This is a fantastic article by John Samples about just where regulation of political speech, particularly on the Internet, is headed. It’s written in the form of a fictional letter (from the year 2008) from the FEC to a certain prominent blogger:
In your last letter to the Commission, you stated that “my alleged blogging about Senators McCain and Clinton is protected from government regulation by the First Amendment to the U.S. Constitution.” You conclude: “The Constitution says ‘Congress shall make no law… abridging freedom of speech.’ No law means no law.”
This is incorrect. The Supreme Court has long recognized that Congress may restrict the financing of campaigns to prevent corruption or the appearance of corruption. The Court has also stated that Congress may close loopholes in campaign finance law by regulating speech that influences federal elections.
In 2008, Senators Clinton and McCain were the major party candidates in a federal election for the presidency. The Commission has ruled that messages that reach over 100,000 voters nationally (or 25,000 voters in an electioneering area) may be assumed to influence a federal election. The complaint against you alleges that your statements received well over 200,000 hits on the dates in question.
You also state that you received no payments to blog about the election from any candidate, candidate’s committee, or political party. That is irrelevant. Congress and the Commission, with the blessing of the Supreme Court, have decided that your influence on federal elections justifies regulation of your activities. If your attempts to influence federal elections were not regulated, the entire structure of campaign finance regulation (and hence, the very integrity of our democracy) would be threatened.
Frankly, we are surprised that a law professor would make such absurd claims based on the outmoded “Congress shall make no law” view of the First Amendment.
Anyone who tells you that this is absurd is not simply not paying attention — he or she is lying to you.
Repeal of McCain-Feingold and a reverse of the Supreme Court’s current position are the only things that can save free speech.
Or, there’s my proposed constitutional amendment:
[appended to the First Amendment]
– AND WE MEAN IT!!!
I agree, of course, but so what. I have made efforts to get bloggers to support the “Online Freedom of Speech Act” proposed in Congress. The response has been the sound of crickets chirping. There are plenty of people who want to regulate political expression, but very few, apparently, who want to keep it free. Not even you, despite all your fine work on this issue in general, have done much of anything to support the “Online Freedom of Speech Act.” Ah, well. I guess complaining is more fun.
Is it because the OFoSA is essentially the equivalent of tacking on “– AND WE MEAN IT!!!”?
Perry, the first step in problem solving is figuring out there is a problem. Right now there isn’t a problem. The fact that a few people are making shrill noises in the background does not a problem make. And also note that the one thing in America that produces bi-partisan support is the defense of incumbency.
Conservatives will address this issue, but not until the Courts are reeled in. I doubt that the Left will be pleased with the results. You may be upset about a few bloggers but there are about 40 million people that are still upset over a bucket of urine with a cross in it being protected by the 1st amendment.
There is no point to fixing the 1st amendment until the Judges are brought to heel. IIRC, the first amendment covers Speech, specificlly the Press. It doesn’t cover artistic expression, electronic media, and all the other little things the court system has shoved under that tent. Show me where it says Television in the Constitution. If TV is to be covered in the Bill of rights, it should not be done by stretching the 1st amendment all out of shape, but by writing a new amendment and going thru the legal process. Not by having Judges write Law. Let’s have a vote on if a bucket of cold piss is art.