In this case -- Citizens United v. FEC -- a 5-4 Supreme Court ruled against the administration, which sought to enforce a rule that said a corporation could not sell a pay-per-view movie to a cable television customer if the movie mentioned a candidate in an election season.
"The government urges us in this case to uphold a direct prohibition on political speech," Chief Justice John Roberts correctly observed in his concurring opinion in the case.
On Tuesday, led by Obama-appointed Chairman Julius Genachowski, the Federal Communications Commission for the first time issued regulations that would arrogate to the FCC the authority to regulate Internet traffic. The regulations come as wolves in sheeps' clothing, purporting to protect consumers from big businesses that would restrict their access to the web.
But there are two problems with what the FCC is doing: Congress has never given it authority to regulate Internet traffic, and if it is allowed to usurp that authority it will eventually use it to restrict freedom of speech.
When Congress created the Federal Radio Commission in 1927, then converted it into the Federal Communications Commission in 1934, it expressly denied this agency the authority to control speech on the radio.
Henry Bellows, one of the original FRC commissioners, accurately explained its authority in a speech to the League of Women Voters in the year the agency was born.
"Very rightly, Congress has held that the broadcaster shall not be subject to governmental dictation as to the character of the material he sends out, the Federal Radio Commission under present law cannot and will not interfere with any broadcaster's right to control and censor his own programs," said Bellows.
"In that matter, his relations are not with the government, not with the commission, but with you," said Bellows. "It is for you, the listeners, not for us, to censor his programs. It is for you to tell him when he is rendering, or failing to render, real service to the public, and you may be sure that he will listen to your voices."
Thirteen years later, in 1940, in reviewing the broadcast license of the Yankee Network for the Massachusetts radio station WAAB, the FCC ruled that radio stations were forbidden from advocating.
"A truly free radio cannot be used to advocate the causes of the licensee," said the FCC in that case. "It cannot be used to support the candidacies of his friends. It cannot be devoted to the support of principles he happens to regard most favorably. In brief, the broadcaster cannot be an advocate."
What happened between 1927 and 1940? Did Congress increase the authority of federal radio commissioners? No. An all-Democratic government had come into power and had held it for eight years. 1940 was yet another election year, and freedom of speech was not a priority for the incumbent party.
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