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Judge Andrew P. Napolitano: Can Congress Ban TikTok?

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From Heartland Daily News

By Judge Andrew P. Napolitano

“Congress shall make no law … abridging the freedom of speech.”
         –First Amendment to the U.S. Constitution

When James Madison set about to draft the Bill of Rights — the first 10 amendments to the U.S. Constitution — he was articulating what lawyers and philosophers and judges call “negative rights.” A positive right grants a privilege, like a driver’s license. A negative right restrains the government from interfering with a preexisting right. In order to emphasize his view that the freedom of speech preexisted the government, Madison insisted that the word “the” precede “freedom of speech” in the First Amendment.

If the freedom of speech preceded the government, where did it come from?

Speech is a natural right; it comes from our humanity. The framers of the Constitution and the ratifiers of the Bill of Rights understood and recognized this. Congress doesn’t grant the freedom of speech; rather it is prohibited absolutely from interfering with it. In the years following the ratification of the 14th Amendment, the courts began applying the restrictions in the First Amendment to the states and their municipalities and subdivisions.

Today, the First Amendment bars all government — federal, state and local — and all branches of government — legislative, executive and judicial — from interfering with the freedom of speech.

You’d never know this listening to Congress today. The same Congress that can’t balance a budget or count the number of foreign military bases the feds own, that thinks it can right any wrong and tax any event, that has borrowed over $34 trillion and not paid back any of it; the same Congress now wants to give the President of the United States — whomever might occupy that office — the lawful power to suppress websites he thinks are spying on their users or permitting foreign governments to influence what folks see on the sites. All this is an effort to ban the popular website for young folks called TikTok and force its owners to sell its assets.

Here is the backstory.

Throughout American history, we have suffered from mass fears. In the 1790s, it was fear of the French and of Native Americans. In the 1860s, it was fear of African Americans and fear of Confederates. In the 1900s, it was fear of anarchists, Nazis and Communists. In the first quarter of the present century, the government has whipped up fear of terrorists, Russians, Saddam Hussein, Vladimir Putin and now the Chinese.

In his dystopian novel, “1984,” George Orwell analyzed the totalitarian mind and recognized the need that totalitarians have for fear and hatred. They know that when folks are afraid, they will bargain away the reality of liberty for the illusion of safety. Without fear and hatred, totalitarians have fewer tools for control of the population.

What is the government’s problem with TikTok? The feds want to use fear and hatred of the Chinese government in order to regulate the sources of data and information that Americans can consult. They have projected upon the government of China the very same unlawful and unconstitutional assaults on natural rights that the feds themselves perpetrate upon us.

Thus, in order to gain control over the American public, the deep state — the parts of the government that do not change, no matter which political party is in power — and its friends in Congress have advanced the myth that the Chinese government, which commands the loyalty of the owners of TikTok, might use the site to pass along misinformation or to spy on its users. The key word here is “might,” as the intelligence officials who testified to Congress on this were unable to produce any solid evidence — just fear — that the Chinese government is doing this.

You can’t make this up.

Remember the bumper stickers from the 1970s: “Don’t steal. The government hates competition!” I thought of that line when analyzing this. Why? Because the federal government itself spies on every American who uses a computer or mobile device. The federal government itself captures every keystroke touched on every device in the U.S. The federal government itself captures all data transmitted into, out of and within the U.S. on fiber-optic cables. And the federal government itself told the Supreme Court earlier this week that it needs to be able to influence what data is available on websites in order to combat misinformation.

The federal government basically told the court that it — and not individual persons — should decide what we can read and from what sources. What the federal government did not reveal is its rapacious desire to control the free market in ideas.

Now back to the First Amendment.

The principal value underlying the freedom of speech is free will. We all have free will to think as we wish, to say what we think, to read what we want, to publish what we say. And we can do all this with perfect freedom. We don’t need a government permission slip. The whole purpose of the First Amendment is to guarantee this freedom by keeping the government out of the business of speech — totally and completely. This is the law of the land in modern Supreme Court jurisprudence.

