Opponents of health reform have added a new trick to their bag of fear-tactics: pretend that the White House is violating the First Amendment. After the White House sent an e-mail to the President’s supporters asking them to pass along right-wing e-mail forwards that make false claims about health reform — so that the White House can set up a fightthesmears.com-style response to these claims — Senator John Cornyn (R-TX) sent a breathless letter to the President accusing him of violating “the First Amendment and America’s tradition of free speech and public discourse.” By the end of the day, right-wing media exploded with claims that President Obama launched this plan to gather the names of the President’s opponents; former Speaker Newt Gingrich even compared the White House’s fight-the-smears strategy to the Alien and Sedition Acts.
By Thursday afternoon, Fox News even invented a made-up case saying that the President’s actions are unconstitutional:
It’s absolutely unconstitutional, I mean, the Supreme Court has ruled directly on point. When Richard Nixon was worried about anti-war protestors during the Vietnam era, he sent FBI agents undercover—CIA agents undercover—which was against the law for them to be operating in the US. And military in civilian garb to take photographs and to use tape recorders to record the voice, and they sued; it’s a very famous case. And the Supreme Court said . . . . the government is prohibited from intimidating people from exercising free speech, and recording their names or their voices, or asking people to spy on them would be exactly the intimidation the Supreme Court condemned.
We are unable to find a single Supreme Court case fitting this description, and several legal scholars whom the Wonk Room contacted were unable to identify such a case. Although there is one Nixon-era precedent dealing with soldiers spying on left-leaning organizations, that case did not say what Fox says that it said.
In Laird v. Tatum, the plaintiff challenged the Army’s practice of sending undercover intelligence agents to attend meetings that were open to the public, and gather information such as the names of the speakers and the number of attendees. The justices, however, never even reached the merits of the case because the plaintiff never showed that “he has sustained or is immediately in danger of sustaining a direct injury as the result of” the Army’s program.
So President Obama’s fight-the-smears campaign is all kinds of illegal, just so long as you live in the Neighborhood of Make Believe. Maybe next week, Fox and Senator Cornyn will claim that health care reform will drive up costs for unicorns and goblins.