From Banning Books to Banning Blogs

How the DISCLOSE Act will restrict free speech

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…”

In Citizens United, the Supreme Court explicitly rejected disparate treatment of media corporations and other corporations (including nonprofit groups) in campaign finance law. “Differential treatment of media corporations and other corporations cannot be squared with the First Amendment,” Supreme Court Justice Anthony Kennedy wrote for the majority.

No legitimate justification exists for excluding media corporations from regulations on political speech applicable to other corporations, unless the goal is to gain the support of editorial boards funded by the New York Times Co.

The DISCLOSE Act would ban U.S. subsidiaries from speaking if foreign nationals own 20 percent of a company’s voting shares. Mexican billionaire Carlos Slim owns a 7 percent stake in The New York Times Co.—yet the New York Times would not be restricted if other non-citizens owned 13 percent of the company’s stock.

The Times editorial board expressly advocates the election or defeat of candidates, acts of political speech worth thousands of dollars, yet it is exempted from similar regulations imposed on other companies wishing to speak out about candidates. The Times also writes unsigned, anonymous attacks, yet the DISCLOSE Act would compel the political speech and identification of nonprofit groups: a bulky, filmed disclaimer estimated to be 2-3 times longer than candidates’ disclaimers.

All this hasn’t stopped the Times and other dead-tree media outlets from enthusiastically endorsing the DISCLOSE Act. Perhaps the Times scribes wouldn’t be so rah-rah about these regulations if they realized they would give government the power to regulate political speech on the Web and determine which companies are “media”—meaning exempt from regulation—and which are “political”—meaning heavily regulated.

The House version of the DISCLOSE Act, expected to be marked-up next week, includes the definitions “communication” and “covered communication,” which differs from the term “public communication” adopted by the FEC in a 2006 rule exempting online speech from government control.

When McGinley and the Center for Competitive Politics pointed this out amid the Democrats’ rush to pass this poorly-written bill, “reformers” attacked the messengers. In a post called “Who would’ve known that the DISCLOSE Act calls for burning books, regulating the Internet—and even creates death panels?” Public Citizen lobbyist Craig Holman compared pointing out a serious consequence of sloppy statutory language in this campaign finance bill to “invent[ing] the myth that the [health care bill] would create the infamous ‘death panels.’”

The Brennan Center for Justice’s Ciara Torres-Spelliscy accused us of “a blatant attempt to kick sand in the eyes of lawmakers,” and attempted to deny the plain meaning of the statutory language. Nonetheless, she admitted that “the FEC is most likely to stand by the 2006 Internet rules and only reach PAID political banner ads; not bloggers.” (Emphasis added.)

The response of “reformers” to serious questions about a bill imposing civil and criminal penalties for engaging in political speech would be shocking if it wasn’t so typical. Most likely isn’t good enough for people who want to speak out in politics without threat of jail time and hefty fines.

There’s little reason to trust the “good government” crowd on this. When the issue of internet regulation first came up after passage of the McCain-Feingold law in 2002, the goo-goos denounced a deregulated Internet as a “loophole” in campaign finance law, a “poison pill,” “anti-reform,” and a “step backwards.” In court filings, they called the Internet “a favored conduit for special interests to fund soft money and stealth issue ads into federal campaigns.” While most pro-regulation groups eventually endorsed the FEC regulations exempting the Internet amidst a public backlash, this was simply a tactical consideration to head off passage of the Online Freedom of Speech Act of 2006, which would have codified a broad exemption for political speech online (“reformers” unanimously opposed the bill).

Solicitor General Elena Kagan, who President Barack Obama nominated to the Supreme Court last week, argued at the rehearing of Citizens United that “the FEC has never applied this statute to a book,” referring to the now-abolished corporate source prohibition on independent speech. The FEC, though, launched an investigation into a book George Soros wrote in 2004 advocating the defeat of President George W. Bush.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    Sigh!!

  • ||

    Indeed. Ms. Kagan is really taking it on the chins.

  • PIRS||

    "There’s little reason to trust the “good government” crowd on this."

    Or anything else.

  • RM||

    Threadjack:
    Worst SCOTUS ruling since slaughterhouse.
    http://www.cnn.com/2010/CRIME/.....index.html

  • PIRS||

    We may not be "slouching toward Gommorah" as Bork claimed but we are slouching toward tyranny.

  • PIRS||

    Just to be clear, if you want to keep an actual rapist in jail for life in prison I am fine with that. But if that is what you want to do set the prison term to be "life in prison". Do not change it to be longer than it is set to be. This is a dangerous president.

  • The Libertarian Guy||

    "This is a dangerous president."