Were this not the law, then the government could suppress the speech it hates and fears and support the speech of its patrons. And then the values that underly the First Amendment would be degraded and negated. The government has no moral or constitutional authority to spy on us or to influence our thoughts. Period.

Does the government work for us or do we work for the government? Have we consented to a nullification of free speech in deference to whomever might be living in the White House? Why do we repose the Constitution into the hands of those who subvert it?

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
COPYRIGHT 2024 ANDREW P. NAPOLITANO

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B.C. premier wants a private pipeline—here’s how you make that happen

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From the Fraser Institute

By Julio Mejía and Elmira Aliakbari

At the federal level, the Carney government should scrap several Trudeau-era policies including Bill C-69 (which introduced vague criteria into energy project assessments including the effects on the “intersection of sex and gender with other identity factors”)

The Eby government has left the door (slightly) open to Alberta’s proposed pipeline to the British Columbia’s northern coast. Premier David Eby said he isn’t opposed to a new pipeline that would expand access to Asian markets—but he does not want government to pay for it. That’s a fair condition. But to attract private investment for pipelines and other projects, both the Eby government and the Carney government must reform the regulatory environment.

First, some background.

Trump’s tariffs against Canadian products underscore the risks of heavily relying on the United States as the primary destination for our oil and gas—Canada’s main exports. In 2024, nearly 96 per cent of oil exports and virtually all natural gas exports went to our southern neighbour. Clearly, Canada must diversify our energy export markets. Expanded pipelines to transport oil and gas, mostly produced in the Prairies, to coastal terminals would allow Canada’s energy sector to find new customers in Asia and Europe and become less reliant on the U.S. In fact, following the completion of the Trans Mountain Pipeline expansion between Alberta and B.C. in May 2024, exports to non-U.S. destinations increased by almost 60 per cent.

However, Canada’s uncompetitive regulatory environment continues to create uncertainty and deter investment in the energy sector. According to a 2023 survey of oil and gas investors, 68 per cent of respondents said uncertainty over environmental regulations deters investment in Canada compared to only 41 per cent of respondents for the U.S. And 59 per cent said the cost of regulatory compliance deters investment compared to 42 per cent in the U.S.

When looking at B.C. specifically, investor perceptions are even worse. Nearly 93 per cent of respondents for the province said uncertainty over environmental regulations deters investment while 92 per cent of respondents said uncertainty over protected lands deters investment. Among all Canadian jurisdictions included in the survey, investors said B.C. has the greatest barriers to investment.

How can policymakers help make B.C. more attractive to investment?

At the federal level, the Carney government should scrap several Trudeau-era policies including Bill C-69 (which introduced vague criteria into energy project assessments including the effects on the “intersection of sex and gender with other identity factors”), Bill C-48 (which effectively banned large oil tankers off B.C.’s northern coast, limiting access to Asian markets), and the proposed cap on greenhouse gas (GHG) emissions in the oil and gas sector (which will likely lead to a reduction in oil and gas production, decreasing the need for new infrastructure and, in turn, deterring investment in the energy sector).

At the provincial level, the Eby government should abandon its latest GHG reduction targets, which discourage investment in the energy sector. Indeed, in 2023 provincial regulators rejected a proposal from FortisBC, the province’s main natural gas provider, because it did not align with the Eby government’s emission-reduction targets.

Premier Eby is right—private investment should develop energy infrastructure. But to attract that investment, the province must have clear, predictable and competitive regulations, which balance environmental protection with the need for investment, jobs and widespread prosperity. To make B.C. and Canada a more appealing destination for investment, both federal and provincial governments must remove the regulatory barriers that keep capital away.

