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Free Speech: A dangerous Precedent (Update)
Posted by: McQ on Tuesday, July 24, 2007

File this under "not well thought out". Or, if you prefer, "stupid". David Freddoso at "The Corner" brings you up to speed:
The proprietor of this blog claims that he has filed an FEC complaint against Daily Kos. Supposedly, this won't fly, based on earlier FEC rulings, but this is nonetheless an outrage against the First Amendment that every conservative should fight vigorously. Freedom of speech — especially political speech — is our God-given right, as the founding documents of our nation attest.
Not just every conservative, but every American who believes free speech is a right and government has no right to interfere. It's that "Congress ... shall make no law..." part of the amendment that leaves little to the imagination or to interpretation. Yet here we have a blogger, of all people, inviting the government, in the form of the FEC, to investigate another blogger for heaven sake.

The blog in question is BlogCritics and they argue the following:
[Daily Kos] surely spends at least $1,000 per year in hosting and based on what they charge (and get) for advertising, their support of candidates is certainly worth over $1,000 per year. Lastly, their self-identified purpose is to influence elections in the Democrats favor. They fit the criteria.

Some will argue that this is a slippery slope that will snare all bloggers. First, most bloggers aren't organizations. Second, most bloggers are read by like 3 people and their posts are certainly not worth $1,000. Third, most bloggers don't exist for the primary purpose of electing certain people to federal office.

A better question to ask is can a political committee avoid campaign regulations by simply organizing in the form of a blog? Surely not.
IOW, ignore the free speech implications, most of you won't be effected. I can't think of a sillier or more dangerous argument. Obviously I am not a fan of the DailyKos nor is there much on that blog I'd identify with philosophically or politically. And it is true that Kos has flatly stated he's there to influence elections in favor of the Democrats. But as Freddoso says, "good for him". That's America. Or at least it should be.

This attempt to stifle Kos and bring in the FEC to do so is as wrongheaded as it can be and something, if it were to actually succeed, which could have profound and negative effects on political free speech and the internet. I urge BlogCritics to rethink this and withdraw their complaint immediately.

UPDATE: James Joyner makes an excellent point:
Still, it’s unclear to me why activists banding together on an Internet Web site should have any more free speech rights than those who do so in a meeting room somewhere. As outrageous as this filing is, it’s only possible because of an outrageous law that allows partisans to stifle the free speech rights of those they disagree with on the basis of “cleaning up politics.”
Or said another way, we shouldn't even be discussing this because it shouldn't be a problem even for those not on the internet.
 
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Previous Comments to this Post 

Comments
You call it "stupid" and "not well thought out"

Others may call it "fighting fire with fire" (cough cough *fairness doctrine* cough cough)



 
Written By: shark
URL: http://
Isn’t it possible that this is a case of reductio ad absurdum? If they can bring a case and it is thrown out, won’t that set legal precedent?
 
Written By: Trey
URL: http://
Remember the early days of blogging in the aftermath of 9/11? Remember Dawn and Eric Olsen? They were famous — constantly linked by Instapundit and others — for about five seconds until it became clear that Dawn was a vicious paranoid and exhibitionist, and Eric a grubby hustler eager to turn blogging into cash. Notice nobody ever links to, or mentions them anymore?

This is why.
 
Written By: Paul Dubuc
URL: http://
Isn’t it possible that this is a case of reductio ad absurdum? If they can bring a case and it is thrown out, won’t that set legal precedent?
Doubtful. It will simply point out the FEC doesn’t have that power. Then all Congress has to do is legislate the power to the FEC. I’d prefer not to give them ideas (although in this case it is one of their oxen being gored).
 
Written By: McQ
URL: http://www.qando.net/blog
speaking of dumbass attempts to restrict free speech, any comment on Paul Cella’s desire to start using sedition laws against Muslim religious preaching?
 
Written By: Francis
URL: http://
Way to misrepresent things, Francis. Paul Cella only wanted to make preaching Jihad part of the sedition laws, NOT preaching Muslim religion.
 
Written By: Steverino
URL: http://steverino.journalspace.com/
That said, sedition laws haven’t really gone anywhere in this country because of 1st Amendment concerns.
 
