June 13, 2005


An End To 'Everybody's Press'? (Nick Schulz, 06/13/2005, Tech Central Station)

Editor's note: The Federal Election Commission (FEC) is currently under court order to consider extending regulation and restriction of political speech outlined by the Bipartisan Campaign Reform Act of 2002 (BCRA, also known as McCain-Feingold). The court order was the result of a lawsuit filed by advocates of regulated speech, including the architects of BCRA, Sens. John McCain and Russ Feingold. Users of the Internet, such as online publications and blogs, so far have enjoyed a broad exemption from the speech restrictions favored by reformers. But the court-ordered rule-making by the FEC could change that. The FEC has asked for comments from the public before a scheduled hearing on the matter that will take place June 28-29 in Washington, D.C.

TCS Editor Nick Schulz interviewed FEC Commissioner Brad Smith about regulation of speech on the Internet and what it might mean for blogs, websites and the future of technology and politics. [...]

SCHULZ: When I was preparing for this interview, a number of different website owners and bloggers wrote in to me to say that the law seems to exempt a publisher from speech restrictions, citing the joke that freedom of the press is freedom of the press as long as you own one. If that's not correct maybe you could set me straight on that. But if that is correct then it seems to me that bloggers should be home free, insofar as the blogger is the owner of his or her site. And if that's true, then a blogger should be as free to choose the content that's on his website as a magazine is to choose its editorial content. Would you agree?

SMITH: We are starting to turn the purpose of regulation on its head. Elihu Root argued that we had to prevent the great accumulations of wealth from taking over politics. That's the direction we are heading now. When we think about who is going to be exempt under the press exemption, I think almost everybody would agree that the big corporations are going to be exempt under press exemption. That is to say that the Washington Post website, well, that's probably exempt. What about Slate, which at one time was owned by Microsoft? Well that's going to be exempt. Why? Because Slate kind of looks and it feels like a newspaper. It comes off the web rather than delivered by paper to my door, but it just has that look and feel and has that kind of sense to it. And then people are going to say, what about maybe a blog such as that run by Glenn Reynolds of InstaPundit or something like that? Well maybe that gets the exemption. But after that it's less clear.

Therefore we are saying if you are a big powerful cooperation, we are going to give you a press exemption for your Internet activity, at least if you are a press operation. And as we work down the line we are not going to give you that exemption. As a result you are going to be stifling the activity of the most grassroots, casual type of political action, rather than that of the big press corporation.

It's particularly odd that we would do this in an era in which most of the mainstream press is owned by large corporations. I don't just mean CBS and NBC and so on being owned by other large corporations. Think about things like station ownership. This was a bit of an issue last fall when Sinclair Broadcasting wanted its stations to air a documentary that many considered a lengthy anti-Kerry commercial rather than a real documentary, whatever that is.

So we are going to say to those folks, well, if you had the power to own a press outlet you are okay and your website is probably going to be okay as well because you are a newspaper or a radio station or what have you. But we're going to say to the pajama-clad blogger in his basement that he doesn't get the press exemption? It seems to me that's exactly the person who we want to be encouraging to be more involved in politics, the person who should get the exemption there.

Some people will say, well, if you give the press exemption to all these Internet sites, what would stop corporations from putting up a website to take advantage of the press exemption? To which the answer is, what stops the corporation now from buying a news station or newspaper?

Airlines have magazines and sometimes they have political stories. Wal-Mart and BJs and some of the big wholesale houses publish magazines; lots of the big investment companies like Fidelity and many others publish newsletters and news magazines and these often include commentary that could be deemed supportive of or opposing to candidates and the candidate agendas.

And so is it really such a horrible thing that while those groups, those big corporations, get the press exemption for the kind of things that only a small number of corporations can afford, we would extend the press exemption to something that everybody can afford?

It seems again to have the purpose of the law turned upside out. [...]

SCHULZ: What is the qualitative difference if I e-mail 2,000 people and tell them to vote for candidate Smith in the election versus posting a passive message telling 2,000 viewers of my blog the same thing?

SMITH: I don't know how one will actually makes those types of distinctions. Even if it's an e-mail list that one has just compiled from their own correspondence of viewers, I think it takes us back to the question of what are we trying to regulate and why? And then why is it viewed as a problem?

The problem that these questions and answers point out is that this appears to be an attempt to silence just one format. It seems that you could set up a non-blog website and plaster it with political messages or send out unlimited emails without running afoul of these objections.

Posted by Orrin Judd at June 13, 2005 2:08 PM

The question is this--Does Orrin Judd have less of a right to exercise free speech than Adam Nagourney? If it is true that a majority of the Supreme Court thinks that the answer is yes, and the populace accepts such an opinion, then the American experiment is already over...

Posted by: b at June 13, 2005 2:25 PM

McCain-Feingold was a dagger aimed at the NRA It turns out that the way the NRA operates is the way political free speech is supposed to work--the politicians are supposed to be afraid of free speech. Now that the cat is out of the bag and the rest of us are starting to feel the lash (Guess who just finished the book, "To Rule the Waves"?) we are starting to see the problem. Please keep in mind that all politicians are, like all policemen, to some extent minions of Leviathan and not to be trusted/

Posted by: Lou Gots at June 13, 2005 7:55 PM

What do you mean, "minions of" Leviathan? They ARE Leviathan.

Posted by: Tom at June 14, 2005 12:23 PM
« THEY HAD TO HAVE BEEN DRUNK TO SIGN UP (via Robert Schwartz): | Main | LUCKY WE LEFT UNCLE REMUS AT HOME (via Jim Yates): »