Then you’re gonna have to ban this blog

CNET has an interview up today with Brad Smith, the contrarian commissioner of the Federal Election Commission. Smith warns that an adverse judicial decision from last fall has forced the FEC to begin considering how it’s going to extend McCain-Feingold to the Internet. If Congress doesn’t step in, Smith says, the resulting regulations could extend all the way to what links a person places on his blog to what copy he sends out to an email list.

McCain-Feingold was bad news from the beginning, but its blatant violations of the First Amendment were somewhat hidden from individuals because they applied to coordinated activity, monetary donations, political organizations, and the mainstream press. Now that the online publishing revolution has empowered the individual and blurred the distinction between press and private citizen (as if there ever should have been a distinction!), extending the law to the Internet will demonstrate how restrictive it really is.

We can hope that Congress will act to prevent this, but I wouldn’t hold my breath waiting for the establishment to pass a law saying they want less control over political speech. The judiciary might be a better bet, but the Supreme Court dropped the ball on the original challenge to McCain-Feingold and a test case might not arise until well into campaign season. Even with a positive outcome, having to deal with the FEC’s arcane regulations or facing harassment from political opponents could have a chilling effect on online speech.

[Hat tip to BoingBoing for the link and to Unexpectedly Sober for the inspiration for the title.]

[Update 3/5/05: Tim Lee blogs about another case of law struggling to adapt to the new online media. Should bloggers possess the same right to protect their sources’ anonymity as the traditional press enjoys? A California court seems poised to say no.]


4 thoughts on “Then you’re gonna have to ban this blog”

  1. I’m so proud to have inspired the title of a blog entry on censorship. Now if only the song can spread to all advocates of censorship so they will realize the error of their ways. This is indeed a disturbing idea, the thought of governing what links a person can post, which would inevitably spill over into what they actually post. *sigh*. I think it’s time we just did away with every organization whose name begins with “Federal” and ends with “Commission.”

  2. I’m sure Mike has the mp3.

    I support portions of McCain-Feingold. I think the ban on soft money was a good thing….partly b/c I still don’t buy (rim shot) the claim that money is speech.

    But the restrictions on Independent Advertising are disturbing. I’m really surprised that the Supreme Court upheld that since they struck down something very similar in Buckley v. Valeo. An ad is CLEARLY speech…and it is the speech of the maker of the ad. (And ad created by a campaign committee…even if made with money of doners….is the campaign committee’s speech.)

    Besides, with 527s, the independent ad thing proved useless.

    Application to the Internet is disturbing precisely because the Internet is not as dominated by a select group of rich interests. As Jacob says, it’s empowering the individual. Which is supposed to be what campaign finance reform is all about. Even as a supporter of campaign finance reform in the abstract, I find this to be a mockery of it.

  3. I don’t find this to be a mockery of campaign finance reform so much as it is the law’s natural conclusion. For as often as well-meaning reformers like to say thats it’s about giving power to the people, it’s too often been used by entrenched politicians to quash grassroots efforts and hamper challengers. Brad Smith has a hell of a lot of stories to tell about how professional campaigns use complaints to the FEC as a club against the opposition. For a taste of those stories and further discussion of the law, checkout this interview with Smith from Reason Magazine.

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