Written By: McQ
URL: http://www.qando.net/blog
please define jihad.

also, note Cella’s own comments on his post
In my view, our hypothetical ["Jihad Rocks"] tee-shirt-wearer at least ought to be made aware that he might be vulnerable to a sedition prosecution. Maybe he wins his case, but he sure runs a stupid risk.

...

But it is difficult to see why a prosecutor would bring charges against an obviously peaceful Muslim

...

I will leave it to Muslims to decide where the doctrine of Jihad fits in their religion. I will not back down, however, from saying that it is a wicked and intolerable doctrine which ought to be removed from the protection of our laws.

...

The target of this law is primarily the recruiters and agitators: those who aim to inspire others to join the ranks of the Jihad. The Flying Imams and the Cartoon Demonstrators and the CAIR propagandists. To talk specifics for just a moment, I would be happy to see CAIR put out of business completely by such a law, or at least subject to much more severe restrictions.

...

[as to how his proposal differs from hate crime laws]

(3) Primarily because of its gravity as a national security issue. Put otherwise: because organized disloyalty is an enduring political problem, and must be dealt with lest it fester into something more sinister.
Is there any way to reconcile what he writes with the First Amendment?

Also, once you allow for content-based restrictions on religious speech, expect that the next version of the law will restrict Dominionist Christian preaching. Between McVeigh and the Branch Davidians, there’s ample evidence to demonstrate a risk of terrorism that must be suppressed.
 
Written By: Francis
URL: http://
I’m not too sure that this attempt is wrong.

I was shocked, really shocked, [no pun or satire here] that Kos had the stated intention of his blog to "elect Democrats".

Frankly, I thought he had set himself up for a big regulatory buzz saw.

I’ve seen issue groups with a lot less clout that Kos in a sh*tload of trouble for chartering a bus trip. Just how Kos thought (or maybe he didn’t) he could "get away" with this sort of thing shows a real naivety on his part.

My bet is that if Kos ever became a real burden to the DNC et al, that this sort of charge would show up at the door of the FEC (and made to look like it came from the RNC).

If I were Kos (and thank the Lord that I’m not) or any other equally naive blogger or activist, I would do a bit of legal restructuring to make this matter moot.
 
Written By: Neo
URL: http://
Francis, none of those quotes were from the post you linked to, the one where Cella clarifies his position.
Is there any way to reconcile what he writes with the First Amendment?
If you look at the post where he clarifies himself, it’s quite easy to reconcile it with the 1st Amendment. No one, under either the free speech or the free exercise clause, may advocate violent overthrow of the government.
Also, once you allow for content-based restrictions on religious speech, expect that the next version of the law will restrict Dominionist Christian preaching.
Not the same thing, and you’re using the "slippery slope" fallacy. Jihad is specifically called out as advocating the violent overthrow of the government. That doesn’t apply to Dominionist Christians, or any other sect not preaching violent overthrow of the government.

Really, Francis, this is a very poor attempt on your part.
Between McVeigh and the Branch Davidians, there’s ample evidence to demonstrate a risk of terrorism that must be suppressed.
Just what acts of terrorism did the Branch Davidians commit? As I recall, they pretty much kept to themselves.
 
Written By: Steverino
URL: http://steverino.journalspace.com/
I dispute the excellence of the Joyner point:

Still, it’s unclear to me why activists banding together on an Internet Web site should have any more free speech rights than those who do so in a meeting room somewhere

I do not claim to be conversant with every subtlety of McCain-Feingold, but... the activists in the meeting room are free to gab to their hearts content; it is only when they collect donations and try to buy television time that they encounter problems.

And I bet the Kos Kidz would have similar problems if they tried to collect dues and buy TV ads.

If the chatty activists tried to organize a blog and promote their views there, they would be free to do so (or so I thought).
 
Written By: Tom Maguire
URL: http://
Neo, you don’t know what you’re talking about. This issue has already been settled by the FEC. Sites from across the political spectrum (including DailyKos and RedState) banded together when this issue was raised in 2005, and they secured an advisory opinion from the FEC making it clear that blogs, even highly-partisan blogs, fit within the "press" exception to the regulations.

