Don't Let Me Stop You

What the heck, you'll do what you want anyway.

Regulation of Blogspeech

Posted by Dan Draney on June 30, 2005

The Federal Election Commision is still considering how the “free speech” rights of bloggers should be regulated under the McCain-thank-you-John-Feingold controls on political speech.

CNET News.com: “Mike Krempasky, a conservative activist and contributor to the RedState.org blog, said he hopes the FEC will ‘ensure that no blogger, no amateur activist and no self-published pundit ever need consult with legal counsel.’ The FEC’s 47-page proposed rules, which are not final, cover everything from candidate endorsements to fund-raising, bulk e-mail and paid advertisements.

Just 47 pages (and counting), what a relief! We were afraid it might be onerous, but the DLMSY legal department can take care of that in short order.

Online politicking should not be subject to onerous federal rules, Democratic FEC Commissioner Ellen Weintraub said. ‘We’re all agreed about that.’ But, Weintraub added, ‘What is the best way for us to regulate bloggers?’

Call us crazy, but we think that the first amendment was actually meant to protect political speech as much as say flag-burning, topless dancing, and pornography. We’d even go so far as to suggest that the Founding Fathers might have considered protecting political speech a tad more important to a vibrant republic than those other forms of “speech.” Consequently, we believe the “best way” to “regulate bloggers” is to prohibit the government from doing so.

Some possible endruns around the regulation of bloggers are being considered:

“Say bloggers are journalists: RedState.org’s Krempasky and Markos Moulitsas Zuniga, editor of the liberal DailyKos.com site, argued that bloggers should be viewed as media organizations that have long been exempt from campaign finance laws.

‘The commission identifies Slate.com, the Drudge Report and Salon.com as entities presumably deserving of the exemption,’ Krempasky said. ‘But if the commission grants credentials to these three, how can (it) deny the same privilege to AndrewSullivan.com, Joshua Marshall’s TalkingPointsMemo.com or Kevin Aylward’s Wizbang blog?'”

And what about poor Wonkette? What is she, chopped liver? She’s as Old Media as any of these others. But we digress…

“Carol Darr of the Institute for Politics, Democracy & the Internet warned that the so-called media exception would be abused. If the FEC veered in that direction, Darr said, you’d see ‘the campaign finance laws that we’ve operated under for 50 years just crumble.'”

She says that like it would be a bad thing. Heaven forbid Americans could once again freely put their money where their political views are.

Consider the actual language of the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Note that “freedom of speech” is mentioned before “the press,” indicating that individuals were no afterthought in the quest to protect press freedom. Freedom of the press belongs to those that own one. At the time “the press” was known to include not only major newspapers but small, fly-by-night “pamphleteers,” as well (e.g. Tom Paine). The people own freedom of the press, and the digital revolution has given it back to us. The plain fact is bloggers are the pamphleteers of today.

Back to the CNET article:

“Set a dollar limit: Permit online political endorsements and a blog set up solely to aid a federal candidate–as long as the spending on hosting fees, computers and so on stays below a certain figure.

But what should that limit be? John Morris of the Center for Democracy & Technology suggested $500. FEC Chairman Scott Thomas, a Democrat, said $1,000 was ‘a little low’ and ‘if Congress would help us on that, it would alleviate some of the concerns.'”

If this approach is adopted, we would say that even $5,000 is still too low. It will probably cost that much just for the legal expenses of compliance. In any case, since the government is not able to maintain the value of money over time, any dollar figure written into law should be indexed for inflation.

This is an interesting approach:

Say the Internet is radio: Radio and TV stations generally are immune from campaign finance laws unless their ‘facilities’ are controlled by a political party or candidate.

One option, suggested by Republican Commissioner Michael Toner, would be to extend the same logic to say the ‘facilities’ of Web servers should immunize political speech online.

This whole exercise is unworthy of the government of a free people. It’s the kind of thing that is rightly condemned in closed societies, albeit at a lower level for the present. When was the last time government regulation didn’t cause more problems that “required” more regulation?

Do nothing: The most incendiary approach, this would involve waiting until some unresolved legal disputes are answered or perhaps even ignoring the court order. ‘If the commission decides to regulate online political speech, it should only do so if a majority of commissioners conclude so independently, apart from the (court) decision, that the McCain-Feingold law requires the FEC to regulate the Internet,’ Toner said.”

And did we remember to thank John McCain for this? We’ll remember if we ever see his name on a ballot.

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