    Raaaacist!!!

  • ||

    Yes, once again, we learn that allowing the state to assert a monopoly on the administration of justice is just peachy.

    Bottom line: No monopoly justice, no ability of any party to "regulate" speech, internet or otherwise.

    Being a libertarian does not mean accepting the kool-aid that liberty can only flourish with the state having a monopoly on the administration of justice. Such thinking is juvenile, adolescent and thoroughly ignorant.

  • Tony||

    Places where this isn't the case are called "failed states."

    However bad the state is at administering justice, mafiosi are usually worse, and don't offer you a vote in the matter.

  • Soonerliberty||

    States all begin as mafiosi. It's only later that they ask for legitimacy. That is, unless you believe that the Constitution fairly represented the people at that time. You might want to ask blacks and women about that. Of course, Hitler was voted in, prop 8 in California, and the happy list goes on and on, so I'm not really sure what voting has to do with anything or what point you are trying to make.

  • ||

    Hitler was not voted into office.

  • flenser||

    Hitler was voted in, prop 8 in California, and the happy list goes on and on

    Prop 8, Hitler, the gulag, what's the diff really?

  • ||

    To be fair, mafiosi at least have a strong incentive to turn a profit.

  • Max||

    Hey losertarians,

    My name is Max, and I hate every single one of you. All of you are fat, retarded, no-lifes who spend every second of their day reading at stupid ass blog posts. You are everything bad in the world. Honestly, have any of you ever gotten any ass? I mean, I guess it's fun making fun of people because of your own insecurities, but you all take to a whole new level. This is even worse than jerking off to pictures on facebook.

    Don't be a stranger. Just hit me with your best shot. I'm pretty much perfect. I was captain of the debate team, and starter on my math olympiad team. What hobbies do you have, other than "jack off to murray rothbard"? I also get straight A's, and have a banging hot life-partner (He just blew me; Shit was SO cash). You are all losers who should just kill yourselves. Thanks for listening.

  • PIRS||

    "I guess it's fun making fun of people because of your own insecurities, but you all take to a whole new level."

    To what are you refering if I may ask?

  • Brett L||

    I give it a single star. Either the troll lives in an irony-free universe or the imitator was unable to stay in character. Either way, it was a sub-par effort.

  • PIRS||

    I must admit I am strangely fascinated by Max. He (or she, could be short for Maxine) seems to not understand libertarianism. I want to get this person at least to the point he or she understands us.

  • ||

    I want to get this person at least to the point he or she understands us."

    As was said about the new offering of decaffeinated expresso by the local coffee shop...why bother?

  • PIRS||

    Understanding libertarianism is the first step to actually becoming a libertarian. Most libertarians were once of another political philosophy. Who knows, if Max at least understands us ....

  • The Libertarian Guy||

    Did Max say something? I wasn't paying attention.

  • ||

    "Max" probably is a reference to his all too little one. Along with trolling, he probably drives a red sports car.

  • ||

    . I was captain of the debate team, and starter on my math olympiad team.

    So, you peaked in high school? Must suck to be you.

    -jcr

  • ||

    Not even remotely enough impotent rage. C-.

  • CAW||

    I've read H&R for a while, and I've never posted a comment, but I just wanted to point out that what Max wrote isn't original, but a "form rant".

    http://www.google.com/search?h.....;gs;_rfai=

    It's from 4chan (but anyone who knows 4chan already knows this)

  • The Libertarian Guy||

    Great! Maybe Obama's FCC stormtroopers can do something about 4chan - oh, wait... never mind.

  • Brett L||

    See. I knew it wasn't the usual Max.

  • The Jeffersonian||

    This is the best laugh I've had in weeks! Good thing I wasn't drinking milk it would have come of my nose!

  • Soonerliberty||

    I'm loving this "captain of the debate team" and "starter on my math olympiad team" as examples of coolness. This reeks of psychological pathologies.

  • ||

    I see you're fingers typing, but all I'm gettin' is blah, blah, blah....

  • JohnD||

    Why do you guys respond to this dickweed? Ignore him and he will go away.

  • Loongcat||

    Lrn24chan ppl

  • G-Love||

    Someone, for God's sake, regulate the amount of twinkies Elena Kagan is stuffing into her pie hole. I lost count of her chins at infinity...

  • ||

    More chins than a chinese phonebook.

  • douchebag||

    Hello, I am a douchebag

  • BakedPenguin||

    Max, you posted above already.

  • ||

    Holy fucking shit! As somebody whose formative development years included a completely unregulated internet, this scares the shit out of me. Regulating political speech on the internet? Sure, why not? Fuck that!

