A Presumption Against Regulation Why Political Blogs Should Be (Mostly) Left Alone Ch 2

A PRESUMPTION AGAINST REGULATION: WHY POLITICAL BLOGS SHOULD BE (MOSTLY) LEFT ALONE I. INTRODUCTION During the past several years, the number of web logs (“blogs”)1, particularly those of a political nature, has exploded, peaking around the time of the 2004 presidential election. The power of these blogs to shape politics and opinion has attracted the attention of politicians and the media. As political blogs have gained power, there has been an attempt to curb their influence and correct potential political abuses. Most notably, there is an ongoing effort to apply campaign finance reform laws to political blogs and other forms of Internet communication. Recently, the Federal Election Commission (“FEC”) instituted a set of rules (“the new rules”) that apply current election laws to the Internet. The actions taken by the FEC have profound implications for American political discourse and free speech. Part II of this note will address the history of campaign finance reform, culminating in the Bipartisan Campaign Reform Act (“BCRA”) and the current FEC regulations regulating Internet political speech. Part III will address the history of blogs (especially political blogs), their many uses, and their infiltration of the “mainstream media.” Part IV will address the current application and resulting problems of the BCRA’s press exemption to Internet speech by issue advocacy organizations, individuals, and the traditional media. Part V will address additional difficulties posed by the unique nature of Internet communication, particularly difficulties involving disclosure. Part VI will address the problems involved in creating appropriate remedies for violations of campaign finance reform laws on the Internet. Finally, Part VII will address the proposed solutions to these problems, assessing the balance between preservation of the integrity of political campaigns and preservation of the free flow of ideas. II. THE HISTORY OF CAMPAIGN FINANCE REFORM Although minor efforts to curb financial influences on political campaigns have been made since the founding of the United States, serious campaign finance regulations were not established until the 1970’s. In 1971, Congress passed a sweeping overhaul of campaign finance regulations with the Federal Election Campaign Act of 1971 (“FECA”)2 and the Revenue Act of 1971,3 in 1 The word “blog” is defined as “an online diary; a personal chronological log of thoughts published on a Web page.” Webster’s New Millennium Dictionary of English, Preview Edition (v 0.9.6), available at http://.dictionary.reference.com/browse/blog (last visited Jan. 16, 2007). 2 Pub. L. No. 92-225, 86 Stat. 3 (codified as amended in scattered sections of 2 U.S.C. & 26 U.S.C.). 3 Pub. L. No. 92-178, 85 Stat. 497 (codified as amended in 26 U.S.C. §§ 991-997 (1972)). an attempt to consolidate previous reforms and move towards public financing of presidential campaigns. Then, in 1974, public outrage over the Watergate scandal resulted in several substantial amendments to FECA.4 In response to a constitutional challenge to several of the amendments in Buckley v. Valeo,5 the United States Supreme Court upheld contribution limits,6 disclosure requirements,7 and voluntary public financing,8 but struck down most limits on expenditures.9 After Buckley, few substantive changes were made to FECA until the rise of the Internet began to pose difficulties due to fundamental differences between media control and power in the online world and media control and power in traditional media. Most notably, there are few barriers to entry for someone who wants to publish and disseminate online content.10 Courts addressing issues raised by online content have expressed a willingness to protect online political speech from government intrusion.11 In Reno v. ACLU, the United States Supreme Court acknowledged that the First Amendment’s protections apply to online material,12 and that online content is subject to greater protection than that found in other more traditional media.13 The Court also acknowledged that the Internet is a “unique” medium14 that enables anyone to disseminate his or her message significantly “farther than 4 Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263 (codified as amended in scattered sections of 2 U.S.C.) (creating the Federal Election Commission [“FEC”], passing stricter contribution and expenditure limits, and creating public financing for presidential general election campaigns). 5 See Buckley v. Valeo, 424 U.S. 1 (1976). 6 Id. at 58-59 & n.67. 7 Id. at 84 & n.113. 8 Id. at 108 & n.147. 9 Id. at 58-59 & n.67. 10 With just a computer and an Internet connection, users can create and distribute content cheaply and quickly. Although individual users have fewer institutional advantages in attracting audiences than large online media institutions, the potential still exists for these individuals to create and distribute content effectively. 11 See, e.g., Reno v. ACLU, 521 U.S. 844, 882 (1997). 12 The Court reviewed the constitutionality of several provisions of the Communications Decency Act (“CDA”). In analyzing the provisions, the Court used traditional First Amendment analysis to determine that the CDA was not narrowly tailored to meet a compelling government interest and was impermissively vague and overbroad. Id. at 874879. 13 Id. at 868-69 (there are “special justifications for regulation of the broadcast media that are not applicable to other speakers . . . .”). 