech" protections, but not as extensively as what you and I enjoy. Corporations, for example, can't engage in false and deceptive advertising. Just talk to the tobacco companies if you doubt me.

The HHS is well within its powers to look into this matter.

By the way, one commentor asks: "What's the difference between a newspaper endorsing a candidate and a company endorsing a candidate/policy? Is it because you have to voluntarily buy (or read on line) a newspaper?"

No, it's "freedom of the press".

TQ writes:

I'm confused by Burk's comments. Firstly, why shouldn't companies have free speech rights in the first place?

As for the second point, fine, companies ought not influence the political process. That then rules out any media outlets from influencing policy or elections. We also ought to outlaw extremely wealthy individuals from influencing politics. Likewise, unions, community activists organizations, lobbies, and anything consisting of more than one individual ought to be banned from any politicking.

As for the third point, I don't think Mr. Camplin ever invoked "democracy." His point is that all government invests government with the use of force to enforce rules. It hardly matters for his argument whether such government is majority rule, or totalitarianism--the effect is the same. As an aside, I'm not actually sure that a form of government wherein 51% of the populace can vote for a career politician to restrict my natural rights is something that is such a great idea. I rather enjoy going about my day making sure not to step on anyone's toes or property and not having some busybodies get involved in my life.

So following on, your point about democracy creating certain "duties," well, what you're really saying is that by the threat of force I am compelled to do things against my will for the greater good. In fact, all of my "duties" are completely voluntary. I can volunteer to give away my property in exchange for a protection racket and roads, but I also ought to be free to exchange my wealth to a private company that maintains roads and private security forces if I feel threatened in my community. I'm not really so big into the whole big government as mafioso arm twisting game.

As for your last question, Mr. Camplin, and all of us, yourself included, ought to be allowed to live in whatever society we choose. This, of course, was the original intent, so far as I can tell, of having an association of states with a very weak and underfunded federal government. Maybe Virginia wants to be run like a hive collective, with individual liberty sacrificed for the hive. And maybe Texas wants to be run as a minarchist state. And maybe Colorado wants to be run as a corporate welfare state. Maybe Nevada wants to be a dictatorship. These are extremes, of course, but the idea is to make governments compete for the sort of people that want to live under that set of rules. If they don't like them, they can move somewhere else. So perhaps you enjoy living in a state of compulsory "compassion," whereas I want to help the guy dying in the ditch because it is the right thing to do (but hey, that's a duty I give myself). What ought not happen is the one-size-fits-all federal government stifling innovation and experimentation in local governance and attempting the utterly impossible top-down-micromanagement of 300+ million individuals.

Troy Camplin writes:

Wow, Burk, you live in a pretty hateful society, where the only people you can count on to help are the police and bureaucrats. In the society I live in, there are all sort of generous people and organizations, ranging from my own family to churches. What country do you live in where all the elderly were lying in ditches before the government created social security, and the uninsured sick (as were everyone before insurance was created) were also lying in ditches, unhelped by anyone before, thankfully, such marvelous people as Congressmen and Senators, bureaucrats and policemen came along, lifted those poor, sad people up out of those ditches (must have taken them a long time!), washed them, put them on their feet, fed them, clothed them, and gave them the medical care they needed which nobody before them had ever done for them (nor had they done it for themselves). That must be a pretty awful society, full of people not even people in their awesome helplessness. I would invite you to come visit my society, where private individuals are able to work and feed themselves, provide for themselves and their loved ones, and give to each other. There is so much love and generosity over here, something I fear you must be unfamiliar with wherever you live, where the best you can hope for is that a bureaucrat will call your serial number after you've waited in the doctor's office for 12 hours after your 18 month wait to even get an appointment -- and if you do try to get better care by paying for it, you find yourself shot in the head after you resist arrest for having tried to better your life (which is, after all, illegal).