  • ||

    The bill is unconstitutional on its face. If it is enacted, I will ignore it.

    -jcr

  • douchebag||

    Doooooooooooouchebag!

  • Fluffy||

    What happened to the Comments on the Draw Mohammad thread?

  • PIRS||

    Fluffy,

    this one is still open:

    http://reason.com/archives/201.....t#comments

  • ||

    Looks like they shut it down Fluffy. I wonder if Reason is getting unpleasant emails of a threatening nature.

    Also, Nick Gillespie posted that "incendiary posts" would be removed saying that [paraphrasing] "derogatory Muhammed comments could be posted elsewhere on the intertubes"

  • ||

    No, it's just the growing instability of this blog. Haven't you noticed? It's the damned threaded, nested, abominable comments.

  • ||

    Of which most of us are guilty of using.

  • BakedPenguin||

    It got tiresome fighting them. Laziness beats principle in this case.

  • ||

    I pay taxes, too.

  • ||

    Really? How pedestrian! What kind of barrister are you? You sicken me Pro'L Dib.

  • PIRS||

    It could be that he does not wish to be tossed into a cage by armed thugs.

  • cynical||

    Scene: ProLib rides up a stretch of barren internet, a descendant of Steve Smith following him at a distance. Upon seeing the remains of a ruined website in the distance, the words REE IND FRE ARK faintly visible, he collapses to his knees.

    ProLib: Oh my God... I'm back. I'm home. All the time it was... we finally really did it. [screaming] YOU MANIACS! YOU BLEW IT UP! OH, DAMN YOU! GODDAMN YOU ALL TO HELL!

  • PIRS||

    "Looks like they shut it down Fluffy. I wonder if Reason is getting unpleasant emails of a threatening nature."

    Or it could be that they are tired of posts of a graphic sexual nature in a thread about Islamic terrorism.

  • BakedPenguin||

    "...it seems that if there's one group of folks more obsessed with gay sex than Islamic terrorists, it's critics of the same..."

  • PIRS||

    Yes, it is a shame that a handfull of people can ruin it for us all.

  • AlmightyJB||

    No, whats a shame is more reasonites not calling bullshit on Nick censoring a thread about censorship and then pulling some twisted logic out of his ass to claim deleting comments is not censorship. I guess it's only censorship when someone else does it. His little "gay sex" comment was also bullshit. If he hadn't deleted the original comment it probably would have been dropped. Nothing on that thread was even remotely as offensive as any of Max's posts. Nick has every right to censor his threads as he see's fit. But on a site like reason seems like a little ball breaking over that should be manditory.

  • AlmightyJB||

    They had decided to censor the comments which became more work then it was worth.

  • The Art-P.O.G.||

    This is a dangerous president.

    I'm assuming you mean "precedent"? R.C.'z Law for the win.

  • ||

    He's an unpresidented failure, too.

  • ||

    BIRTHER!

  • PIRS||

    Originally. But it works either way however.

  • People Power Hour||

    Perform acts of sexual congress on ObamaRama, his "administration," and the pygmy pony they rode in on.

  • Hu Jintao (SNL)||

    So why are you trying to DO SEX TO ME as if I were Mrs. 0bama?

  • People Power Hour||

    Sorry, it wouldn't let me drop the f-bomb. Go figger.

  • The Libertarian Guy||

    Fuck.

  • The Libertarian Guy||

    So, where are our other resident liberals (Max doesn't count) to cheerlead this latest swipe at liberty?

    We're waiting, guys!

  • ||

    Perhaps the Times scribes wouldn’t be so rah-rah about these regulations if they realized they would give government the power to regulate political speech on the Web and determine which companies are “media”—meaning exempt from regulation—and which are “political”—meaning heavily regulated.

    The Times is rah rah about this new attempt to squelch free speech on the internet, precisely because it would squelch free speech on the internet.

    This shows that the freedom of the internet is shaking the foundations of the power elite, and that they must at all cost stifle it. It's similar to the effect Gutenberg's press had on the establishment in medieval Europe.

    "Elite dominant social themes – promotions – can only function when people don't understand they are being promoted. People generally don't like being manipulated. Once they've figured it out, the game is up. These fear-based promotions that the elite uses to gather further control and wealth absolutely depend on people not figuring out that they are being purposefully frightened. In the 20th century, there was no Internet and no way to get the word out. All that has changed."

    From the article "Has the Power Elite Over-Reached?" in the 2010 May 08 online issue of the The Appenzeller Daily Bell, a nicely written little blog that intelligently rips apart the memes (a.k.a. "promotions" both left and right) propagated in the MSM.

