This White House is the most technically savvy administration in history. It wants to "own your computer" when you sign up for the "Cash for Clunkers" program; it wants to monitor your browsing habits with "cookies;" and it wants you to report your neighbor if you notice anything "fishy." Now, it wants us to believe that the most recent Internet-related story involving third party healthcare e-mails is another mistake. Don't believe the government's excuses. This White House is pushing programs and bills down our throats and it knows exactly how to use the Internet as a means to its ends. But Americans, like the viewer that provided my FOX News colleague Glenn Beck with the "Cash for Clunkers"/"own your computer" story and some journalists, like my colleague Major Garrett, are confronting the government. What my FOX News colleague Major Garrett did, by demanding to know how the White House gains access to the e-mail addresses of millions of Americans, was historic in its dimension.
The present administration has not even tried to hide its antipathy for our privacy and our right to speak and communicate without intimidation. For starters, the Supreme Court has ruled that the First Amendment protects the right to anonymous speech; thus, any effort to find out who or where or why folks oppose the president is unlawful and unconstitutional. Second, the statutes that the president has sworn to enforce make it unlawful for him or anyone in his name to take names and try to pierce constitutionally-protected anonymity. Third, the threat to deliver cookies to the computers to those who communicate with the White House is an egregious violation of privacy. Think about it: The government is absolutely prohibited by caselaw and statute from putting a camera over your shoulder while you browse in a bookstore or library. It also cannot monitor your computer browsing habits without violating your privacy.
The Supreme Court rejected the idea that the First Amendment permits the government to make and keep a record of the faces and voices and ideas of its domestic political opponents. The Court called this "chilling" the right to speak freely; in other words, denying it the breathing room that free speech requires. The whole purpose of the First Amendment, the Court wrote, is to encourage -- not discourage -- open, broad, robust political debate; and any inhibition, real or threatened, that comes from the government is unconstitutional. In direct response to President Nixon's enemy list, Congress enacted the Privacy Act. Among many other protections, it specifically prohibits the president or anyone in his name from making or keeping records of any persons' use of speech.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.