Freedom of Online Political Speech Threatened: Conservative Blogs on the Chopping Block with Congress’s DISCLOSE Act?
Posted By Vicki McClure Davidson on May 23, 2010
George Orwell's prophetic novel of government power and tyranny,
George Orwell, you may have misnamed your famed, frightening novel of a futuristic world where “Big Brother was watching.” Instead of 1984, advancing the year to 2010 may prove to have been a more prophetic choice.
From Hot Air, Congress about to limit political speech of bloggers?:
The same sloppy legislative writing that created so many unintended consequences in ObamaCare also plagues the DISCLOSE Act, the effort in Congress to tighten spending rules in the wake of the Citizens United decision — and that’s the generous take on the situation. Reason’s Bradley Smith and Jeff Patch warn that the perhaps-unintended consequences of legislative language will allow the FEC to regulate political speech online. The fact that media entities like the New York Times have specific exemptions built into the bill makes the intent, or lack thereof, rather murky:
Last week, a congressional hearing exposed an effort to give another agency—the Federal Election Commission—unprecedented power to regulate political speech online. At a House Administration Committee hearing last Tuesday, Patton Boggs attorney William McGinley explained that the sloppy statutory language in the “DISCLOSE Act” would extend the FEC’s control over broadcast communications to all “covered communications,” including the blogosphere.
The DISCLOSE Act’s purpose, according to Democratic Congressional Campaign Committee chair Chris Van Hollen and other “reformers,” is simply to require disclosure of corporate and union political speech after the Supreme Court’s January decision in Citizens United v. Federal Election Commission held that the government could not ban political expenditures by companies, nonprofit groups, and labor unions.
The bill, however, would radically redefine how the FEC regulates political commentary. A section of the DISCLOSE Act would exempt traditional media outlets from coordination regulations, but the exemption does not include bloggers, only “a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine or other periodical publication…”
In Citizens United, the Supreme Court explicitly rejected disparate treatment of media corporations and other corporations (including nonprofit groups) in campaign finance law. “Differential treatment of media corporations and other corporations cannot be squared with the First Amendment,” Supreme Court Justice Anthony Kennedy wrote for the majority.
No legitimate justification exists for excluding media corporations from regulations on political speech applicable to other corporations, unless the goal is to gain the support of editorial boards funded by the New York Times Co.
From Reason Magazine, From Banning Books to Banning Blogs — How the DISCLOSE Act will restrict free speech:
The DISCLOSE Act would ban U.S. subsidiaries from speaking if foreign nationals own 20 percent of a company’s voting shares. Mexican billionaire Carlos Slim owns a 7 percent stake in The New York Times Co.—yet the New York Times would not be restricted if other non-citizens owned 13 percent of the company’s stock.
The Times editorial board expressly advocates the election or defeat of candidates, acts of political speech worth thousands of dollars, yet it is exempted from similar regulations imposed on other companies wishing to speak out about candidates. The Times also writes unsigned, anonymous attacks, yet the DISCLOSE Act would compel the political speech and identification of nonprofit groups: a bulky, filmed disclaimer estimated to be 2-3 times longer than candidates’ disclaimers.
All this hasn’t stopped the Times and other dead-tree media outlets from enthusiastically endorsing the DISCLOSE Act. Perhaps the Times scribes wouldn’t be so rah-rah about these regulations if they realized they would give government the power to regulate political speech on the Web and determine which companies are “media”—meaning exempt from regulation—and which are “political”—meaning heavily regulated.
The House version of the DISCLOSE Act, expected to be marked-up next week, includes the definitions “communication” and “covered communication,” which differs from the term “public communication” adopted by the FEC in a 2006 rule exempting online speech from government control.
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