Democracy is not community. They two are utterly different. And a just democracy is not a majority forcing its will on everyone else, no matter what. That is mob rule. Nor is it a minority of government officials trying to force people to do what those officials think is "best" for them -- that is tyranny.

K Ashford writes:

Reply to TQ:

Firstly, why shouldn't companies have free speech rights in the first place?

Well, they are not people, first of all. The rights in the constitution inure to people.

Also, to the extent that corporations are comprised of people (i.e. etockholders), they can't claim to speak for ALL the people. (The same goes for unions as well).

As for your last question, Mr. Camplin, and all of us, yourself included, ought to be allowed to live in whatever society we choose. This, of course, was the original intent, so far as I can tell, of having an association of states with a very weak and underfunded federal government.

The United States I choose to live in doesn't fight any wars or have a post office. And has three day weekends.

The United States my wife chooses to live in forbids abortions and slaughtering of cows. And teaches the Bible in public schools.

I'm obviously being tongue-in-cheek, but you see my point? We can't function as a nation -- certainly not a world leader -- if we don't have ALL have to hold our nose and swallow hard.

In fact, the Articles of Confederation served as the first Constitution and was much like you describe -- loosely confederated states, except for matters military. Didn't work, with 13 states each developing their own foreign trade practices, etc. It got scrapped for what we now know as THE Constitution.

Chris Bolts Sr. writes:

"By your logic, every woman should be prohibited from chosing an abortion, since otherwise no one will give birth to children, and the society will die out. That is how your tortured logic goes."

Really? Tortured logic? Well, then I guess you'll tell China that it shouldn't have pursued its one child policy because that was "tortured logic".

william writes:

We live in a constitutional republic, not a democracy...Just wanted to clear that up for Burk.

"A constitutional republic is a state where the head of state and other officials are elected as representatives of the people, and must govern according to existing constitutional law that limits the government's power over citizens."

"John Adams defined a constitutional republic as "a government of laws, and not of men." Constitutional republics are a deliberate attempt to diminish the perceived threat of majoritarianism, thereby protecting dissenting individuals and minority groups from the "tyranny of the majority" by placing checks on the power of the majority of the population. The power of the majority of the people is checked by limiting that power to electing representatives who are required to legislate with limits of overarching constitutional law which a simple majority cannot modify."

Patrick R. Sullivan writes:
Well, they are not people, first of all. The rights in the constitution inure to people.

Not according to the First Amendment. It merely says, 'Congress shall make no law...abridging the freedom of speech or the press....'

Even guaranteeing the freedom of, 'the people peaceably to assemble....'

In my experience articles of incorporation are usually pretty peaceable.

And, Daniel G, regarding RL; that was a joke , son.

Daniil Gorbatenko writes:

2RL,

Sorry, I thought you were serious.

Fen writes:

No, it's "freedom of the press".

But the "press" is owned by companies. So...

Mr. Stevenson writes:

I'm confused about the comment by Mr. Burke:

"Firstly, companies shouldn't have 'free speech rights' in the first place. People should, not corporations. "

I cannot remember the last time I heard a "company" use it's vocal chords to speak, so I don't see the point of your remark. I am familiar with individual human beings speaking, and sometimes representing a group, be it in the form of a company, sports team, book club, government bureaucracy, etc. Are you suggesting that an individual may speak his or her mind, unless they associate themselves with some kind of group? Perhaps then, the President of the United States should have no right to speech because he is representing the most powerful and influential "company" in the world?

It seems I'm not the only person reading through these comments that questions your grasp on the nature of rights. Perhaps the New York Times has no right to publish anything, since, after all, they are individuals speaking their opinions "as a company".

I think it much more likely that only those who you feel disagree with your political ideology should be stripped of their right to speech, especially if their voice is "louder" than your own.

El Presidente writes:

Has anybody here ever heard of a cease and desist letter? I must live in a rarified environment because I have. Basically, the letter is saying, "You're digging a hole for yourself, you are breaking the law already, and you might want to stop digging before you make the hole any deeper." In other words, "Stop it, stupid." It doesn't remove or circumvent their right to due process. I don't understand why complying with existing law seems like such a hardship. Can you tell us, David?

