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.]