14 Id. at 850. [they] could from any soapbox.”15 Presumably in response to Reno and to growing concerns about the applicability of FECA to online content, the Federal Election Commission (“FEC”) began a rulemaking process to determine how best to apply FECA to the Internet. The FEC issued a Notice of Inquiry on November 5, 1999 seeking comments from interested parties. 16 In response to those comments, the FEC issued a Notice of Proposed Rulemaking (“2002 NPRM”) addressing the agency’s approach to the regulation of political activity on the Internet.17 However, the FEC never got a chance to enact the proposed rules because Congress stepped in instead. Spurred by the enormous Enron scandal, among other reasons, Congress passed the Bipartisan Campaign Reform Act of 2002 (“BCRA”).18 The BCRA eliminated all soft money donations to national party committees,19 but doubled the contribution limit of hard money.20 In addition, the BCRA banned the use of corporate or union money to pay for broadcast advertising identifying a federal candidate within 30 days of a primary or nominating convention or within 60 days of a general election.21 Any such ads identifying a federal candidate had to be paid for with regulated hard money, or with contributions exclusively made by individual donors.22 Later that year, the FEC adopted a set of rules implementing the BCRA.23 Notably, the FEC excluded all Internet communications from the definition of “public communication.”24 Shortly after the adoption of these rules, Congressmen Christopher Shays and Marty Meehan, the sponsors of the BCRA in the U.S. House of Representative, filed a lawsuit against the FEC in federal district court, arguing that many of the FEC rules were inconsistent 15 Id. at 870. Use of the Internet for Campaign Activity, 64 Fed. Reg. 60,360 (proposed Nov. 5, 1999) (to be codified at 11 C.F.R. pts. 100, 102-104, 106-107, 109-10, 114 & 116). 17 The Internet and Federal Elections; Candidate-Related Materials on Web Sites of Individuals, Corporations and Labor Organizations, 66 Fed. Reg. 50,358 (proposed Oct. 3, 2001) (to be codified in 11 C.F.R. pts. 100, 114, & 117). 18 Pub. L. 107-155, 116 Stat. 81 (codified in scattered sections of 2 U.S.C., 18 U.S.C., 28 U.S.C., 36 U.S.C., & 47 U.S.C.). 19 2 U.S.C. § 441i(a)(1) (2002). 20 It was increased from $1,000 to $2,000 per election cycle. 2 U.S.C. § 441a(a)(1)(A) (2002). 21 2 U.S.C. 434(f)(3)(A) (2002). 22 2 U.S.C. 434(f) (2002). 23 Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money, 67 Fed. Reg. 49,064 (July 29, 2002) (codified as amended in 11 C.F.R. pts. 100, 102, 104, 106, 108, 110, 114, 300 & 9034). 24 Id. at 49,071-72. 16 with the BCRA.25 In September, 2004, the district court issued a decision in Shays v. FEC, which struck down 15 separate FEC regulations and ordered the FEC to rewrite them.26 First, the district court held that the exclusion of all Internet communications from the definition of “public communication” in 11 CFR 100.26 was inconsistent with the BCRA.27 The court concluded that “[w]hile all Internet communications do not fall within [the scope of ‘public communications’], some clearly do.”28 The court left it to the Commission to determine “[w]hat constitutes ‘general public political advertising’ in the world of the Internet,” and thus what should be treated as a “public communication.”29 Second, the court found that the Commission’s definition of the term “generic campaign activity” was “an impermissible construction of the Act” to the extent that it excluded all types of Internet communications.30 Third, the court “invalidated the ‘content prong’ of the Commission’s coordinated communications rule at 11 CFR 109.21(c), which incorporates the definition of ‘public communication’ at 11 CFR 100.26.”31 The court found that expenditures for candidate or committee coordinated communications are “in-kind contributions, to that candidate or committee, regardless of the content, timing, or geographic reach of the communications,”32 and that certain regulatory exclusions in the content prong “undercut [the Act’s] statutory purpose of regulating campaign finance and preventing circumvention of the campaign finance rules.”33 The court then remanded each of these rules to the Commission for further action consistent with its opinion. In response to Shays, the FEC issued a Notice of Proposed Rulemaking (“2005 NPRM”).34 According to the 2005 NPRM, “the proposed rules . . . would identify the types of Internet communications that are forms of ‘general public political advertising’ and that therefore would qualify as public communications.”35 Although the Commission stated its intent to retain the 25 Shays v. FEC, 337 F. Supp. 2d 28 (D. D.C. 2004) Id. at 130-31. 27 Id. at 69 & n.39. 28 Id. at 67. 29 Id. at 70. 30 Internet Communications, 70 Fed. Reg. 16,967, 16,968 (proposed Apr. 4, 2005) (to be codified at 11 C.F.R. pts 100, 110 & 114) [hereinafter 2005 NPRM] (citing Shays, 337 F. Supp. 2d at 112). 31 Id. at 16,969. 32 Id. (citing Shays, 337 F. Supp. 2d at 63-64). 33 Id. (quoting Shays, 337 F. Supp. 2d at 63). 34 Id. at 16,967. 35 Id. at 16,969. 