Is the government breaking the law (statutes and regulations) or violating the Constitution? Is the law unconstitutional? Do you suggest changing the law, the Constitution, both? Your argument doesn't seem to commit to any of these propositions, in the same manner your argument about the FDA settlement with Pfizer for marketing unapproved therapies claimed to be philosophical while simultaneously making a constitutional argument as though they were perfectly interchangeable. I want to hear your argument and think, "You know, David has a point there." However, I can't help thinking this is a philosophical argument ignorant of, dismissive of, or having no relationship to the law, and as such misses the mark when discussing legal matters.

If Humana was an individual, not a business, and had a problem with a proposed government policy, I would be willing to expend quite a bit more than a stamp and an envelope to defend their right to speak their mind. But, what the hell, I'll defend Humana's 'right' to tell the truth. Do you suppose they'll be doing that anytime soon? Your appeal to defend their right to speak without regard to the content of their statements is like asking us to defend a person's right to perjure themselves or commit libel. It is nonsensical. Nobody has a 'right' to break the law. Are you suggesting that they are engaging in civil disobedience as a matter of conscience (that's rich)? I may think that people who show up at rallies calling a black president a Nazi or carrying loaded assault weapons where there is no perceivable physical threat should behave differently because I am embarrassed for them. I never once said they shouldn't have the right to be morons. They have that right, God bless 'em. Of course, they aren't trying to secure billions of dollars of future income from the government by scaring and provoking old people. It's a little bit different.

RL writes:

2 Daniil G: It is a sad fact that we increasingly live in a society where the strength of a reductio argument is lessened by the fact that fewer and fewer political opinions seem absurd on their face...

:-)

Paul Zrimsek writes:

If the government's so concerned about mailings that "could be mistaken for an official communication", how come I'm still getting a half-dozen pieces of junk mail a week disguised as IRS correspondence?

Paul Zrimsek writes:

I can at least imagine being in favor of silencing corporate political speech tout court, even if I don't agree. What I can't imagine is being in favor of non-content-neutral silencing of some corporate political speech at the discretion of the Executive Branch.

Yancey Ward writes:

There is absolutely nothing misleading in that mailer. At no time does Humana blur the distinction between its programs and Medicare, and it is an absolute truth that the proposals being considered will affect Medicare Advantage. Indeed, this is one of the few concrete proposals to "save" money in Medicare.

What is particularly galling here is that the administration had absolutely no problem having the insurance company executives lined up behind President Obama for photo ops and pledges to find savings in health insurance, nor have they had problems with other corporations using money to support "reform". The administration likes and supports the free speech as long as it is the right tune.

K Ashford

"Firstly, why shouldn't companies have free speech rights in the first place?

Well, they are not people, first of all. The rights in the constitution inure to people."

That does not mean they do not also apply to companies or other legal entities. It just means that such rights are not guaranteed by your Constitution to those entities. I would still argue that as far as possible, and as far as allows honest interaction with others, the right to freedom of speech should still apply. You have not said why it should not, and freedom should only be limited with good reason.

El Presidente writes:

Yancey Ward,

At no time does Humana blur the distinction between its programs and Medicare, and it is an absolute truth that the proposals being considered will affect Medicare Advantage.

Yeah, sort of. Except that they are intimating a causal nexus between the elimination of Medicare Advantage and the elimination of healthcare services for individuals. The company is intentionally leading seniors to believe that their healthcare is _necessarily_ tied to the profits of Humana, that is, to Medicare Advantage when it isn't. That's not an absolute truth.

Whitehall writes:

I've read the flyer and agree with Mr. Ward - this is legal communications between a company and its customers.

This is just more Storm Trooper action from the Administration. These folks are going WAY too far for my comfort.

