FEC Regulation of Bloggers Update
In the aftermath of the “blogger firestorm” generated by FEC Commissioner Bradley Smith last week, there are now some critical assessments concerning this issue. Our thanks to Instapundit, for pointing to the latter two writers.
Three well known personalities have written post-appraisals concerning whether or not there could, or should be blogger regulation by the FEC.
Hugh Hewitt, syndicated radio talk show host, and Professor of Constitutional Law at Chapman University Law School says,
“I have been teaching the First Amendment for a decade, and it isn’t going to happen because it would be patently and obviously unconstitutional to classify the content of a political blog –which is essentially a cyber-newspaper– as within the purview of the FEC.”
His full statement entitled, Lions, and tigers and bears, oh my!, can be read here.
Richard Hasen, is a professor specializing in election law at Loyola Law School. He also writes the Election Law Blog. His article entitled, Should the FEC Regulate Political Blogging? can be found here. In this article he says the following,
“As a matter of policy, bona fide on-line journals and political bloggers such as Hugh Hewitt, Andrew Sullivan, or Joshua Marshall, should be treated the same as the New York Times and David Brooks.”
and again,
“Online corporate-owned journals like Salon.com, however, do not appear to fall within the literal ambit of this “media exemption,” nor do any blogs that are owned by corporations, because the exemption on its face applies only to broadcasts, newspapers, and periodicals.”
Eugene Volokh who teaches free speech law, copyright law, the law of government and religion, and a seminar on firearms regulation policy at UCLA Law School disagrees with Professor Hasen above. Professor Volokh is a contributing writer for The Volokh Conspiracy found here, as well. Writing in his article entitled, FEC and Blogging: found here, he states,
“I think that, literally, blogs are periodicals. They are published fairly regularly, rather than intermittently, and they reach more than a few people; that makes them “periodical publication[s].” (The relevant exemption comes in 2 U.S.C. sec. 431(9)(B), “The term ‘expenditure’ does not include–(i) any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication . . . .”)It would be good to clarify FECA to make clear that Weblogs and online magazines are exempted. But I think that, properly — even literally — interpreted, “other periodical publication” already includes blogs (except perhaps ones that publish intermittently and very rarely).”
The conclusion inferred by these writers, simply means political bloggers, and other bloggers, should not fall under FEC regulation. This conclusion, does not clarify whether the Campaign Reform Act of 2002 (McCain-Feingold) is a bad law, or whether it should be repealed.
Time will tell, and to be sure, at some point in the future will, more than likely, be tested in court. But for now at least, we can exercise our freedom of speech by means of the written word, through blogging.
