March 3, 2005

Could American Blogs Become Samizdat?

Glenn Reynolds links to this interview with Federal Election Commission member Bradley Smith. Smith is one of six commissioners at the FEC, and one of three Republicans. He says that a recent ruling by U.S. District Judge Colleen Kollar-Kotelly may pave the way for significant federal regulation of the Internet, including blogs. Indeed, the title of the piece is "The coming crackdown on blogging." The possibilities that Smith lays out are chilling and, if enacted, could spell the end of blogging as we know it. Indeed, it could turn much of what is published on the Net into a samizdat-style activity.

Sound alarmist? Read on. It all stems, of course, from McCain-Feingold, the absurd and (pace the Supreme Court) unconstitutional curtailment of political speech in violation of the First Amendment. Both Senators, and the Democratic members of the Commission, favor regulating political speech on the Internet, lest bloggers and electronic publications enjoy an advantage over print publications. This is a huge power grab by elements of the federal bureaucracy who are threatened by New Media, and a first step by those forces to shut down political speech they don't like.

Below are excerpts from the interview, followed by a two-paragraph conclusion and updated links to others who are following this story. I've highlighted some of the more incredible things that Smith says the ruling could demand.

Q: What rules will apply to the Internet that did not before? A: The commission has generally been hands-off on the Internet. We've said, "If you advertise on the Internet, that's an expenditure of money--much like if you were advertising on television or the newspaper."

The real question is: Would a link to a candidate's page be a problem? If someone sets up a home page and links to their favorite politician, is that a contribution? This is a big deal, if someone has already contributed the legal maximum, or if they're at the disclosure threshold and additional expenditures have to be disclosed under federal law.

Certainly a lot of bloggers are very much out front. Do we give bloggers the press exemption? If we don't give bloggers the press exemption, we have the question of, do we extend this to online-only journals like CNET?

Even those who, for whatever reason, believe that political speech should be regulated must admit the impossibility of regulating some parts of Internet speech without regulating all of it:

Q: How can the government place a value on a blog that praises some politician? A: How do we measure that? Design fees, that sort of thing? The FEC did an advisory opinion in the late 1990s (in the Leo Smith case) that I don't think we'd hold to today, saying that if you owned a computer, you'd have to calculate what percentage of the computer cost and electricity went to political advocacy.

It seems absurd, but that's what the commission did. And that's the direction Judge Kollar-Kotelly would have us move in. Line drawing is going to be an inherently very difficult task. And then we'll be pushed to go further. Why can this person do it, but not that person?

Q: How about a hyperlink? Is it worth a penny, or a dollar, to a campaign?
A: I don't know. But I'll tell you this. One thing the commission has argued over, debated, wrestled with, is how to value assistance to a campaign.

Corporations aren't allowed to donate to campaigns. Suppose a corporation devotes 20 minutes of a secretary's time and $30 in postage to sending out letters for an executive. As a result, the campaign raises $35,000. Do we value the violation on the amount of corporate resources actually spent, maybe $40, or the $35,000 actually raised? The commission has usually taken the view that we value it by the amount raised. It's still going to be difficult to value the link, but the value of the link will go up very quickly.

Q: Then what's the real impact of the judge's decision?
A: The judge's decision is in no way limited to ads. She says that any coordinated activity over the Internet would need to be regulated, as a minimum. The problem with coordinated activity over the Internet is that it will strike, as a minimum, Internet reporting services.

They're exempt from regulation only because of the press exemption. But people have been arguing that the Internet doesn't fit under the press exemption. It becomes a really complex issue that would strike deep into the heart of the Internet and the bloggers who are writing out there today. (Editor's note: federal law limits the press exemption to a "broadcasting station, newspaper, magazine or other periodical publication.")

Q: What happens next?
A: It's going to be a battle, and if nobody in Congress is willing to stand up and say, "Keep your hands off of this, and we'll change the statute to make it clear," then I think grassroots Internet activity is in danger. The impact would affect e-mail lists, especially if there's any sense that they're done in coordination with the campaign. If I forward something from the campaign to my personal list of several hundred people, which is a great grassroots activity, that's what we're talking about having to look at.

Senators McCain and Feingold have argued that we have to regulate the Internet, that we have to regulate e-mail. They sued us in court over this and they won.

Q: If Congress doesn't change the law, what kind of activities will the FEC have to target?
A: We're talking about any decision by an individual to put a link (to a political candidate) on their home page, set up a blog, send out mass e-mails, any kind of activity that can be done on the Internet.

Again, blogging could also get us into issues about online journals and non-online journals. Why should CNET get an exemption but not an informal blog? Why should Salon or Slate get an exemption? Should Nytimes.com and Opinionjournal.com get an exemption but not online sites, just because the newspapers have a print edition as well?

Q: Why wouldn't the news exemption cover bloggers and online media?
A: Because the statute refers to periodicals or broadcast, and it's not clear the Internet is either of those. Second, because there's no standard for being a blogger, anyone can claim to be one, and we're back to the deregulated Internet that the judge objected to. Also I think some of my colleagues on the commission would be uncomfortable with that kind of blanket exemption.

Q: So if you're using text that the campaign sends you, and you're reproducing it on your blog or forwarding it to a mailing list, you could be in trouble?
A: Yes. In fact, the regulations are very specific that reproducing a campaign's material is a reproduction for purpose of triggering the law. That'll count as an expenditure that counts against campaign finance law.

