March 31, 2008

Rocky Mountain News Endorses The Blogger Protection Act Of 2008, And You Should Too

Freedom of speech may cost you dearly if you blog--you could find yourself subject to campaign finance law regulating "public communications."

Fortunately, in a surprising editorial from an MSM source, the Rocky Mountain News endorses the forthcoming Blogger Protection Act and addresses why, with the First Amendment, it should even be needed:
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.
The fact that the issue remains unresolved is most troubling, but since this has effects for all corners of the blogosphere, both left and right, it should be easy to build momentum for the bill.

What is amazing is that we need to debate this at all. The FEC and the courts have no place in regulating politically-related speech on blogs. We applaud the RMN's lead in bringing awareness of the issue, at least for Colorado's political community and especially its bloggers.

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