March 03, 2005
The coming crackdown on blogging?
Will McCain/Feingold be the end of political blogging as we know it? FEC Commissioner Bradley Smith says yes. This guy says no. Me, I'm unsure. Any lawyers want to wade in here? Seems to me that the naysayer has a pretty good case when he says that "the smallest drop of knowledge about First Amendment law would tell you that such an interpretation has probably one of the steepest climbs in all of jurisprudence". Awaiting further enlightenment...
Posted by Charles Kuffner on March 03, 2005 to National news
Will McCain/Feingold then also be the end of right-wing talk radio? Can you tell me Rush has never coordinated his attacks with the bushies?
So let me get this straight.
Fox News and talk radio can run 24-hour a day de facto campaign commercials for Bush and that's fine because they are the "press".
But if a blogger copies and pastes a campaign news release from a candidate it is considered and in-kind contribution and needs to be accounted for? And better yet, what if the blogger is posting from an offshore account or offshore server. Is that an illegal foreign campaign contribution?
I can't answer the legal question but I frankly can't imagine how they could ever make that sort of nonsence stick. The web just can't be regulated in that way. Sounds sort of like the hapless Chinese internet regulators who try to regulate content. It still slips through anyway.
I disagree with those who think it would changing blogging though. It wouldn't. It would just show how clueless the FEC is and how absolutely toothless their nonsense is. There's no possible way that the FEC with it's limited staff could ever keep track of even 0.001% of the web.
I am a lawyer. I don't think there's anything to it--political speech is incredibly protected in this country. Not only that but it is Smith can try to stop this by swaying the FEC his way. All of the sudden he's claiming he's powerless to stop this. Right.
Note I will be researching this a bit in the next few days to find out what the legal positions are in the case and why the vote went the way it did. Its my sneaking suspicion that the grounds that the Republicans were going to use to appeal were ones which would set up the whole speech=money argument to open the door to striking down most of McCain-Feingold. That would explain the Democratic votes on the issue.
I'm not a lawyer, but I can tell you Kuff that there would be substantial time to react to any real threat. The Federal Election Commission will have to put together a rule and then issue a Notice of Proposed Rulemaking (NPRM) soliciting notice and comments, at the very least.
Moreover, since there are clear First Amendment issues, I would imagine that an attempt to use mere notice-and-comment rulemaking would result in a lawsuit.
In other words, this will be tied up in bureaucratic and legal red-tape for months, if not years.
And of course, there is no "plan" yet. I'm not worried for the immediate future.
So...are you asking for some common sense or a lawyers opinion?
I'm not a lawyer, but the rest of my immediate family is. And if anyone were to try to restrict my free speech rights, I would sue. And win.
This will fall apart once people start trying to draft rules for how much your in-kind donation of a link is worth on your FEC disclosure. A less-well-known blog's link will be worth less than a major blog's link. This will be a nightmare for the bueracracy, which will, by the way, make it an easy target for civil disobedience campaigns to get the regulation changed. :)
There was an article in today's NYT about the Chinese Internet Police and their attempts to control the internet. Apparently China has over 50,000 full-time internet police (censors) and they are still losing the battle. There are growing calls to just abandon the futile attempt to control content.
In my mind, attempts to REGULATE and TRACK content in some misguided attempt to correlate political discourse with campaign contributions would be even more difficult than simply blocking content in the manner that the Chinese do. Blocking content is a relatively crude approach. Evaluating content and assigning it a monetary value would be ridiculously difficult and ultimately arbitrary. And the FEC would need an even larger staff than the 50,000 internet police in China to do the job.
Take this site for example. Presumably a front page link in the sidebar would be worth more than a link created by a reader in the comments section. How to distinguish between the two? Who is going to be in charge of counting the links that site readers put up inside the comment sections?
What about scornful links. What if I put up a link to the RNC or the Jeb Bush 2008 campaign saying: Look at this idiot, what a pathetic web site, what a bunch of liars" Would the RNC get charged against their spending limits for that sort of link?
The whole thing is just too ridiculous for words.