Julio Mejía

Policy Analyst

Elmira Aliakbari

Director, Natural Resource Studies, Fraser Institute
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Carney’s new agenda faces old Canadian problems

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From the Fraser Institute

By John Ibbitson

In his June speech announcing a major buildup of Canada’s military, Prime Minister Mark Carney repeated his belief that this country faces a “hinge moment” of the sort the allied countries confronted after the Second World War.

A better comparison might be with the beginning of the war itself.

Then, the Allies found themselves at war with an autocratic state bent on their defeat and possible destruction. Now, Carney faces an antagonistic American president bent on annexing Canada through economic warfare.

Then, Canada rose to the challenge, creating the world’s third-largest navy and landing an army at Normandy on D-Day. Now, Carney has announced the most aggressive reorienting of Canada’s economic, foreign and defence policies in generations.

Polls show strong support among Canadians for this new agenda. But the old Canada is still there. It will fight back. It may yet win.

The situation certainly would have been more encouraging had Carney not inherited Justin Trudeau’s legacy of severe economic and environmental restrictions—picking economic winners and losers rather than letting the market decide—and chronic deficits. The new prime minister would do well to dismantle as much of that legacy as he can.

Some advocate a return to the more laissez-faire approach of Stephen Harper’s government. But Harper didn’t confront a belligerent president hoping to annex Canada through the “economic force” of tariff walls.

The prime minister succeeded in getting Bill C-5, which is intended to weaken at least some of the restrictions on resource development and infrastructure, passed into law. He and the premiers pledge to finally dismantle generations of internal trade and labour mobility barriers. If we must trade less with the Americans, we can at least learn to trade with ourselves.

And the prime minister deserves high praise for reversing decades of military decline through increased spending and efforts to improve procurement. If Carney accomplishes nothing more than restoring Canada’s defences, especially in the Arctic, he will be well remembered.

That said, major challenges confront the Carney agenda.

There’s much talk about a new national energy corridor. But what does that mean? One KPMG executive defined it as a “dedicated, streamlined pathway for the energy, electricity, decarbonization, transportation and digital infrastructure.”

Yes, but what does that mean?

Whatever it means, some First Nations will oppose it tooth-and-nail. Not all of them, mind you. The First Nations Major Project Coalition is dedicated to assisting First Nations in working with government and the private sector for the benefit of all. But many First Nations people consider resource development further exploitation of their ancestral lands by a colonizing power. At the first major proposal to which they do not buy in, they will take the government to court.

What investor will be willing to commit to a project that could be blocked for years as First Nations and Ottawa fight it out all the way to the Supreme Court?

The prime minister, formerly a fervent advocate of combatting climate change, now talks about developing “conventional energy,” which means oil and gas pipelines. But environmental activists will fiercely oppose those pipelines.

There is so much that could go wrong. Sweep away those internal trade barriers? Some premiers will resist. Accelerate housing development? Some mayors will resist. Expand exports to Europe and Asia? Some businesses and entrepreneurs will say it’s not worth the risk.

As for the massive increase in defence spending, where will the money come from? What will be next year’s deficit? What will be the deficit’s impact on inflation, interest rates and sovereign creditworthiness? The obstacles are high enough to make anyone wonder how much, if any, of the government’s platform will be realized. But other factors are at work as well, factors that were also present in 1939.

To execute his mandate, Carney is surrounding himself with what, back in the Second World War, were called “dollar a year men”—executives who came to Ottawa from the private sector to mobilize the economy for wartime.

In Carney’s case he has brought in Marc-André Blanchard as chief of staff and Michael Sabia as clerk of the privy council. Both are highly experienced in government and the private sector. Both are taking very large pay cuts because, presumably, they understand the gravity of the times and believe in the prime minister’s plans.

Most important, Carney’s agenda has broad support from a public that fears for the country’s future and will have little patience toward any group seeking to block the prime minister’s agenda.

Millions of Canadians want this government’s reform efforts to succeed. Those who would put it at risk of failing will have to contend with public anger. That gives Carney a shot at making real change.

John Ibbitson

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