It underscores the seriousness of the 2010 Congressional elections. A House in conservative hands can defund the czars and the fear of the electorate in Obama's political appointees.

johnny writes:

I note that "Burk" is following the "Corporations don't have free speech rights" meme that is the latest grasp at straws from the liberal left used to stifle dissent. (3rd post from Top.)

I say: If you don't want to give corporations rights, then don't tax them.

Too often the left views corporations as a convenient enemy and piggy bank to draw from for whatever they have deemed a "right" this week.

Steve Malynn writes:

Unfortunately regulatory agencies have and abuse their power to shut up corporations regularly.

For those of us not governed by an unelected regulator, before the government could demand you stop your commercial speach, they would have to have actual evidence that the offending message was more likely than not to materially confuse the intended recipient of the message. That typically requires actual evidence of a confused consumer - usually survey evidence of some sort that the intended recipients would be more likely than not be confused.

Within a regulated industry, which insurance is dramatically regulated by state and federal governments, the regulator gets to dispense with the evidentiary requirements. The unfortunate reality is the corporation is guilty until proven innocent - and it usually takes an appeal to a court to overturn the administrative decision. This is a lengthy and costly exercise - one that no company willingly undergoes.

In this instance what will next happen, (step 1) the investigator will demand concessions and an admission of guilt - if that is not forthcoming, at the whim of the investigator the next demand (step 2) will be a complaint to the administrative forum - in this case, an Administrative Law Judge working in the HHS, but ominally "independent".

The ALJ will rubber-stamp the investigator, but in order to prevail down the road the company must go through the litigation process - there is no other opportunity to present evidence and all further appeals will be based on the record put before the ALJ. The ALJ will assess the punishment.

After the ALJ rules, (step 3) the first appeal with be to the Directory of HHS, if you have made a good record the Regulator will offer to settle the matter - in effect allow you to cut your losses, but accept some smaller form of punishment.

If the Company has guts, it will then spend the legal fees to litigate a fourth time (step 4) in front of a real judge. Fortunately this 4th step will be in front of an independent judge, unfortunately the record will be frozen and evidentiary rulings that went against you below will stick. The benefit of going all the way if the regulator did not provide evidence that consumers would acutally be confused, the company has a chance of prevailing in a real court.

The problem is this process is 4 times as expensive as it needs to be - and so only the largest companies have the wherewithal to actually fight. I have had the displeasure of being told by a regulator, "I know we are violating your client's rights, but prove it." (This was a state insurance investigator, who's boss had intervened to negate a deal we already had in writing from the state, because the boss wanted my client's scalp.)

In their arena's the regulators are dictators.

saki writes:

I believe that freedom of the press has to do with the written word and not to corporations we now call, "The Press." The idea that these corporations should have more rights than others is ridiculous

Yancey Ward writes:

El Presidente,

I just reread the mailer. It didn't do what you claimed. What part, exactly wasn't true?

Charlie writes:

This makes me proud that I am a Humana client!

Screw the fed, and the horse they rode in on.

Charlie

El Presidente writes:

Yancey Ward,

While these programs need to be made more efficient, if the proposed funding cut levels become law, millions of seniors and disabled individuals could lose many of the important benefits and services that make Medicare Advantage health plans so
valuable.

How do you read that? To me, it says that Humana wants their Medicare Advantage patients to believe their coverage ("benefits and services") will be materially altered in a negative way if Medicare Advantage is eliminated (the "proposed funding cut levels"). Is that how you understand it? If not, please show me my error.

What it doesn't say is that these same services are supposed to be subsumed in Medicare, as they were before Medicare Advantage was created, and that Humana will lose their revenue and rents if the program is changed as proposed. People were able to get the same benefits before (the ones listed in bullet points on the mailer), and they'll be able to get the same benefits after Humana's rents are cut off. It misstates the material effect of the proposed change in policy in order to motivate seniors to complain to their representatives and demand specific action that will result in the maintenance of government funding for Humana. I don't know how many other ways I can say it.

