Commentary

Bloggers Beware

This article appeared on Reason.com on March 9, 2005

Bloggers were one of the big political successes of the 2004 election. This motley group of opinionated writers used their cyber soapboxes to attack and defend the presidential campaigns and the two major parties. Their websites offered a fresh look at politics and implicitly undermined the Establishment media that so many Americans have come to distrust. In other words, bloggers used freedom of speech to improve American democracy.

Naturally the federal government is about to come down hard on bloggers.

Here’s why. In 2002, Congress passed the McCain-Feingold campaign finance law which restricted political advertising by corporations and labor unions on television and radio. The Federal Election Commission—the agency charged with implementing McCain-Feingold—initially decided that Congress had not intended to restrict political speech on the Internet.

Last fall, a federal judge said exempting the Internet from the law’s restrictions on political speech would undermine McCain-Feingold. Now the FEC is back at it trying to figure out how to restrict political speech on the Internet.

If you care about freedom of speech, there are good reasons for concern. The FEC may conclude that allowing political advertising by campaigns and parties on websites will undermine the restrictions on ads in McCain-Feingold. Ads on the Internet would be a loophole to McCain-Feingold that the FEC should close.

But bloggers don’t necessarily work for a campaign or a political party and thus should not fall under McCain-Feingold, right?

Don’t be too sure. Bloggers often endorse candidates or parties in an election. Those endorsements are of value to the candidates and may end up being treated as a campaign contribution, subject to limits and disclosure. Bloggers may also contribute to a campaign by linking to a candidate’s website or republishing a candidate’s press release.

Of course, The New York Times can endorse candidates for office and promote their causes, and you might think that bloggers would enjoy the same First Amendment protections. But you would be wrong. The FEC has not given news sites or bloggers what is tellingly called “the press exemption” from campaign finance laws. What bloggers say and do may well fall under federal campaign finance restrictions.

History should give pause to those concerned about liberty on the Internet. New technology that threatens the political status quo quickly attracts Congressional regulation and restrictions.

Take the history of television in American politics. In 1968, three candidates—Eugene McCarthy, George Wallace, and Richard Nixon—challenged the entrenched status quo by spending large sums of money on television advertising. McCarthy’s spending drove the incumbent president Lyndon Johnson out of office. Wallace’s TV strategy brought him 14 percent of the vote and may have denied Democrats the presidency. Richard Nixon’s lavish spending on television helped him narrowly take the presidency from Hubert Humphrey.

In 1968, uncontrolled political spending on a new technology threatened the political status quo.

Congress acted swiftly to meet the threat. In the spring of 1969, members introduced a bill to limit campaign spending on television advertising. The bill became law in 1971 and went into effect the following year. Congress had, in the words of one member, “tamed the television monster.” Yet the “monster” in question was a threat only to those who held power.

Last year a relatively new technology shook up the political world. The upstart presidential candidate Howard Dean used the Internet to raise unprecedented sums that fueled his outsider campaign for the Democratic nomination. Bloggers brought down Dan Rather of CBS News, a titan of the old media, and offered uncontrolled sources of information and insight to voters.

In 2005, as in 1969, those who use this technology have to expect the status quo they are upending will fight back.

The upcoming effort to regulate and restrict the Internet thus seems as inevitable as it is unfortunate. Indeed, the effort to clamp down on the Internet will succeed absent resistance.

Someone said that a man with a hammer sees nails everywhere. Congress holds the hammer of McCain-Feingold, and its members see the Internet as a nail.