Wednesday, March 23, 2005

The potential regulation of political speech on the internet by the FEC under the auspices of the odious McCain-Feingold campaign finance " reform" law, has begun to alarm the well-established old media.

From The Omaha World Herald, newspaper where the highly regarded blogger, Geitner Simmons, is an editor:

"Free speech has deep roots in America's political life. In the 1770s and '80s, Americans used the printing press to express their political views. The Federalist Papers themselves, first published in newspapers, were an exercise in vigorous political argument.

In the 21st century, new technologies are opening new vehicles for political speech. The Internet, among others.

During the 2004 election campaign, the Democratic and Republican Parties both used online outreach as a major new way to raise contributions. The Internet is also home to an ever-growing assortment of weblogs - do-it-yourself commentary sites that individual citizens are creating and then using with gusto to express their personal political passions.

These "blogs" range widely in quality. Some consist of little more than ranting. Others offer serious analysis. One thing they all share, however, is that they epitomize American free speech in action in a high-tech, 21st-century environment.

A concern has arisen in recent weeks over whether the McCain-Feingold election law requires federal regulators to restrict Internet speech. (McCain-Feingold, which the U.S. Supreme Court ruled constitutional by using dubious logic, tramples on First Amendment rights by stigmatizing certain types of political speech by special-interest groups as out of bounds and worthy of prohibition by the Federal Election Commission.)

Concern that the FEC would extend McCain-Feingold restrictions to Internet speech arose after a federal judge ruled that political advertising on the Internet may well be subject to that law. A majority of FEC commissioners chose not to appeal the Internet-related portion of the ruling.

Bradley Smith, an FEC commissioner, stated that the ruling could well require federal regulators to examine whether to clamp down on weblogs. Smith told an interviewer the judge's ruling might apply to "any decision by an individual to put a link on their home page, set up a blog, send out mass e-mails, any kind of activity that can be done on the Internet."

Such connections could be interpreted as the type of campaign-friendly "coordinated activity" that McCain-Feingold prohibits. In such a situation, regulators would classify weblog content - in particular, links to campaign Web sites - as an in-kind political contribution.

Edward Morrissey, a conservative political blogger, wrote a letter to U.S. senators in which he explained what an absurd situation such topsy-turvy regulations would encourage.

If the FEC began regulating weblog content, he wrote, it would cause him "less legal heartache to convert my site to a porn blog and do nothing but post hard-core pictures all day long." As a result, he added, "in the twisted environment of the McCain-Feingold Act, that kind of Web site would enjoy greater First Amendment protection than my political speech."

Morrissey points out another potential problem. Morrissey is a staunch supporter of President Bush, but during the 2004 campaign season, Morrissey's weblog actually linked more frequently (for purposes of criticism) to the campaign site of John Kerry, the Democratic presidential nominee.

So, if McCain-Feingold were used to regulate political speech on the Internet, Morrissey's links would be classified by regulators as an in-kind contribution to Kerry's campaign (whose candidate Morrissey heatedly opposed), or else federal regulators would need to examine each link to determine whether it was intended in a favorable, hostile or neutral fashion. The situation, in short, illustrates the headaches and unfairness that speech restrictions would involve if extended to the Internet.

Several FEC commissioners have come forward to damp down fears of regulation of weblogs. But the judge's ruling still stands, and it is easy to see how regulation of online political advertising could, over time, move into broader restrictions on Internet comment.

Critics are right that Congress needs to consider amending federal statutes to address this concern. Otherwise, the potential would exist for a troubling intrusion by the federal government into a fundamental American right. "

Nor is the Omaha World Herald alone. From the Chicago Tribune in a news article:

"The furor has its origins in the 2002 McCain-Feingold law, which regulates campaign financing while exempting some online activity. But last September, U.S. District Judge Colleen Kollar-Kotelly ruled that the Internet exemption "undermines" campaign finance law, and essentially ordered the FEC to redraw its rules.

The case was filed in 2002 by Reps. Christopher Shays (R-Conn.) and Martin Meehan (D-Mass), both sponsors of the McCain-Feingold law. The lawmakers sued the commission because they thought the FEC exemption misinterpreted the campaign finance law through "loopholes that had allowed soft money to corrupt federal elections," according to court records. Kollar-Kotelly agreed, striking down the exemption.

Some critics have been upset by online activities that they see as end-runs around the campaign law. Watchdog groups have cited TV-style political ads that ran during the 2004 campaign but--because they aired online--were exempt from FEC scrutiny. Others noted that candidates have paid bloggers to write favorably about them.

Other issues are trickier. If a blog features a link to a campaign Web site--which can be a valuable political gift--is that an "in-kind contribution" to that campaign, or free speech protected by the 1st Amendment?"

The question here is not the text of the McCain-Feingold law itself, as antithetical to the Constitution, liberty and democracy as that law may be but rather the interpretation that will emerge ten Federal lawsuits down the road as overreaching Federal judges are goaded by hyperpartisan, elitist, activist-lawyers seeking advantage for their party at the expense of our ancient liberties. Rights in a free society are seldom abolished whole; the enemies of an open society prefer to erode them bit by bit.

McCain-Feingold needs to be repealed. No other solution will do.
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