This is an incredible thicket. If someone else doesn't take action, for instance in Congress, we're running a real possibility of serious Internet regulation. It's going to be bizarre.

Even limiting regulation to the areas that Smith delineates is unacceptable, but does anyone believe it would stop there? Would those who went after Dan Rather, who was clearly intent on harming the Bush campaign, be accused of helping Bush and therefore face the threat of regulation or fines? Ditto for anyone whose research was used to support the claims of the Swift Vets for Truth? They certainly hurt the Kerry campaign, so would aiding them amount to aid to the opposite side? That is, how could any of this be limited to those who simply linked to or drew on information that originated with a candidate? After all, the Net is filled with information whose origin is difficult to assess; email lists are ubiquitous, but what's their origin?

This is a clear attempt by some on the FEC to reign in the ability of bloggers and others who publish on the Net. I would go so far as to call it the Establishment's revenge. If the grassroots nature of the Net is destroyed, then the Net in America goes underground, much as it already is in China, Iran, and other oppressive states. I'm not assuming that bloggers would be arrested and beaten, but fining or regulating them will, effectively, close them down. What these regulators hate most about the Net is its spontaneity, because that is its greatest strength. And that's precisely what regulation would destroy.

Update: Michelle Malkin links with some words of advice: "I think McCullagh and FEC commissioner Brad Smith have done a real service sounding the alarm as the panel moves forward on extending McCain-Feingold to the Internet." Indeed they have. Via Michelle, see also Joshua Claybourn at In the Agora and the growing list of links at Instapundit.

Update II: Steven Bainbridge takes this threat seriously; so too, via Instapundit, does Mike Krempasky at Red State.

Update III: Michelle continues to track the story's spread across the blogosphere; see her trackbacks for loads of links. More commentary may be found at Okie on the Lam, Tributaries, Sisu, Uncorrelated, and Captain's Quarters.

Update IV: This essay by Tom West of the University of Dallas puts the Bipartisan Campaign Reform Act of 2002 in historical perspective. It was written in February '04 and, among other things, makes clear just how far from the Founders' intentions are such restrictions on political speech. He notes that the law exempts newspapers from such restrictions, and why:

The Bipartisan Campaign Reform Act of 2002 goes well beyond the 1974 law, imposing substantial limits on the right of political parties and nonprofit organizations to publicize their views on candidates during election campaigns. Imagine the shock of the Founders if they were here to see that government was heavily into the business of banning private citizens from pooling their fortunes to publicize their opinions about candidates for elections.

These laws do contain a notable exception. Newspaper owners may spend as much money as they wish publishing arguments in support of candidates with whom they "coordinate." This solitary exemption from restrictions on free speech is, of course, no mistake: The dominant newspapers in America are liberal, and the 1974 law was passed by a Democratic Congress on the day before Richard Nixon resigned in disgrace from the presidency.

Campaign finance regulation stands in direct opposition to the Founders' understanding of the First Amendment. For a large class of people, it effectively prohibits and punishes the most important thing that the right to free speech is supposed to guarantee: open discussion of candidates and issues at election time.

Those who favor campaign finance regulation sometimes claim that their primary concern is with "corruption and the appearance of corruption"—that is, what used to be called bribery or the appearance of bribery. But that is not the real agenda of the reformers. There is a good reason why the 2002 Act, like the 1974 law, was voted for by almost every House and Senate Democrat, and opposed by a large majority of Republicans: These laws are primarily about limiting the speech of conservatives.

Here are some quotations from the 2002 congressional debate:

Sen. Maria Cantwell (D-Wash.): "This bill is about slowing the ad war.... It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves."

Sen. Barbara Boxer (D-Calif.): "These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal.... We have an opportunity in the McCain-Feingold bill to stop that."

Sen. Paul Wellstone (D-Minn.): "I think these issue advocacy ads are a nightmare. I think all of us should hate them…. [By passing the legislation], [w]e could get some of this poison politics off television."

In other words, the law makes it harder for citizens to criticize liberal politicians when they disagree with their policy views.

Update V: Captain Ed has updated his post with this note:

McCain and Feingold have managed to foster real bipartisanship -- they've gotten liberal and conservative bloggers alike to detest them. Jerome Armstrong at MyDD, Atrios, and DailyKos all agree -- this legislation has become a serious threat to political speech, and John McCain and Russ Feingold have become two of the most dangerous politicians to American liberty since Huey Long. Jerome makes the point that the problem at the moment are the three Democratic FEC commissioners who appear intent on enforcing the law as McCain and Feingold insist, but both parties had a hand in creating this fiasco. Both should work to eliminate it and tell John McCain and Russ Feingold to shut the hell up -- and see how they like it.

Here's what two left-wing blogs to which he links have to say:

MyDD:

"Dammit, how can this be? The Republicans are on the right side of this issue. Judge Colleen Kollar-Kotelly, in citing Smith, is the ignorant tool of clueless advocacy groups in DC. Even Smith himself now recognizes the folly here. . . . Well then, someone in Congress needs speak out a clue to the FEC, and it's not the Republicans!

And Daily Kos:

This development merits monitoring and, dare I say it, lobbying, if necessary. And yes, lawsuits in the ultimate case. This is very much a threat to what we think we are doing here at dailykos, and what others, both on the Left and the Right are doing.

And yes, this is definitely a First Amendment issue.

— Winfield Myers

| Mar. 3, 2005 | 10:33 AM