FEC in the News: A Roundup
The fight to keep politicians, rich foundations, and the chattering classes from violating our First Amendment rights in an effort to make the world safe for incumbents and those who benefit from their rule continues. The best article I've read lately appeared Friday at Tech Central Station, where economist James D. Miller warned that bloggers face a cabal of big government and big industry. His point illustrates why big government is such a threat to liberty: not only can they restrict our freedoms when they feel threatened; they provide large corporations with the means to choke off competition by leveraging government to pass anti-competitive laws.
Prof. Miller goes on to warn that bloggers face threats in three main areas: campaign finance law (and don't we know it); libel law; and copyright law. Legislative changes in any of these areas that makes blogging riskier or more expensive could turn bloggers away from their posts. About the possibility of a broadened libel law, reader Bruce Kesler emails that "part of the answer that may allow this . . . is the reduced respect for the MSM, leading some who would otherwise rise against curtailments of 1st Amendment rights to stand aside." I find that argument insightful and scary.
As I've argued before, "reformers" don't need to kick our doors in at 3:00 am; computers don't have to be seized at gunpoint. All that needs to occur to scare many bloggers away, either entirely or from stories concerning powerful people and interests, is for Congress to raise the risks of blogging to the point that many no longer consider it a wise enterprise. A blogger with a family to support, kids to put through college, and mortgage payments to make can be forgiven if he'd rather not incur the wrath of a Fortune 100 company like, say, Viacom or GE. Or he may be loathe to carry on with the single most useful and revolutionary feature of blogs -- linking -- if he fears that somewhere in cyberspace, at the far end of his link, there rests a campaign site or a paid commercial for a candidate that could bring the FEC to his site.
News.com reporter Declan McCullagh writes today that the backers of McCain-Feingold "have found themselves in a politically uncomfortable position." While they all want to see further crackdowns on campaigning (my interpretation -- they want to see hostile political speech severely restricted), they know that bloggers and some editorialists have been loud and unambiguous in their objections to any regulation of the Net.
McCullagh provides a good chronological look at this month's battle over any future regulations, and he provides links to key primary sources. Among those is this letter (pdf) of August 23, 2002, from Sens. McCain, Feingold, Snow, and Jeffords, and Rep. Shays, that contains the infamous request that BCRA extend to the Net. It's preceded by a sentence that serves, unintentionally, to remind us of the degree to which these politicians intend to crack down on the Net while winking at traditional media (cutting and pasting is not possible from this document, so I've keyed this in):
We disagree, however, with a blanket exemption for "communications over the Internet." Some Internet communications, such as private e-mail communications or conventional websites, should clearly not be considered electioneering communications. The Commission should leave open the possibility, however, of including communications that are, or may be in the future, the functional equivalent of radio and television broadcasts. For example, as the commentary suggests, simultaneous webcasts of radio or television programs should be included. A per se communications is therefore not appropriate. We note, however, that the treatment of the Internet in implementing this statutory term should differ from its treatment in rules dealing with the definition of "public communication," which has a broader statutory meaning than electioneering communication.
For those who haven't seen it, McCullagh also links to the suit brought by Shays and Meehan against the FEC to force it to regulate Internet speech.
Doug Powers, writing for WorldNetDaily, echoes some of what James Smith said, but adds that we shouldn't forget that anything the government does also has as a goal the collection of money. In this case, that's money no one has tapped yet, Net money, and they want in on the action.
Shankar Gupta at Online Media Daily, from Media Post, has a nice assessment of last week's FEC proposal for regulating the Net. This asks (but offers no answer) to something I'd wondered about: how will the FEC regulations apply to Podcasting and RSS? Podcasting, in particular, is in its infancy, and since it includes the spoken as well as the written word, and can be carried away from the Net in an i-Pod, how will the FEC treat it? Of course, to ask the question is to revisit the ridiculous (and dangerous) world of speech regulation.
Should blogs be considered "public communication," then politically charged posts, links to campaign sites, and other Internet activity theoretically could be regulated under McCain-Feingold.
The proposed "public communications" definition continues to exclude Internet communications with a limited distribution, as well as communications on password-protected Web sites with restricted access. And the new regulations don't extend to bloggers who don't get paid for their postings. But the proposal doesn't clarify whether "compensation" just refers to payments by a political party, committee, or candidate, or if it includes all money, including ad revenue.
And the piece reflects some of what Brent wrote here last week -- an opinion that was echoed by Eugene Volokh. Here's how Shankar Gupta puts it:
In the blogosphere, Hugh Hewitt thinks that, in fact, the FEC threat to bloggers deserves our attention, and that's good for everyone involved in this fight. Mark Tapscott (and let me thank him for the link) thinks, as do I, that Mike Krempasky deserves the first Blogosphere Defender of the First Amendment Award; he also nominates FEC Commissioner Bradley Smith "to be the first inductee in the Blogosphere's First Amendment Hall of Fame." Amen again.
Finally, Ryan Sager lists the media organizations that were scheduled to send reporters to cover the USC Annenberg School's “Covering Philanthropy and Nonprofits Beyond 9/11” last March, at which Sean Treglia blew the whistle on his old employers at Pew. This list includes the Washington Post, LA Times, Business Week, Tampa Tribune, Orange County Register, Seattle Times, and San Francisco Chronicle. Even, as Ryan says, if we allow for the possibility that some reporters weren't sent to cover the story, or that it wasn't their beat, it's remarkable that not one of them chose to write about it. And to think that, among the things that Treglia said to their faces, was that he was stunned when no one covered the Pew grants in previous years.
| Mar. 28, 2005 | 3:43 PM