Mimsy Were the Borogoves

Editorials: Where I rant to the wall about politics. And sometimes the wall rants back.

Free speech restrictions always lead to more

Jerry Stratton, April 7, 2005

Richard L. Hasen at FindLaw’s Writ worries that the lack of restrictions on individuals will invariably lead to the weakening of restrictions against corporations. His article is a prime example of why speech restrictions against other people always lead to speech restrictions against the rest of us.

In the interests of disclosure, I’ll say that I am one of those bloggers who could be affected by laws such as San Francisco’s if they were enacted in my city. I do often blog during my lunch hour on a company-owned computer. I microwave my lunch, close my door, take off my shoes and open up Mimsy. Perhaps you didn’t need to know that, but yes, I blog barefoot, with a spoonful of corn chowder in one hand and an Apple no-button mouse in the other, while drinking (company-owned) Arrowhead water from an amazon.com no-spill cup.

What is a journalist?

The crux of the matter is, what is a journalist? And, should journalists have greater free speech rights than everyone else?

The FEC rulemaking requires it to consider the question of who is a journalist. That question matters very much because journalists--even if they are paid by corporations or unions--are exempt from otherwise-applicable spending limits.

Organizations and people who feel that they are poorly-treated by the press are understandably against one-sided rules that let “the press” speak more freely than everyone else. Or which let organizations which own a newspaper speak more freely than organizations which do not:

What saves the corporate-owned Washington Post and similar entities from the corporate limit is a "media exemption:"

So, while the Drug Policy Foundation and the National Rifle Association are limited in what they can write and say about candidates during an election, the New York Times and the Washington Post can write and say whatever they want about the Drug Policy Foundation and the National Rifle Association.

These restrictions were meant to do this: they were meant to uphold the status quo. Why, when it comes to free speech, do we distinguish between journalists? Most of us didn’t care when there was no way for us to exercise our free press rights without buying a press.

Today, however, the technological barriers have been lessened considerably. Anyone with a computer or with access to one on their lunch hour can be a political commentator, a reporter, or a shill for the left/right/middle-wing.

Because we are still dealing with rules and regulations that treat journalists as “more free” than everybody else, the FEC is having a hard time with bloggers, who are generally individuals with no connection to a major news source. The mind-set, among people like Hagen, is that since these people aren’t journalists, they shouldn’t have the right to say what they want during elections.

The FEC’s draft regulations, according to Hasen,

would create some safe harbors for bloggers engaged in election-related speech, but it would not necessarily grant the media exemption to a blogger who uses corporate-owned computers (even by a corporate employee who blogs on her lunch hour) to maintain a blog.

Depending on their definition of corporation, that could be me as I write this.

A chill on individual rights?

Hasen emphasizes “the increased importance of disclosure of funding sources by bloggers and others”. What he appears to want is a law requiring bloggers to familiarize themselves with election law. He wants more than laws requiring disclosure, but thinks that ought to be the bottom line.

Hasen implies, but does not say (and his earlier paragraphs seem to conflict with this) that this would put them in the same league as journalists. But even if journalists for the New York Times would be covered by such a law, it doesn’t matter. The New York Times has lawyers on staff to keep them in compliance with the law. Barefoot bloggers do not. It is much easier for the New York Times to know it has complied with such a law than it is for individuals.

The problem with such laws is that they have to grapple with the issue of how do you know someone is following the law?

San Francisco is grappling with a similar issue. Their proposed regulations are hard to understand but appear to apply to bloggers. It appears to say that even bloggers who are not covered by the law are covered by it enough: they must identify themselves and say that they are not funded by anyone else.

In their defense, San Francisco Supervisor Sophie Maxwell says that “the intent of the legislation is to cover blogs as a recognized news entity” and thus not require such disclosure.

But, and this is the point of such regulations, it doesn’t matter how limited the regulations are on individuals if it means that individuals must still become familiar with complicated election law to know when, how, and where they must disclose who paid for their hosting, who paid for their lunch-hour or café computer station, and whatever else I don’t know because I am not a lawyer.

Individuals cannot afford to hire lawyers to determine when and where they are allowed to blog and what they are required to do when they blog. Any such regulations that require them to hire a lawyer will have a chilling effect on free speech.

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