From Banning Books to Banning Blogs

How the DISCLOSE Act will restrict free speech

Bradley Smith & Jeff Patch

The Obama administration has announced plans to regulate the Internet through the Federal Communications Commission, extending its authority over broadband providers to police web traffic, enforcing “net neutrality.”

Last week, a congressional hearing exposed an effort to give another agency—the Federal Election Commission—unprecedented power to regulate political speech online. At a House Administration Committee hearing last Tuesday, Patton Boggs attorney William McGinley explained that the sloppy statutory language in the “DISCLOSE Act” would extend the FEC’s control over broadcast communications to all “covered communications,” including the blogosphere.

The DISCLOSE Act’s purpose, according to Democratic Congressional Campaign Committee chair Chris Van Hollen and other “reformers,” is simply to require disclosure of corporate and union political speech after the Supreme Court’s January decision in Citizens United v. Federal Election Commission held that the government could not ban political expenditures by companies, nonprofit groups, and labor unions.

The bill, however, would radically redefine how the FEC regulates political commentary. A section of the DISCLOSE Act would exempt traditional media outlets from coordination regulations, but the exemption does not include bloggers, only “a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine or other periodical publication…”

…Last Thursday, after meeting with the newly-minted nominee, Sen. Arlen Specter (D-Penn.) told reporters that he felt more comfortable about Kagan’s views because “we talked about the Citizens United case and she said she thought the court was not sufficiently deferential to Congress.” [emphasis CAJ]

Now that Democrats in Congress seek to ram through an expansive regulatory regime for regulating political speech by Independence Day (no joke), it seems Kagan would defer to Congress’s wisdom on such restrictions rather than the plain text of the First Amendment: “Congress shall make no law… abridging the freedom of speech, or of the press.”

If Congress can ban political TV ads and pamphlets, why not blogs?

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