Thursday, March 03, 2005

Curtailing My Freedom Of Speech

Check out this interview with Federal Election Commissioner Bradley Smith, titled "The Coming Crackdown On Blogging". The FEC is planning to apply the McCain-Feingold bill to blogs.

What does this mean? Well, McCain-Feingold restricts the contributions from corporations and individuals to political campaigns. In the case of websites and blogs, the FEC is planning to judge "contributions" in interesting ways:

How can the government place a value on a blog that praises some politician?
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?

How about a hyperlink? Is it worth a penny, or a dollar, to a campaign?
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.

. . .

If Congress doesn't change the law, what kind of activities will the FEC have to target?
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 and get an exemption but not online sites, just because the newspapers have a print edition as well?

. . .

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?
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.

And this will apply to Heroes from the Past, although it's questionable whether the FEC will target such a small blog as this. If I reproduce campaign literature, even if it is with permission and correctly attributed, I may be breaking McCain-Feingold. If I hyperlink to George Bush's campaign website, I may be breaking McCain-Feingold. If I ever incorporate myself (which is a real possibility, longterm) and do any of this, I will probably be breaking McCain-Feingold.

Whatever happened to free speech in this country?

BTW -- who is at least partially to blame?

In 2002, the FEC exempted the Internet by a 4-2 vote, but U.S. District Judge Colleen Kollar-Kotelly last fall overturned that decision. "The commission's exclusion of Internet communications from the coordinated communications regulation severely undermines" the campaign finance law's purposes, Kollar-Kotelly wrote.

Smith and the other two Republican commissioners wanted to appeal the Internet-related sections. But because they couldn't get the three Democrats to go along with them, what Smith describes as a "bizarre" regulatory process now is under way.

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