Jake Syma writes:

K Ashford, I have several questions for you:

Is the "freedom of the press" only for those who own a press (i.e. a print newspaper)?

A newspaper (e.g. NYT) is a company; Humana is a company. Does Humana not have any "freedom of the press"?

What about me? Do you think I am entitled to any of this "freedom of the press"?

Do you think it wise that you (and/or the gov't) narrowly interpret our First Amendment freedoms?

Yancey Ward writes:

El Presidente,

Then, I think you are somewhat misreading it. I am sure some of the additional services will be subsumed as the patients return to Medicare proper, but it is also certainly true that not all of them will be. It might even turn out to be true that most of the patients (including those that never left) would be better off, overall, under the reformed Medicare, but the mailer is correct- reduced payments will alter the service received. This is true if it is Humana, and it would be true if this plan were Blue Cross.

Jake Syma writes:

El Presidente, in your first couple of paragraphs you lament things "having no relationship to the law," and therefore "miss[ing] the mark when discussing legal matters."

Yet in your next paragraph you talk about people "who show up at rallies... carrying loaded assault weapons." For whatever it may or may not be worth [to you], ever since the 2004 sunset of the [federal] ban on so-called "assault weapons," there are no longer any such things as "assault weapons" under the law in most U.S. states. I would wager this applies to most (if not all) of the states in question where people showed up at rallies... carrying rifles.

In short, just because something may still be considered an "assault weapon" under California, New York, or Massachussetts law, does *not* make it an "assault weapon" under New Hampshire, Vermont, or [thank goodness] Texas law.

The same rationale that has long led me to support the rights of Black Panthers who peaceably assemble and protest carrying 'long guns' (rifles and shotguns) also leads me to support the rights of these folks whom you so easily disparage.

Don L writes:

"Update: Let's Give them a Fair Trial and then Hang Them"

Wasn't it Lincoln's Secretary of War that said he wanted to his assassination conspiritors in the ground in 3 days?

Frankly if Obama is allowed the freedom to call out his union goon squads to threaten scared old folks and lie flagrantly to the American people about Obamacare, I want to hear the other side and I do give a hoot about the same pro-Obamacare cronnies using the default threat to the insurance co. The ins companies don't own the power and their words can't be mandated, but Obama's can.

Is this still America or Obamica?

Don L writes:

Regarding freedom of the press bbeing limited for a company. Isn't the New York Times a company?

After the visible nuptuals between Obama and the government run MSM, I'm all for a reduction to a constitutionally limited protection with civil suits against a media that deliberately, and with malice, lies.

SteveS writes:

@ el Presidente,

Doesn't a cease and desist letter require that rights under "due process" be observed?

It is remarkable that other commentators cannot see the dangers associated with according rights to "media" organizations related to free speech that they would deny other corporations. Maybe Humana should create a media organization called Humana News and communicate with their customers through that outlet.

@ Burks comment: "Corporations should have no right to displace citizens from the political process, period, and that means not misplacing their fiduciary and ethical duties to shareholders by joining political campaigns or corrupting government, etc." = Stupidest comment ever. While you're here on the Library of Economics and Liberty website why don't you mosey on over to the encyclopedia and read the entry on Public Choice.

Steve

J. M. Cornwell writes:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I see nothing in the First Amendment that says anything about the freedom of speech being denied to groups, corporations, companies or business entities made up of individuals. Companies and corporations are made up of people and free speech is granted unreservedly and unconditionally to all. The First Amendment also does not say anything about whether or not that information must be truthful, correct, accurate or honest, and just grants freedom of speech.

