The Democratic Chill

Bloggers of America, chill.
Reports of a Federal Election Commission plot to "crack down" on blogging and e-mail are wildly exaggerated.
First of all, we're not the speech police. We don't tell private citizens what they can or cannot say, on the Internet or anywhere else. The FEC regulates campaign finance. There's got to be some money involved, or it's out of our jurisdiction.

Perhaps the Democratic Commissar is familiar with the term chilling effect. From her use of the term, though, I don't think she actually understands what it means. First-Amendment jurisprudence has been that the government is prohibited from conduct that would have a chilling effect on free speech, whether that conduct actually restricts speech or not. So the government can't take down the names and addresses of everyone who writes a newspaper editorial; it might have a chilling effect.

And a chilling effect is exactly what we are looking at here. Regulation of internet speech should be off-limits precisely because that platform is available to everyone. Bloggers are not members of some journalistic elite, and they do not have access to expensive lawyers and local monopoly profits to defend their blogs against FEC lawsuits. If the FEC regulates blogs to any significant extent, bloggers will not be able to afford the legal expertise to comply, and many will choose to shut down rather than risk violating laws they do not understand.

That's the textbook definition of a chilling effect.

And the FEC considers non-monetary donations to be the same thing as finance. That means that donating a blogad to your candidate could be consdered a financial contribution, because the donation has value. (For an idea how much value, consider a typical deal: $15 / mo for a campaign of 24 months = $360. That's not peanuts, and if you also reposted their campaign material over that time you might have to count that as well. Didn't know that? Congrations, you're a free speech criminal. Getting a little chilly?

What if you're the Daily Kos, the top-tier leftie? $12000 per month to run a premium blogad on his site. Think Kos will be donating any blogads to his candidates? Probably not, since the value of that donation would exceed the limit even though no money changed hands. The libertarian-right's top blogger, Instapundit, brings in $3500 / mo for his top blogad. That's still over the limit in a single month. Little Green Footballs asks $600 / mo; run a donated blogad for two or three months and they get into trouble. And there are lots of people who would go over the maximum contribution limit over a long campaign if the value of their donated blogads is considered a donation.

And that's exactly what the FEC's Bradley Smith told us they were considering.

Posted on 2005-03-08 10:54:03.0 by matthew@triggerfinger.org

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