Bloggers' rights

Congress must confirm that First Amendment still has meaning

Rocky Mountain News

Monday, March 31, 2008

Maybe you're thinking of setting up your own blog to comment on the affairs of the day. By all means, join the fray. But please make sure you don't run afoul of a judge who considers your opinions a political contribution that should be regulated by federal campaign law.

We're not joking. This nation that so enshrines free expression still hasn't decided for certain whether bloggers should have the same leeway that, ahem, newspaper editorials and other traditional forms of opinion enjoy. Fortunately, Congress will soon have an opportunity to give Web blogs more durable First Amendment protection.

In the coming days, Rep. Jeb Hensarling, R-Tex., is set to introduce The Blogger Protection Act of 2008. The bill would enact in law regulations that were handed down two years ago by the Federal Election Commission regarding bloggers and campaign finance laws.

The FEC has twice attempted to protect Internet users from the strictures of campaign law, as it has exempted newspapers, broadcasters and other more traditional media outlets. But because these rules have been reversed once by a federal judge and could be overturned in another legal challenge or by a future FEC, a statute is needed. We hope the Blogger Protection Act becomes law.

The reason the FEC got involved to begin with was - you guessed it - the deeply flawed McCain-Feingold campaign finance law. That act regulates "anything of value used to influence an election," including "public communications." This lets the government determine whether a particular form of communication is either a contribution or an expenditure and subject to the limits of the finance law.

So does that mean a blogger who posts some snarky comment about John McCain's age or Hillary Clinton's hairdo is making a contribution to an opponent's campaign? How would such a message be valued in monetary terms? By the number of hits the page receives? By the number of comments posted by readers?

It shouldn't be. And in 2002, the FEC seemed to resolve the problem when it exempted from the law pretty much any information transmitted over the Internet.

But several incumbent members of Congress sued to have those regulations overturned, and in 2004 a federal judge agreed. She ruled that exempting Internet communications - including blog postings and e-mails - "severely undermines" the intent of the law. That information is similar to advertising, the judge said, and could be regulated.

Then-FEC Chairman Bradley Smith warned that the decision would stifle online speech because a judge could force the poster of otherwise innocuous blog entries to both disclose his identity and formally register as a political committee, controlled by the dictates of McCain-Feingold and any state election laws.

So the FEC modified its regulations in 2006. Those rules consider paid advertising posted on Web sites "public communications" subject to campaign finance restrictions and require political parties and organizations to disclose their identities when they advertise.

Other Internet communications, including blog postings, links to campaign information or news stories and e-mails sent by individuals (but not campaigns), have full First Amendment protection. Like newspaper editorials and opinion columns, they are not considered campaign contributions.

Yet even those rules face legal challenges. For example, in 2006 California playwright Michael L. Grace set up a satirical blog taking aim at Rep. Mary Bono, R-Calif., and linked to it through his Blogger and MySpace Web pages. Last year Bono asked the FEC to declare the blog an in-kind contribution to her Democratic opponent in the 2006 election.

The FEC correctly rejected the request based in part on its own regulations. But a commission with members who were less sympathetic to free speech could have overturned the rules and sided with Bono.

The Blogger Protection Act would tell the FEC - not to mention the courts - that such blatant attacks on political expression violate the First Amendment, and cannot prevail.

• March 31, 2008

  9:30 a.m.

  Suggest removal

  Truth writes:

  It's pathetic that the government has overstepped its bounds to the extent that the Blogger Protection Act is considered necessary, when a simple reading of the United States Constitution should suffice any judge of sound mind. It's the same reason that the rights enumerated in the second amendment are constantly under attack, and that rights protected by the ninth and tenth amendments are these days ignored.

• March 31, 2008

  6:12 p.m.

  Suggest removal

  geriatric1943 writes:

  What we need to do is find out all the Congressmen who brought the law suit. These are the ones that we need to focus on. I bet is surprises most that it is a Republican that is going for a bloggers bill of right.

• March 31, 2008

  9:50 p.m.

  Suggest removal

  titancain writes:

  When a blogger states that Obama attended a Madrassa, they should be sued. Bloggers think their journalists, but refuse the responsibility.