Our forefathers weren't entirely truthful in what they said in speeches and pamphlets when they were fighting for the right to break away from England. They often inflated, conflated and slanted the facts, as history books continue to do. Whether or not the facts are true in what Humana is sending out to people is an issue for a court of law and anything that impedes their right to speak out, whether in speeches, ads or in writing, is contrary to the First Amendment. The government must either bring the issue to court or contact people and tell their side of the issue without thuggery or strong arm tactics or shut up. Just because they are part of the government does not give them the right to contravene the laws or the Constitution and doing so is in direct violation of Humana's Constitutional and civil rights. That is the issue.

Jake Syma writes:

saki, "freedom of the press" is not *just* for the written word (e.g. television news programs such as can be found on ABC, NBC, CBS, CNN, Fox News, PBS).

That said, since you seem to have already conceded the written word, in what form did Humana's communications manifest?


(or did I misunderstand your post? my apologies if this is indeed the case.)

Goldbrick writes:

What if Humana started printing a newspaper?

Humana Times

john hosemann writes:

the very fact that humana has been told by the government to shut up talking to its customers is totally consistent with everything else this administration is doing...demonizing those who ask/raise questions about any policy...avoid a frank response to any inquiry with facts and argument and go after the messenger...this is a major reason 2 mil plus citizens took to the capitol to protest with more to come...all of the above blog contributors need to read saul alinsky's 'rules for radicals' if you want to know what is really driving obamma and his henchmen...it would cut down on blog space for arguing over meaningless trivia once one understands the real dirty chicago politics now emanating from washington...and moscow

Burk writes:

Dear Mr. Stevenson:

I actually agree with your formal analysis- freedom of association implies free speech for groups as well as for individuals. So I have to make my point on other, less simple grounds. Perhaps what we have here is an agency problem, where corporations are founded for one purpose (making money with limited liability), and then delve other functions that are not strictly related to the original purpose (pushing the political opinions of upper management).

Even if you can make the (rather tenuous) case that the political activities of managements are automatically beneficial to their shareholders in monetary terms as per their ownership/employment contract, there remains the nature of the corporate association, which is founded as a legal entity with restricted rights and duties from the state. Its charter is quite unlike those of civic associations and non-profits, and thus is already something other than a completely "free" association.

I am far from versed in this type of law, but this distinction shows that society can and does make rules for corporations as it sees fit to further the general good, whether it is to enforce reporting standards (freedom to lie?) or restrict use of funds for bribing foreign governments, etc. These are not "free" associations, for the reason that their control of vast sums of money presents special opportunities and dangers. One of the dangers is obviously that of waylaying the public discourse for various reasons not related to citizenship, but quite closely related to their roles as officers of a corporate enterprise whose statutory reason for existence is to make money, not engage in politics.

If money can be made by fooling the populace about various public policy issues, or by corrupting public officials and the political process more generally by using the vast sums at the disposal of these organizations, then that is a problem in the democratic capitalist system, not a benefit. If democracy then becomes the contest between megacorp A and collossocorp B (as is has in the California initiative process, for instance), we have lost a precious heritage. I guess what I would say is that corporations are under special rules of various sorts, and these rules should be extended to restrict their participation in politics, to keep the political system more like a democracy than an oligarchy. Same goes for unions, of course.

Granite26 writes:

I agree with the point in general and it scares the crap out of me.

OTOH, I don't see a problem with Please be advised that we take this matter very seriously and, based upon the findings of our investigation, will pursue compliance and enforcement actions.... It seems to me she's saying 'Based on what we think we can get away with, we'll hit you with everything we think might stick', which is inappropriate but not implying a forgone conclusion of (court of law) guilt.

SteveS writes:

@ Burk,

You seem to suggest that the charter of corporations justifies the restrictions of their free speech. I have a better idea. Why don't we let corporation's media officers, marketing officers, and spokespersons communicate with its customers, release press releases, make public statements, assert opinions (as the CEO of Whole Foods did a couple of months ago on the pages of the WSJ) and generally engage the public and their customers? Let these communications compete in the marketplace of ideas and let dissenting competitive voices indicate how they are wrong or biased or detrimental to the "common good" without the threat of arrest.

