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March 10, 2005
Chris Nolan: Regulate Me Before I Lose Control

With the pending FEC regulations on Internet politicking percolating through the blogosphere, the prevailing wisdom goes two different directions. Either the decision by Judge Kottar-Kotelly to strip the Internet of its BCRA exemption portends even more encroachment on political speech by regulating bloggers to death, or the threat has been overblown and the FEC wouldn't dare to try it. No one in the blogosphere has argued on behalf of greater regulation.

That is, no one until Chris Nolan wrote this piece for eWeek. Nolan argues that bloggers have become so influential in politics that regulating us should be a high priority for the FEC, in order to prevent our interference with campaign finance reform:

It's silly to think Smith's warnings will all come to pass and that the FEC will attempt to figure out, for instance, the actual monetary "value" to a campaign of a hyperlink from a blogger or anyone else for that matter.

And the FEC is unlikely to craft brand spanking new regulations for online advertising, completely different from those that already cover hardcopy counterparts.

But it is looking into how bloggers are compensated by campaigns as part of an exploration into how campaigns coordinate their messages with blogs or other outside organizations.

At this point, a bit of disclosure on my side is in order. Since I run a political Web site, these rules could affect how I run my business.

And many of the people I have spoken to for this column about the FEC, its efforts and the efforts to amend the commission's rules have purchased ads on my site or provided the site with the very kind of support the commission may be looking at: hyperlinks and referrals.

Nolan appears mostly concerned with bloggers who are compensated by political campaigns, such as Markos Moulitsas and Jason Van Der Beek, but the two are not related. First, one would have to establish whether the blogging was what initiated the compensation or other services separate from the blogging. Moulitsas, for instance, raises funds as an activity outside of his blogging, although many campaigns bought ads on his site. Essentially, that puts money in Moulitsas' pocket, not the campaign; after all, campaigns don't have specific spending limits per resource, only contribution limits. The FEC would have to judge what Moulitsas did on his blog as to whether he wrote it out of conviction or meant it as a campaign contribution, and then would have to determine a scale to judge its value as an in-kind contribution.

It's thought-policing of the worst order, and the BCRA inevitably pushes towards that end. The FEC will have the power to determine whether or not bloggers, especially those who are politically active, engage in speech or cashless contributions. Moreover, the language in Shays-Meehan v. FEC ominously portends that the burden of proof will rest with the blogger, not with the FEC, to prove the negative: that he or she did not intend their speech to be a campaign contribution.

As I wrote earlier, that opens the doors for tremendous pressure on bloggers to simply stop writing. The FEC will have to react to complaints, which would be easily influenced by swarms targeted at political opponents. My friends at Power Line have faced numerous accusations, even in our local newspaper, of receiving secret funding from the Republican Party and GOP activists -- all untrue. One of them, John, has had a campaign of scurrilous lies and crank phone calls to his family and his office intended on intimidating him into silence. If these people had an opportunity to file complaints against bloggers they target, can anyone doubt that people like John or myself would find ourselves overwhelmed with the efforts of defending ourselves and producing financial records to prove the negative?

Nolan attempts to excuse her retreat from free speech by using her political website to establish her blog bona fides. However, Nolan also has a column in eWeek, which gives her the mass-media exemption written into the BCRA. When she wants, she can use her eWeek column to promote her political views as she sees fit, without any restrictions, regardless of whether she works on a campaign or not. Why does she want to restrict that right for the rest of us?

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Posted by Ed Morrissey at March 10, 2005 5:07 PM

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» Update 4: Blogging Regulations!?! from Air Force Voices
Winfield Myers (Democracy Project) has a great roundup of commentary regarding the FEC and its not so subtle (anymore) assault on free speech. Captain Ed also has a good post on potential targeting of bloggers and thought policing where the [Read More]

Tracked on March 10, 2005 5:57 PM

I suppose it had to happen sooner or later. A blogger has come out in favor of new regulations to stifle political speech in the blogosphere: Republicans, particularly conservative activists, have argued with some limited success that campaign finan... [Read More]

Tracked on March 10, 2005 6:10 PM

» Big Brother vs. Bloggers, Round 7 from Cyber-Conservative
Captain Ed again does his usual great job on this issue. First, in this post, he points out two MSM columnists who believe that blogs deserve the same protection as the rest of the media. Then, later today, he points out that Chris Nolan's recent col... [Read More]

Tracked on March 10, 2005 9:09 PM

» It's speech, dammit! from Vote for Judges
In its McConnell decision, the Supreme Court turned its back on the First Amendment. All speech is at risk until we fix the courts. [Read More]

Tracked on March 11, 2005 10:10 AM

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