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Should the FEC Regulate Political Blogging?: Rick Hasen offers some thoughts. I am no expert in this stuff, but the recent comments of FEC Commissioner Bradley Smith that the FEC might start to regulate blogging sound to me more like parts of a media strategy than a prediction. Smith is strongly opposed to campaign finance regulation, and suggesting that the FEC might start regulating lots of bloggers is a surefire way to get the blogosphere in the mood to oppose campaign finance regulation.

Related Posts (on one page):

  1. Optional Speech Protections:
  2. FEC and Blogging:
  3. Should the FEC Regulate Political Blogging?:
FEC and Blogging:

I wanted to echo Orin's recommendation of Rick Hasen's item on the FEC and blogs. Rick is a leading election law scholar, and a very thoughtful fellow, as well as the leading election law blogger. He tends to be more pro-regulation than I am, but I find his work to be much worth reading.

One small disagreement I have with Rick's piece: He writes that "As a matter of policy, bona fide on-line journals and political bloggers such as Hugh Hewitt, Andrew Sullivan, or Joshua Marshall, should be treated the same as the New York Times and David Brooks" (I agree so far) but then says that "Online corporate-owned journals like Salon.com, however, do not appear to fall within the literal ambit of [the] 'media exemption' [to restrictions on corporate speech about candidates] nor do any blogs that are owned by corporations, because the exemption on its face applies only to broadcasts, newspapers, and periodicals."

I think that, literally, blogs are periodicals. They are published fairly regularly, rather than intermittently, and they reach more than a few people; that makes them "periodical publication[s]." (The relevant exemption comes in 2 U.S.C. sec. 431(9)(B), "The term 'expenditure' does not include--(i) any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication . . . .")

It would be good to clarify FECA to make clear that Weblogs and online magazines are exempted. But I think that, properly -- even literally -- interpreted, "other periodical publication" already includes blogs (except perhaps ones that publish intermittently and very rarely).

(Note that some dictionaries define "periodical" as meaning less often than daily, but that's not the majority definition, and it's not apt in this context, since "other periodical publication" shortly following "newspaper" suggests that newspapers, many of which are daily, are periodicals, and therefore that "periodical" includes daily publications. Also, one can argue that "periodical" requires a fixed period between items, such as roughly 24 hours or 7 days, and that therefore blogs that sometimes have posts 5 minutes apart and sometimes 15 hours apart don't qualify. But I don't think that periodical requires such fixed intervals -- publishing at least once a day should be as periodical as publishing exactly once a day at a fixed time -- nor would it make much sense.)

Optional Speech Protections:

The First Amendment protects speech, and the Supreme Court has made clear that it protects Internet speech as well as offline speech. Under the logic of the Court's First Amendment cases, bloggers should be as protected as larger media speakers (whether they're offline larger media, or online, such as Slate or Salon).

But First Amendment protections have their limits. For instance, it's not clear whether the First Amendment lets journalists refuse to testify about their confidential sources; some courts of appeals say yes and some say no. What's more, it is clear that this journalist's privilege, if it exists, has its limits: If the sources' identities are really necessary for a criminal case or perhaps even a civil trial, journalists can be ordered to turn them over.

Likewise, the Supreme Court has held that corporations may be barred from spending money to support or oppose political candidates; I think that decision was wrong, but the Court did decide this. And the decision's logic suggests that even media corporations could be barred from engaging in such speech.

That's where optional speech protections come in: It turns out that many states have statutes (or state constitutional provisions) that do protect a journalist's privilege. The California statute, which is at issue in the recent Apple trade secret litigation, provides very broad protection: It categorically prohibits courts from holding any "publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication" in contempt for refusing to name his sources, no matter how important the information may be. Likewise, federal campaign law, which generally bans certain commentary on candidates by corporations, has a "media exemption" that lets "any broadcasting station, newspaper, magazine, or other periodical publication" comment about candidates even if it is owned by a corporation.

I'm going to be writing an article in the next few months on optional speech protections, and especially how they apply to the new media. But the short point I want to mention here — both as to the California journalist privilege and the election law media exemption — is that many of the laws already cover blogs and other online media sources. Even a purely literal reading of the laws gives us that: The law isn't limited to newspapers or magazines, but covers all "periodical publications." (This would also be the proper reading of the proposed Free Flow of Information Act, discussed by Michelle Malkin.)

The law doesn't apply to one-shot publications, such as books. (Maybe it should, but it doesn't.) It doesn't apply to sporadic publications, such as occasional newsletters or posts, with some unpredictable number of months elapsing between each. It doesn't apply to communications to a few acquaintances, which probably don't qualify as publications. But if someone posts items every day, or even several times a week, and reaches a significant number of members of the public, then he's producing a periodical publication. That's just the literal, and sensible, meaning of those provisions.

I realize that the drafters of these laws probably didn't envision the Internet, which wasn't a major communications medium at the time. But they used particular language that is not inherently limited to words on paper. The literal meaning of the language does include all periodical publications; unless it's changed, that's how it should be read.

Nor is there, I think, any sound policy reason to read the words more narrowly, no reason to distinguish The New Republic from Slate.com, or a newspaper columnist from Instapundit. But I'm not resting the argument on policy alone: Here both the text and the policy cut in favor of equal protection for speech by offline publications, online professional publications, online amateur publications, and things in between.

Now I'm not positive that courts will in fact take such a view -- I'm arguing here that it's the right interpretation, but I realize courts may disagree with me. It makes sense to urge drafters of news to be more explicit, and to make clear that online media as well as offline media, and amateur media (and semipro media) as well as professional media, are covered. But if one can't get that, for instance because the statute has already been enacted and simply covers "newspapers, magazines, and other periodical publication," then one should argue that the statute does by its terms cover blogs, and one would be correct to so argue.

Finally, let me dispose of two technical objections, which I mentioned in an earlier post: (1) Some dictionaries define "periodical" as meaning less often than daily, but that's not the majority definition, and it's not apt in this context, since "other periodical publication" shortly following "newspaper" suggests that newspapers, many of which are daily, are periodicals, and therefore that "periodical" includes daily publications. (2) One can argue that "periodical" requires a fixed period between items, such as roughly 24 hours or 7 days, and that therefore blogs that sometimes have posts 5 minutes apart and sometimes 15 hours apart don't qualify. But I don't think that periodical requires such fixed intervals — publishing at least once a day should be as periodical as publishing exactly once a day at a fixed time — nor would such a definition make much sense.