Crunch: An Ominous Court Decision for Free Speech

The U.S. Court of Appeals for the D.C. Circuit has upheld a lower court ruling in a lawsuit (Shays v. FEC) brought by Congressmen Chris Shays and Marty Meehan, and supported as amici by Senators Russ Feingold and John McCain, that struck down several Federal Election Commission regulations interpreting the McCain-Feingold bill on the grounds that the regulations are too lenient.

My initial response to just one part of the decision:

Bloggers Beware: When the Reform Advocates Claim that they don't want to get you, they are probably not telling the truth. As I noted here, groups that support McCain-Feingold have claimed that they only want to regulate "paid ads," and here (see p. 8) they claimed to believe that the FEC only regulated money - if there was no money spent, then the FEC had no authority to regulate. But in the Shays case, the plaintiffs argued that even if an ad was broadcast for no fee, it was regulated. See p. 53 and following. The Commission, on the other hand, argued that if there was no fee, there was no expedenditure. The Commission lost. It now must regulate unpaid broadcast ads. The issue on the internet is a different part of the statute, but like the portion of the statute at issue in Shays, it makes no mention of being limited to internet communications that are made "for a fee," only that they be "communications to the general public."

So when the reform community - including Representatives Shays and Meehan, and Senators McCain and Feingold, claim that they only want to regulate paid ads, they appear to be talking out of both sides of their mouths. They have already sought - successfully, now - to regulate unpaid ads. This case strongly suggest that the mere fact that bloggers may not spend any money to blog does not insulate them from regulation - or even give the FEC the authority to ignore their activities.