As long as we have a large, intrusive government, corporations and other organized groups will find a way to lobby the government and influence the body politic to advance their own self interest. The only way to diminish the influence of corporate interests in politics (which I agree is a worthy goal) is to diminish the size and scope of government.

SteveS

James Oaksun writes:

What of the argument my liberal friends are making, i.e., Humana is a government contractor, therefore they have no right to criticize anything the government does; i.e., if they don't like it they don't have to be a contractor any more.

Jake Syma writes:

Whitehall, a "House in conservative hands" might defund THESE czars (that is, the new ones President Obama has created), but do you really think they'd defund the ones they've supported (that is, funded) throughout the years *prior* to President Obama taking office?

Do they object to the very concept of unelected czars (and central planning), in general, or do they only object to "these czars"?

El Presidente writes:

J. M. Cornwell,

The First Amendment is part of the Constitution. It does not represent the entirety of our system of laws. What about slander, libel, fraud, false advertising, making false statements to police officers, conspiracy, espionage, yelling "fire" in a crowded theater, or assault? Those are all literally forms of speech. Do laws against them violate the First Amendment or any other part of the Constitution? As a matter of law, your argument is just plain wrong (the nicest words I could find), and David's silence is disappointing though not entirely surprising.

Jake Syma writes:

Burk, you are pretty much spot-on in your assessment of what is going on here. We participants are debating in circles; that is, in two separate spheres (similar to the "is-ought problem" in philosophy).

Anyhow, later in your post you state:

"These are not 'free' associations, for the reason that their control of vast sums of money presents special opportunities and dangers."

Do these "special opportunities and dangers" not also apply to individuals that are in control of "vast sums of money"?

You then later state:

"If democracy then becomes the contest between megacorp A and collossocorp B (as is has in the California initiative process, for instance), we have lost a precious heritage."

Is this a natural duopoly, or has government sanctioned/created it (intentionally or otherwise)? Might government not ought (notice the 'ought') to "do something" in this realm before "doing something" in the realm some here are advocating (speech, press)?

SteveS writes:

@el presidente,

I doubt that conspiracy or espionage are "literally forms of speech" other than that they frequently, but not always, require speech in order to engage in them. So does pre-meditated murder. Assault is clearly not a form of speech in any normal or legal sense of the word.

No one here has argued that all speech at all times is protected. Libel and slander are usually handled in the civil courts and are not, "as a matter of law", criminal acts in most states.

Most people would agree that the type of speech that we ought to be most vigilant in protecting is political speech. The Humana letter is clearly political speech.

SteveS

El Presidente writes:

SteveS,

You may doubt, but that's only because you don't know. Let me substitute certainty for your doubt if you would kindly surrender it.

Libel and slander ARE criminal offenses. They are _also_ torts (civil offenses). About half of the states have no criminal libel statutes but many of them have substituted criminal defamation statutes. These statutes make speech alone a crime. You haven't made any progress on this point.

Conspiracy is a plan to commit a crime between two or more individuals with an act toward completion. How can you have a plan between two people without speech? The act toward completion is not necessarily criminal except with respect to the plan. The speech makes otherwise legal behavior criminal.

Espionage is transmitting information relating to national defense with the intent that or with reason to believe that the information will be used to the injury of one's own nation or the advantage of a foreign nation. Again, almost entirely speech.

Assault is a threat or attempt to inflict bodily injury upon another. Threats are predominantly verbal (i.e. speech). You don't even have to fake a punch if you can convince the other person you are serious about your threat. The speech alone is sufficient to make this behavior criminal.

These are legal definitions. I didn't make them up.

You say:

No one here has argued that all speech at all times is protected.

But J.M. Cornwell says:

The First Amendment also does not say anything about whether or not that information must be truthful, correct, accurate or honest, and just grants freedom of speech.

So, either you didn't read his remark or he didn't just say what I think he said. Maybe you two should have a sidebar and work it out.

