DADT III CH 3, ONLINE SPEECH AND CENSORSHIP, POLITICAL SPEECH CONTROVERSIES

HOW CAMPAIGN-FINANCE REFORM THREATENED BLOGGING AS WE KNOW IT NOW

FEBRUARY 13, 2014 JBOUSHKA@AOL.COM 8 COMMENTS EDIT

In 2004 and 2005, there was a serious concern that some court opinions following the enactment of the McCain-Feingold Finance Campaign Law in 2002 could force the government to reign in on amateur blogging and other content on the lab. Articles would popup with titles like “The coming crackdown on blogging”. At the time, Myspace had barely started, Facebook was two years off from immaculate conception, and the impact of social media on the paradigm for user-generated web content was not yet understood. The basketball, it seemed, was very much still in the court of the Federal Election Commission, and it was dribbling.

The issue would precipitate an incident in my own life in October 2005 when I was substitute teaching, but the details will be reviewed in a later post. Here, I want to outline the free speech issue that led up to it.

The FEC gives its own account of the McCain-Feingold law here. In 2003 In a case called McConnell v. FEC was decided by the United States Supreme Court, which held that most of the law was constitutional (opinion reference ) and that any implicit restrictions on free speech (First Amendment rights) as a result of reigning in on “soft money” contributions was minimal and appropriate to prevent corruption or appearance of corruption. Remember the public was still angry over what had happened in Florida in the 2000 presidential election (leading to Bush v. Gore), as covered in a film review here .

The FEC tried to propose standards that would keep any restrictions on speech away from amateur Internet postings. It is perhaps to its credit that it understood that this needed to be considered, although earlier court cases (like the Telecommunications Act of 1996 and “Communications Decency Act”, the latter struck down by the Supreme Court in 1997) had already called attention to the public value of a larger well of spontaneous online speech.

In September 2004, the Judge Colleen Kollar-Kotelly of the DC Circuit ruled on a suit by Shays and Meehan v. FEC (the plaintiffs were members of the United States House of Representatives), with a PDF of the opinion at the FEC site here. Her ruling implied that blog contents could be viewed as soft campaign contributions, and ordered the FEC to regulate blogs or sites intended to affect the outcomes of elections. My own take right off the bat is that this is a naïve idea, that the only way to protection your rights is to recruit people to elect your (partisan) candidates. The FEC started to comply, with some more rules, like these in March 2005, such as here.

The media began to make dire predictions of what could happen to the blogosphere. The Chicago Tribune ran a typical story in right after the opinion, titled “Spectre of regulation haunts political blogs, lnk here, referring to a political blog, “Daily Kos” (link) which, when I checked it, does prompt people to sign petition.

On October 12 and 13, 2005, the Washington Post and Washington Times faced off on this issue. The Post ran an editorial titled “Cyber Loophole”, link here , in which it laid out a thought experiment where a politician end-rounds the law by “asking” a constituent company to pay for its Internet ads, which might show up in syndicated ads (like Google adsense) on amateur blogs. (In fact, I do see a lot of these on my own Adsense blogs in election years.) Cox and Forkhum offered some thought experiments with unintended consequences here.

The Washington Times (the “conservative” paper) retorted the next day with an editorial titled “Suffocating the First Amendment”, link here (with an earlier version in June, “Free speech for bloggers”, here. TWT even suggested that to open a “free service” blog on Google Blogger, a typical person would be required to get some sort of lawyer signoff to make sure that he or she didn’t violated FEC rules. That would impose a pre-review process on Internet speech comparable to what is debated now with Section 230 (to be discussed here later). The TWT editorial disappeared from online for a whole, and I even called the paper in 2008 and discussed my own situation (to be described soon) with them. They thought a lot of coincidences must have converged for a “perfect storm”.

We all know that the Supreme Court went into a new direction in 2009 with the Citizens United case. In the meantime, it seems as though this “existential threat” to blogging was gradually forgotten. Somehow, in early 2006, the FEC came up with more rules that seemed to protect the true amateurs. For one thing, the critical concept was simply for bloggers to disclose any contributions or payments made to them (including free samples of products or media for them to review).

Links: McCainFeingold constitutional https://www.law.cornell.edu/supct/html/02-1674.ZS.html

Shays v. Meehan https://www.fec.gov/resources/legal-resources/litigation/bcra/shays_meehan_mem_opinion_dc.pdf

Washington Post cyber loophole Oct 11 2005 https://www.washingtonpost.com/wp-dyn/content/article/2005/10/10/AR2005101001170.html

Washington Times Free speech for bloggers June 2005

https://www.washingtontimes.com/news/2005/jun/1/20050601-100142-5691r/

Suffocating the First Amendment Oct 12, 2005 https://www.washingtontimes.com/news/2005/oct/11/20051011-092709-1577r/

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8 THOUGHTS ON “HOW CAMPAIGN-FINANCE REFORM THREATENED BLOGGING AS WE KNOW IT NOW”

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JULY 3, 2014 AT 2:40 AM EDIT

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Pingback: How an article on the workplace and automation leads us back to network neutrality and other potential issues for Internet user-generated content – Bill's News Commentary Edit

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jboushka@aol.com

OCTOBER 11, 2018 AT 9:47 PM EDIT

Check the Wikipedia article that also covers the 2014 McCutcheon case and “soft money” https://en.wikipedia.org/wiki/Campaign_finance_in_the_United_States and https://en.wikipedia.org/wiki/Campaign_finance_reform_in_the_United_States#Current_proposals_for_reform

jboushka@aol.com

DECEMBER 16, 2018 AT 8:22 PM EDIT

From Electronic Frontier Foundation: here is a web article on Election law as it applies to bloggers. I must confess I had never found this before (Bill). For the most part, ordinary political and issue blogging presents very little risk, according to this article. https://www.eff.org/issues/bloggers/legal/election It seems as though activists on both extremes (now on the far Left) fear that individual political blogging hurts solidarity for disadvantage groups, which is becoming more of a practical problem for hosts chased by activists. But it is not really a legal problem, but maybe a practical one.

jboushka@aol.com

AUGUST 19, 2019 AT 7:43 PM EDIT

Now the New York Times reports that small donors through “ActBlue” have their political donations made public and a few have lost jobs as a result https://www.nytimes.com/2019/08/18/opinion/democrats-donor-data.html?action=click&module=Opinion&pgtype=Homepage

jboushka@aol.com

JUNE 14, 2020 AT 6:33 PM EDIT

For reference, here is a legal directory for the Citizens United Case https://www.oyez.org/cases/2008/08-205 (decided 2010)

jboushka@aol.com

AUGUST 29, 2020 AT 6:24 PM EDIT

The situation with Laura Loomer, and her primary win in FL, and an appeal to the FEC to stop tech companies from banning her, may be relevant to this issue: https://www.politico.com/news/2020/08/20/fec-probe-tech-bans-laura-loomer-399391