SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Wednesday, March 09, 2005

SPECTER OF BLOGGER POLITICAL SPEECH RESTRICTIONS: A SHORT ROUND-UP. Prof. Rick Hasen of Election Law Blog offers an insightful discussion (here) about the possibility of the FEC regulating the political speech of bloggers, following the much-discussed comments of FEC Commissioner Bradley Smith. (Hat tip to Volokh Conspiracy.)

Says Hasen:

Appropriate regulation should meet two fundamental criteria: (1) grassroots activities should be regulated little, if at all; and (2) large-scale campaign activity—like advertising—that already faces regulation when done outside of the Internet should be regulated equally when the activity takes place through the Internet.

He goes on to predict:
…the FEC will propose only modest regulation, mostly to insure that, as under current law, campaigns and committees fully disclose amounts spent on political advertising to appear on websites.


The average, uncompensated blogger therefore appears to have very little to worry about from FEC regulation, fearing neither disclosure requirements nor contribution limits for political activity. The same appears to go for private individuals who send e-mails to friends, or even to a listserv.

Hasen goes on to discussion various rules concerning disclosure, under current campaign finance laws, and the scope of the media exemption:

The FEC’s rulemaking should extend the media exemption to bona fide newscasts, articles, editorials, and commentaries appearing in online journals or political blogs. New rules should preclude a complaint that an online journal or blogger is making an in-kind contribution to a candidate by promoting (or attacking) a candidate for federal office through a blog posting, online journal article or commentary, or link, even if the journal or blogger has communicated with a candidate or committee.

He then states the following:

Online corporate-owned journals like, however, do not appear to fall within the literal ambit of this "media exemption," nor do any blogs that are owned by corporations, because the exemption on its face applies only to broadcasts, newspapers, and periodicals. As a matter of policy, bona fide on-line journals and political bloggers such as Hugh Hewitt, Andrew Sullivan, or Joshua Marshall, should be treated the same as the New York Times and David Brooks.

In response, Prof. Eugene Volokh chimes in with the following:

It would be good to clarify FECA to make clear that Weblogs and online magazines are exempted. But I think that, properly -- even literally -- interpreted, "other periodical publication" already includes blogs (except perhaps ones that publish intermittently and very rarely).

The entire campaign-finance speech restrictions strike me as blatantly unconstitutional. I think that POLITICAL speech is at the very heart of the First Amendment’s protection of the freedom of speech. Judge Kenneth Starr is all over this one in his book First Among Equals. Nonetheless, given the contingent reality that McCain-Feingold remains largely in-tact and on the books, Hasen makes some good observations worth considering. Further, I think Volokh is spot-on. Blogs are periodicals, as far as I’m concerned, and already covered. Still, I would prefer to see protection explicitly extended to new media.

Finally, Prof. Thomas Smith of The Right Coast makes a couple quick comments about what should happen if the FEC really did try to take on bloggers and stifle their political speech rights:

I think/hope the fears are exaggerated. But I do think political bloggers, left and right, should just prepare themselves psychologically for the possibility of having to take a concrete stand for free speech. Or maybe just prepare to prepare themselves. Free speech is one of those important things. If it does come to that, sticking together will be the important thing. The swarm. United. Will never be defeated.

I don't think the FEC will try to touch the blogopshere, but I am entirely with Smith on this one. Any such attempt by the FEC would result in a STRONG backlash. As much as politicians wedded to the days of Legacy Media's information monopoly might complain, the blogosphere is here to stay.

(Downtown Seattle, WA)


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