The point of the cease and desist letter was to let Humana know that they violated the law and that they should stop immediately. The Obama administration did not make these laws. Not a single person here has cited portions of the Medicare Advantage, Medicare Part D, or HIPAA statutes to demonstrate how HHS has overstepped its bounds. This has gone far beyond idles speculation about whether or not HHS might have oversteeped their bounds. This is the sort of nonsense that allows people to stoke anger over a nonissue in order to bolster support for their preordained dogma. It's sick. It's not respectable. It's intellectually dishonest. Those who engage in it should value their own integrity enough to admit it and change their behavior. The rest of us should be willing to say so in order to hold them accountable.

William Kostric, the yahoo that brought a holstered pistol to an Obama speech holding a sign alluding to the words of Thomas Jefferson, doesn't even realize the irony propounded by the quote he alluded to. It reads:

The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is it’s natural manure.

Earlier in the same letter to William Stephens Smith (Paris. Nov 13, 1787 - look it up in the library on this site), Jefferson writes:

God forbid we should ever be 20 years without such a rebellion. The people cannot be all, & always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty [. . .] The remedy is to set them right as to facts, pardon & pacify them.

He isn't saying he values guns, he's saying he values vigor and he will permit guns if they are necessary to maintain vigor. But the point is to get and disseminate the information that will pacify and reassure people that nothing amiss is afoot, not to engage in or invite wanton violence or needless threats. This is foresight to deal with intermittent bouts of prevalent ignorance. Does any of this sound prescient to you? So the guy with the gun was basically saying, "I'm ignorant and armed" and yet was also insisting that he knew what his government was up to and didn't like it one bit, and alluded to Jefferson for moral support. At this point, you should either be laughing or crying. I don't suppose he ever read and understood that single letter even once.

Ron White says you can't fix stupid. I hope he's wrong because there seems to be a whole lot of stupid out there.

El Presidente writes:

[Two comments removed from this thread. --Econlib Ed.]

Jake Syma writes:

"You won't even find the evidence of the comment that was summarily disallowed; the one that responded directly to Yancey Ward, Jake Syma and SteveS."

El Presidente, I'm not sure how much currency my want to see your response carries, as I am a long-time reader but only a first-time (-topic) poster...

My email address follows the "firstname.lastname@servername.com" convention, and the server name is Gmail, if you would like to continue our exchange in that medium.

SteveS writes:

@el presidente,

Bold "certainty" does not make something true.

Your statement:

"The point of the cease and desist letter was to let Humana know that they violated the law and that they should stop immediately."

Your certainty here is disturbing. What law did they break? Chapter and verse please. And even if you can produce some statute that you believe was violated by this letter, wouldn't some sort of "due process" need to be followed to determine guilt? Are you at least willing to acknowledge that the government's actions here were ham-fisted and will have a chilling effect on political speech?

Steve

Steve R writes:

Burk makes the argument against any government involvement in health care by his statement "Right now you rely on emergency room care that is open to all." Government begets govenment. Social programs beget social programs. The gov exists for itself, not us.

So, since government has decided to give free healthcare in the form of emergency care, can they not use that as an argument (as you just did) to force us to pay (and pay we will) additional taxes for complete care?

Why not force a tax on soda? Tax on fatty/greasy foods? A salt tax? Force you to pay more if you aren't active enough? If your BMI does not conform to a randomly generated chart? Or, any number of other factors that become popular?

The fact that Humana wants to inform their customers about the concerns and they get threatened, also shows what dangers await in gov regulation.

Government: "Ooh, I'm sorry. We have regulations and we can't have people talking about things we don't want them to or that will put our next great expense in danger. You wouldn't want to put your billion dollar company and all of the employess on the line would you? Not to mention the personal liability and jail time that we will most certainly dish out. The press will see to it that none of the opposing views like yours have the the public support. Your move...call our bluff."

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