Campaign Finance Reform (2002) and gratuitous public speech now -- still unsettled, a sleeping dog?

There is a smoldering controversy about personalized speech and 'freedom of reach' (ex-CNN's Brian Stelter's term on the now gone Reliable Sources) that pertains particularly to me.

That matter concerns free content, dealing with policy-related (and therefore potentially 'political') offered by individuals like me online. In this context, 'free' also means not requiring the visitor to have an account or to log in. In many cases there may not be even tracking, although there will be if there are ads (such as Google Adsense or Amazon SiteStripe).  In my situation, that has represented the overwhelming majority of my past online content.   There would be a larger concern with content that supports specific candidates for public office before elections.  But express advocacy tends to become partisan in nature, as generally most controversial policy choices are much more likely to be supported by one candidate than another.

This content may be convenient to many users, who would appreciate not being tracked or expecting to sign up for email lists, to subscribe or 'donate', or distracted by pop-ups and intrusions, or gimmicks forcing the visitor to negotiate many separate pages to get an 'answer'.  Indeed, I personally find the 'begging' tone of a few sites (particularly on the far Left) very annoying. But, as with everything in life, there can be a hidden price for this convenience, collectively.

There could materialize a concern with content that seems gratuitous and generally has low numbers, but that still accumulated a lot of legitimate visits over a long time period.  Modern analytics can analyze the quality of visits for the content of a particular speaker.  Visit quality for textual content still tends to be stronger on computers than on mobile devices.

Back in 2002, Congress passed the (McCain-Feingold) 'Bipartisan Campaign Reform Act' (BCRA), attempting to collar partially hidden 'soft' money going toward candidates, particularly in the weeks immediately preceding an election.  The Federal Elections Commission had applied the law as not to include Internet materials until a federal court ruling in 2004.

Before preceding further, I’ll supply a text copy of an early post, summarizing the issue  and giving some spelled-out hyperlinks,  from Feb. 2014 from the now sunset “doaskdotellnotes” site. 

The 2002 law was followed by a SCOTUS decision McConnell v. FEC on 2003, which is discussed in the First Amendment Dictionary here.   The opinion seemed to nudge the FEC away from viewing Internet discussions as indirect 'campaigning'.  But in September 2004 there was another case Shays-Meehan v. FEC, pdf (brought by two members of Congress) where a federal judge, in a very long and rambling opinion, seemed to imply that while members of the recognized corporate press would not be considered making covert contributions by commentary, individuals (without press credentials, who didn’t write or report for a living, conceivably might be viewed as indirectly making covert, untraceable soft contributions.  

At least the Washington Times thinks so.  It wrote two strong editorials, on June 1 and then Oct. 12 of 2005, which are discussed (and linked – the links still work, just copy them into your browser) in the aforementioned article on my archive website.  On October 11, the Washington Post had also opined on the idea that amateur Internet speech might sometimes pose a hidden danger to the electoral process.  For example, a blog post (possibly without permission of the author) might get circulated by a campaign and amplified. 

It's important to recall that of this discussion predates the emergence of modern social media (except for Myspace) with the heavy manipulation by algorithms (leading to scandals like Cambridge Analytica). This was mostly a function of search engines and sometimes email listserver and forums popular at the time. At the same time there were increasing reports of incidents of conflicts in the workplace over employee public blogging even from home. One of these conflicts led to Heather Armstrong’s wildly successful mommy blog 'Dooce' as well as a new transitive verb for the English language. I remember seeing an article on a tech site late one night in the late fall of 2004, "The coming crackdown on blogging."

As a response to the 2004 court opinion, Rep Jeb Hensarling (R-TX) introduced the simply worded 'Online Freedom of Speech Act' (109th Congress, HR 1606), maybe protecting amateur freedom of reach, but it never went anywhere.

The debate between the Washington Times and Washington Post 'accidentally' precipitated an 'incident' involving me a Fairfax County VA high school where I was substitute teaching, in the fall of 2005.  I’ve covered that here.  It was so bizarre that I am working on a screenplay dramatizing what must have happened out of sight. What was hidden was that a high school and county administration didn’t understand the deeper political issue (which it is supposed to be teaching to kids in civics classes) that would grow and blow up in the election of 2016.

From 2006, we stopped hearing about this issue.  Maybe the FEC quietly backed away from ratifying the worst fears suggested in The Washington Times op-eds, when it finally posted its rules to the Federal Register.  Future litigation, mainly following the distribution of “Hillary: The Movie” by Citizens United in 2009 (my archive review), narrowed the risk that incidental speech could be considered a campaign contribution, because SCOTUS then decided to use “strict scrutiny” in applying the First Amendment.  However it may not be completely clear how the doctrine could apply with “amateur” or “gratuitous” speakers.

It should be noted that most of the 'soft money' contributions of concern generally are made by (partisan political) organizations, sometimes raised from more covert sources.  In all the recent election controversies during the Trump years, no one has viewed 'gratuitous speech' by amateurs as part of the problem.  But that may be the case partly because such speech is more likely to benefit “conservatives”.   The other issues like gerrymandering and restrictions of voting methods, however, have much more effect in practice.

The basic objection, largely from the Left, would be that someone who does not need to make a living from writing might have unfair leverage in expressing his/her opinions.  But that observation was not directly part of the original concerns about soft money.  It's simply that the 'softest' money often comes from people who do not need to be paid for what they write.

This idea, however, is what drives my 'A Dangerous Thought Experiment' video on Aug. 3. 

I have indeed encountered some 'cultural resistance' from keeping self-published books that do not sell (in a normal commercial sense) available so long because 'I can', that is seen as inequitable,  The same would be true of a massive Internet presence that actually provides continuous commentary on news items that may affect individual visitors in unexpected ways.  It's the 'I told you so' thing.  The more commonly expected courtesy is “write what other people want” and meet them where they are. That canard comports with Nassim Nicholas Taleb's "skin in the game" ethical rule: "you must start a business" and provide for others (a family?) before you speak out public about anything. I did not.

The sites and blogs have been my own individually agented public speech.  True, my circumstances might seem more 'privileged'.  Without that, I would have to allow others to speak for me, even while disagreeing strongly with them morally on many things.   In fact I would have to be willing to fight on one side or another for others' collective fate (think of the demands for "anti-racism" and the phonic meme "silence is violence" as examples), and bond with people whom I would not normally affiliate with personally. You could say that the "soft money" effect of individual gratuitous speech weakens conventional activism, which needs solidarity in numbers following orders from a "revolution's" leadership; it makes the more extreme demands of a marginalized group less likely to be accepted. I do not personally accept the idea of an identity based only on shared oppression, because that is not what happened.  OK, that’s the flip side of the 'do not idolize' thing.   I would have to ride in someone else’s raft and share their fate.  If I was going to live I would have to accept some bonding with individuals whom I had thought poorly of before because of their own apparent "cry bullying". I know this sounds a bit Marxist, but so be it.  That’s inevitable with so much inequity. And it leaves me in a potentially very precarious or dangerous perch.

(Posted: Saturday, September 10, 2022 at 7 PM EDT by John W. Boushka)