This complaint is not only stupid, it’s frivolous.
 
Written By: Anonymous Liberal
URL: http://www.anonymousliberal.com
And I second Tom’s comment.
 
Written By: Anonymous Liberal
URL: http://www.anonymousliberal.com
First, let me point out that this new piety, this new reluctance to engage in leftist vitriol, from the very person has defined the phrase for the last couple of years, may in fact be explained by this FEC suit, and the light being shed on Kos and his drolling band of idiots.

Secondly, .....does anyone think the reverse would not have happened at some point during the campaign?
That some Democrat wouldn’t have tried a suit against some center to right blogger?

And finally, let’s examine the idea that this lawsuit is based upon the assertions of Daily Kos being a Democrat blog, incidental to kicking Cindy Sheehan off the site. After all, one can be overly leftist, or rightist for that matter, without being specific to one party or another. When Kos crossed that line, vis’a’vie’ Sheehan, is when he got himself into trouble. His mouth got too big. So, he’s busy telling everyone else to ’cool the vitriol’ for reasons of self-preservation.








 
Written By: Bithead
URL: http://bitsblog.florack.us
and they secured an advisory opinion from the FEC making it clear that blogs, even highly-partisan blogs, fit within the "press" exception to the regulations.
There is a major difference between being "highly partisan" and being "dedicated to electing democrats", particularly from a legal perspective. I suggest that line got crossed in his reaction to Sheehan.


 
Written By: Bithead
URL: http://bitsblog.florack.us
I do not claim to be conversant with every subtlety of McCain-Feingold, but... the activists in the meeting room are free to gab to their hearts content; it is only when they collect donations and try to buy television time that they encounter problems.
Why? IF the same thing can be done by activists on-line, why shouldn’t it be able to be done by activists in a room ... that, as I understand it, is Joyner’s point.
 
Written By: McQ
URL: http://www.qando.net/blog
Anonymous Liberal:

Which part is incorrect ?

If Kos has already made this moot, then nothing I said is wrong.
If Kos hasn’t made this moot, then nothing I said was wrong either.
 
Written By: Neo
URL: http://
Neo, this is what I was taking issue with:
Just how Kos thought (or maybe he didn’t) he could "get away" with this sort of thing shows a real naivety on his part.
Kos thought he could "get away" with this because he’s not doing anything illegal. These issues have all been hashed out already.

And bithead, the advisory opinion makes clear that it’s okay for blogs to explicitly advocate for one party. It doesn’t matter what you say on your site. All that matters is that you are "not owned or controlled by any political party, political committee, or candidate."
 
Written By: Anonymous Liberal
URL: http://www.anonymousliberal.com
I support the complaint in that it might force the issue and have restrictions and regulations removed and clarified.
 
Written By: abw
URL: http://abw.mee.nu
Kos thought he could "get away" with this because he’s not doing anything illegal.


But in fact he is doing something illegal, and by means of the law that he was pushing down our throats for so long. This is where McQ and I differ, though I agree with this point in sentimental terms; He regards it as a dangerous precedent. I agree that it is dangerous, however, I suggest rather that the president has already been set, and this is merely equality of application.

Equal justice under the law, and all that.
 
Written By: Bithead
URL: http://bitsblog.florack.us
Arrg. Now, context errors in the speech to text. (Sigh) Needs more ram, I guess.
 
Written By: Bithead
URL: http://bitsblog.florack.us
’the advisory opinion makes clear that it’s okay for blogs to explicitly advocate for one party. It doesn’t matter what you say on your site. All that matters is that you are "not owned or controlled by any political party, political committee, or candidate."’

Idea: Create a false front blog for a party or individual. Let donors know that they can contribute money to that blog in the way of advertising to said site, which will then produce Youtube ads for candidates, etc.
 
Written By: Harun
URL: http://
Media Matters - I guess my idea already exists.
 
Written By: Harun
URL: http://
I’m fairly sure we know what Feingold would say, given its his party who support structure is being questioned. But I wonder if anybody’s bothered to ask McCain as regards the intent of their miscreation?
(Chuckle)
 
Written By: Bithead
URL: http://bitsblog.florack.us

 
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