Thursday, March 03, 2005

The coming legal superstorm against bloggers - Exhibit 6

Justin Levine over at Calblog has another outstanding article on the he coming legal superstorm against bloggers.

This is Exhibit 6 and discusses Federal Election commission regulation of political speech on the blogosphere:

Exhibit 6 in the coming legal superstorm against bloggers is getting a lot of attention and comments around the blogosphere. McCullagh even takes a page from this series of posts when he came up with the title of his article. (Probably a coincidence - but just maybe he's a calblog fan. Who knows?)

Of course, the notion of using the FEC to chill blogging was already foreshadowed by the earlier abuse of campaign finance laws against other aspects of the new media.

You can now add campaign finance laws to the arsenal of the coming legal superstorm, in addition to libel, privacy laws, and the various tentacles of intellectual property.

Those who think that there is not much to worry about since actual FEC prosecutions against bloggers are unlikely to succeed miss the point entirely. The goal of the legal establishment is to strangle the blogging baby simply by threatening pajama wearing bloggers with the notion of dragging them into a time consuming and costly legal battle - even if they know the outcome would eventually favor the blogger in court.

Most bloggers are individuals with no corporate or legal resources to back them up. So in the end, it will still be easier just to censor themselves in the face of litigious environment.

I have found that most people still refuse to recognize the broad-based asymmetirical war going on in this country against

the First Amendment. Congress might not pass laws explicitly prohibiting speech about specific topics or viewpoints, but they and the legal establishment have crafted various legal structures that effectively sensor free speech and communications by couching them in notions of "property rights" or ensuring "fair elections". Because the censorship is crafted through these indirect means using philosophical pillars that resonate with various factions within the conservative, liberal and even libertarian wings of politics, it has succeeded in advancing against a population that is only on guard against overbroad "time, place and manner" restrictions - the traditional battleground where First Amendment debates have been waged.

So the censorship battle in this country hasn't waned. It has actually greatly intensified in the past few decades, only people don't realize it since the modes of censorship have been outsourced to private special interests groups who are still able to use governmental coercion (i.e., courts backed up by Congressional mandates) to suppress information that they find troublesome.

No true "freedom of information" constituency has arisen since the usual political groups act as mere special interests when faced with questions of censorship in the new asymmetrical information war. (Republicans will still be happy to use FEC laws against GOP critics. Dems witll use them against Republicans. Conservatives will want to censor Michael Moore and Al Franken over trademark concerns (or at least be silent about such attempts), while Democrats will want to suppress potential dirty laundry using copyright schemes. Meanwhile, libertarians are split on the issue since many of them often can't think outside of the "personal property" box to understand the problems with equating "real property" with "intellectual property".

The end result - the coming legal superstorm against bloggers will continue...even if specific campaign finance laws are eventually rescinded.

[ Previous Exhibits: here (5), here (2-4), and here (1) ]

So, will Congress act to rein in this Rogue Federal Elections Commission?

Will the President reappoint Bradley Smith, FEC Commissioner whose term expires in April 2005? And will the President replace long-standing Democrats on the panel with new appointees?

Or will it be the Appeals Court who reinterprets the law on a subsequent case?

Time will tell the story!

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