  • G Mc||

    Wow, how did you guys ever find an unflattering picture of Kagan? You guys are true journalists!

  • E3LIVE LIFE TO THE FULLEST||

    http://www.discloseact.com/

    check this out folks...

  • The Jeffersonian ||

    I want to see Kagan & Leno chin wrestle.

  • Reasonsjester||

    I take it that we Neanderthals are supposed to go back to a premodern worldview where we are supposed to implicitly trust the words of the nobles and their media clerics and do what we're told, work the field we're allotted, and never waver in our fealty to the Glorious Lord Barack Obama. Yes, let's forget the Enlightenment ever happened.

  • poopy||

    That's why I refer to those who call themselves Progressives as Regressivies.
    They say they want to progress to a state where laws and government cure us of human nature.
    When in fact they want to regress to a pseudo-feudal state where everything is controlled by a small group of elites, with everyone else owing their very existence to those elites.

    In the mind of the Regressive the First Amendment does not prohibit the government from violating our right to free speech, it authorizes the government to give us the right to free speech.

  • Ron||

    well said.

  • Plato||

    "When in fact they want to regress to a pseudo-feudal state where everything is controlled by a small group of elites, with everyone else owing their very existence to those elites."

    It's not my fault you can't distinguish between the degraded form of government known as oligarchy, and the paradise of absolute rule by philosopher kings.

  • Contrarian P||

    Yep...those shadows on the cave wall are awesome.

  • ||

    The point about the New York Times being exempt is very good. That goes to show how much money talks in politics. Even Ron Paul recognized that corporate money is harmful to democracy when he said that what "corporatism" mean is that corporations run the country by buying all the politicians.

    So its strange that the folks at Reason shrug of the danger's the Citizen's United (hah, that misnomer still makes me chuckle) decision, but with the Disclose act they become chickenlittles.

    The fact is that blogs aren't going to be banned. How could they actually do so? Through the ISPs? Even if they actually intended to do so, which I don't really think is the intent, that alleged part of the Disclose act would be entirely unenforceable.

  • Abdul Alhazred||

    SO an unconstitutional law is alright if it is also unenforceable?

  • Abdul Alhazred||

    SO an unconstitutional law is alright if it is also unenforceable?

  • ||

    Now, them's some change you can believe in. I have to ask myself, what on earth would it possibly be like to have leaders who do not have utter contempt for liberty?

  • ||

    The full name of the DISCLOSE Act sounds just like something out of Atlas Shrugged. When I read Ayn Rand as a high schooler, I thought her writings were something akin to science fiction. Now I think she was prescient.

  • ||

    For those who don't know, the real name is the "Democracy Is Strengthened by Casting Light On Spending in Elections Act."

    Who is John Galt?

  • ||

    Comprehensive and concise summary of the new regulations and laws: we're not allowed to squeal before we're turned into bacon any more, because it upsets the rest of the hogs awaiting that process.

  • ||

    you do realize your wrong right? I mean just all around incorrect...try again, sry.

  • ||

    The Democrats will do the maximum amount of damage they can to this country before they are run out of office in November. It's just the way leftists are. They are the "enemies domestic" referred to in the presidential oath of office.

  • ScratchMonkey||

    Can someone point me to the exact text of the bill that would ban blogs? A section number would be appreciated. Here's a link to the bill text:

    http://www.opencongress.org/bill/111-h5175/text

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    It’s perfect thought from my side.

    One Law Center

  • atul||

    The society is facing problems with such laws. This has to go legal
    and it’s needed to be sorted at the earlier.

    One Law Center

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    Last week, a congressional hearing exposed an effort to give another agency—the Federal Election Commission—unprecedented power to regulate political speech online.

  • dave||

    If I had to take an educated guess as to why this would pass

    1..Words can sway an entire nation...blogs are unregulated and some are written by highly educated individuals ...and in times such as these.....the 'system'/government needs to gain control of the masses...and the general public seems to be internet oriented these days....

    2.... someone is not getting their cut....meaning money and is pissed off about it....

    3. this is quite possibly the infancy stage of a network/software which could monitor every possible computer stateside...

  • ปลวก||

    Do not change it to be longer than it is set to be. This is a dangerous president.

  • Motorcycle Flag Mount||

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  • RAN||

    The full name of the DISCLOSE Act sounds just like something out of Atlas Shrugged. | RAN ran ran แรน แรน แรน |

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    It's impossible to regluate the Internet! Close down one site on one ISP and it will open up on a different server, different country, different domain name elsewhere. The web is the ultimate tool for freedom of speech!

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