The Republican Party was once the party of limited government and personal responsibility. Unfortunately, the GOP has been pushing libertarian-minded conservatives from the party for some time.  2008 was the worst year ever for the traditional GOP coalition.  The party establishment was openly hostile to Rep. Ron Paul’s (R-TX) presidential run and the big government social conservative wing of the party even called for a plank in the party platform advocating federal internet censorship to stop adults from playing online poker.  In essence, the party told poker players, internet freedom supporters, and limited government conservatives that they are no longer welcome in the GOP.

Poker players and freedom lovers submitted hundreds of comments to the GOP Platform Committee asking them to support internet freedom.  As the Poker Players Alliance has over one million members, this was something to be taken seriously.  The drafters of the platform got the message.  They kept online poker prohibition language out of the platform, stating a desire not to lose these voters in what was shaping up to be a very difficult election year. Unfortunately, the full committee chose to restore it.  Sadly, rather than making conciliatory comments to heal the rift, Family Research Council Vice President Tom McClusky instead further taunted America’s poker players with statements like, “the Pokers Players Alliance showed their hand well too early,” and “the Republican Platform Committee should be proud that they have stood up for the law and families.”  Focus on the Family proudly highlights these statements on its site to this day.

Reaction to the poker plank was quick. Reason magazine took the party to task for advocating big government in their platform, and Sen. John McCain received tens of thousands of letters and phone calls in protest.  Many protests were, as predicted, delivered via the voting booth on Election Day, and 2008 was a year where the GOP could not spare any votes.

One wonders why this rather small but loud minority of social conservatives has this knee-jerk reaction against poker in the first place.  Maybe it’s an anachronistic holdover from the Temperance Movement of the early 1900s, when too many social conservatives unfortunately started using the power of the federal government to achieve conservative goals.  This is a very dangerous thing, as a government powerful enough to give us everything we want is powerful enough to take everything we have.

Rather than wanting a government big and powerful enough to promote traditional values USING big government, perhaps conservatives ought to worry more about protecting traditional values FROM big government. Many conservatives agree. Former House Majority Leader Richard Armey, George Will, Grover Norquist, Walter Williams, and others strongly oppose what Will has termed “Prohibition II.” As President Reagan famously said, “government is not the solution to our problem; government is the problem.”

With his plan in place, Beshear hired an out-of-state contingency-fee only law firm to assist him with his scheme.  The governor and his team of hired guns went to a state circuit court to initiate the seizure and forfeiture of the domain names in question.  His stated intention was to release the domain names to their rightful owners only after they paid a large cash settlement and agreed to use blocking technology to prohibit Kentucky residents from viewing content the governor found objectionable. In other words, Beshear sought to assess a non-existent tax on foreign companies and unilaterally establish trade policies while censoring the world’s Internet sites to control content accessible to Kentuckians.

Beshear moved his case through the state circuit court, but lost 2-1 on appeal. The Kentucky Supreme Court will hear Beshear’s appeal of that loss next month, and supporters of internet freedom are lining up to tell the court where they stand.  eBay, Network Solutions, the Poker Players Alliance, the Interactive Media Entertainment and Gaming Association, the Electronic Frontier Foundation, the American Civil Liberties Union of Kentucky, the Bluegrass Institute, the Center for Democracy and Technology, and many others are demanding that the Kentucky Supreme Court uphold the appeals court ruling.

Beshear’s contention that any court in the world should be permitted to seize domain names of internet sites operating legally in their home jurisdictions is deeply disturbing to those who value internet freedom and U.S. sovereignty, and with good reason.  For example, under this scheme CNN’s internet domain name could be at risk if they were to run an article critical of Cuba or China.  Similarly, the Family Research Council’s domain name could be seized by a court in a small town in Syria if FRC were to run an article critical of Islam.

A few years ago, a French court ordered the web site Yahoo.com to block French citizens from accessing parts of the site deemed by the court to have content unlawful under French law. Yahoo resisted, citing free speech rights. If French courts had the authority to seize the domain “www.yahoo.com” to force compliance, they could have muzzled Yahoo.  If Beshear succeeds, our First Amendment free speech protections could be rendered moot on the internet.

Beshear’s scheme is also dubious on constitutional grounds. The U.S. Constitution’s commerce clause clearly delegates authority over interstate and foreign commerce to the federal government (“the Congress shall have power to… regulate commerce with foreign Nations, and among the several States”).  State courts are typically hesitant to cede any authority to the federal government, but federal courts – likely the next step for the sites if the Kentucky Supreme Court rules against them – may not so cavalierly ignore the Constitution.

Beshear’s attack on the Internet is not even necessary.  If Beshear wishes to help poker players, all he needs to do is employ a market-based approach.  If he were to support legislation creating a legal framework for online poker, Kentucky’s players would choose licensed sites over unlicensed ones almost every time.  Licensed sites would be perceived as being safer, and market forces would drive compliance via natural competitive advantage.  This is surely preferable to a doomed scheme to police the world’s internet from the Kentucky governor’s office.