Online “Freedom of Speech Carveout” Bill and the Blog Privilege
Today in the House of Representatives, Congressman Jeb Hensarling (R-TX) introduced a companion piece of legislation to Senate Minority Leader Harry Reid’s bill (S.678) to exclude the Internet from the definition of ‘public communication’ in the Bipartisan Campaign Finance Reform Act of 2002.
Glenn Reynolds thinks we should all “get behind” it. It’s hard to disagree, at least in the narrow sense that it would exempt the Internet from Federal Election Commission Rulemaking under under McCain-Feingold.
But. In a way, I can’t think of anything worse.
I am in an alumni discussion group where a friend was just arguing, somewhat pedantically, that “it’s not unconstitutional until a court says it is.” Well, McCain-Feingold is unconstitutional, and I say it is. (I’m hardly the only one.) Right now blogs and other Internet media are the most dynamic and, arguably, influential voices of democratic commentary and exercises of real free speech. That may not always be so, as hard as it is for bloggers and the like to recognize that.
For example, consider that websites on the Internet are broadcasts. You build it and — maybe — they will come. The Internet is increasingly becoming, however, a conduit for “narrowcasting” — the delivery of individually customized content. Will the “Internet exception” apply then? Well, under the proposed new language — “Paragraph (22) of section 301 of the Federal Election Campaign Act of 1971 (2 U.S.C. 431(22)) is amended by adding at the end of the following new sentence: ‘Such term shall not include communications over the Internet'” — maybe it would. Maybe. But we neither know what form tomorrow’s free speech will take, nor how yesterday’s free speech may or may not yet be adapted to become a “communication over the Internet.”
In fact, there is no principled reason to exempt the Internet from these provisions. If Harry Reid weren’t so highly principled, I would think he’s merely trying to curry favor with the Blogosphere. But in fact, he’s doing something slightly different, and worse: He’s offering a separate peace so that the repressive McCain-Feingold laws, bought and paid for by partisan groups with a partisan agenda, can live on.
I am not so sure we should “get behind” this law and thereby take the pressure off the Net and the bloggers, who are the ones who should be fighting the good fight to rid all media of the special treatment given to “the press” for its commercial speech (called “news” and “editorial” content).
That doesn’t mean I’m not in favor of bloggers getting the same benefits — and responsibilities — as “journalists,”as I have argued before , and today, too, in commentary on Corante to a posting by Alan Wexelblat. I am. I just think everyone should get them — or get them back. Everyone. And I am afraid that if the pressure is off bloggers, we’re more, not less, likely to continue down the path to free-speech hell.