26 general exclusion of Internet communications from the definition of “public communication,” it suggested that Internet advertisements would constitute “general public political advertising” and thus fall under the definition of “public communication.”36 Since only paid political advertising would be affected, the Commission anticipated that this change would “have an extremely limited impact, if any, on the use of the Internet by individuals as a means of communicating their political views, obtaining information regarding candidates and elections, and participating in political campaigns.”37 Second, the 2005 NPRM republished and invited comment on the current definition of “generic campaign activity” in section 100.25, which included the term “public communication.”38 The Commission noted that “any changes to the underlying definition of ‘public communication’ pertaining to the Internet would automatically apply to ‘generic campaign activity.’”39 Third, the Commission proposed modifying its rules regarding which Internet communications require disclaimers.40 The Commission did not propose any changes to the required content of the disclaimers.41 Political committee websites would continue to need disclaimers.42 Individuals and entities other than political committees, however, would need to place disclaimers only on paid Internet advertisements,43 and only if the advertisements either solicit contributions or expressly advocate the election or defeat of a clearly identifiable candidate for federal office.44 The Commission also proposed to clarify the current requirement that disclaimers be included in electronic mail of “more than 500 unsolicited substantially similar communications” by defining “unsolicited” as “those e-mail [sic] that are sent The to electronic mail addresses purchased from a third party.”45 Commission’s aim was to “continue to require disclaimers on political ‘spam,’ without interfering with . . . large on-line communities.”46 Additionally, the 36 Id. Id. 38 Id. at 16,971. 39 Id. at 16,969. 40 Id. at 16,971. 41 Generally, a disclaimer must clearly and conspicuously state the identity of the person or political committee that paid for and authorized the communication. 11 C.F.R. § 110.11(c)(1) (2002); see also 11. C.F.R. 110.11(b)-(f) (2002) (discussing the specific requirements for the scope and content of disclaimers). 42 2005 NPRM, supra note 30, at 16,968. 43 Internet communications that constitute “general public political advertising” under the proposed definition of “public communication.” 44 2005 NPRM, supra note 30, at 16,972. 45 Id. at 16,978. 46 Id. at 16,969. 37 Commission proposed a rule excluding certain volunteer activities on the Internet from the definitions of “contribution” and “expenditure,”47 and sought to establish an “Internet exception from the definitions of ‘contribution’ and ‘expenditure’ for certain media activity.”48 On March 27, 2006, the FEC voted unanimously on a new rulemaking (“draft rules”) that would largely exempt bloggers and other individuals on the Internet from the ambit of the BCRA.49 The substance of the draft rules tracks almost exactly with the 2005 NPRM upon which they are based. The FEC amended the definition of “public communication” to include paid political advertisements on the Internet,50 but declined to include any other form of Internet communication within the definition.51 As a result, any paid political advertisement placed on a blog or other website will be considered a paid political communication subject to the disclosure and coordination rules of the BCRA.52 However, anyone using the Internet for any purpose will not be subject to the BCRA unless they are being paid by a political campaign or party.53 This includes Internet activity that would not otherwise be subject to the press exemption.54 Additionally, the FEC decided to make the traditional press exemption available to websites and other Internet communications.55 III. THE HISTORY OF BLOGS AND INTERNET SPEECH A blog is a web-based publication that usually provides updated headlines and news articles from other sites, and may include journal entries and commentaries compiled by the user. Many different entities author blogs on a variety of topics.56 A particular blog can range in scale from just one author57 47 Id. Id. 49 FEC AGENDA DOCUMENT NO. 06-20, FINAL RULES AND EXPLANATION AND JUSTIFICATION FOR THE INTERNET COMMUNICATIONS RULEMAKING (Mar. 24, 2006), available at http://www.fec.gov/agenda/2006/mtgdoc06-20.pdf [hereinafter Draft Rules]. 50 Id. at 19. 51 Id. 52 2 U.S.C. § 441i (2002). 53 Draft Rules, supra note 49, at 1. 54 Id. at 21-22. 55 Id. at 57. 56 Such entities and topics include individuals writing diaries, media organizations disseminating news and opinion, political campaigns spreading political messages, and businesses selling products or conducting public relations. 57 See, e.g., Eschaton, http://atrios.blogspot.com/ (last visited Jan. 16, 2007); Instapundit, http://instapundit.com/ (last visited Jan 16, 2007). 48 to a large community of authors.58 Many blogs also enable visitors to leave public comments, resulting in an interactive discussion and the development of a community of readers and contributors. Blogging is different from other forms of Internet communication (e.g. forums or newsgroups) in that only the author(s) can create new subjects for discussion.59 By allowing reader comments and providing tools to make linking to other pages easier, blogs accurately reflect the personality of the blog’s author, allowing that blogger60 to develop a unique style. Although blogs have been around since the early 1990’s, they only recently began to exert any sort of influence over the political process. The first blogaided political controversy is thought to be the fall of U.S. Senate Majority Leader Trent Lott.61 Although the blogs played a role in the Trent Lott scandal, they remained little-noticed by the general public even as the increasing debate over the Iraq war spread to the Internet.62 These blogs filled a void in the national discourse and citizens seeking information beyond that available from traditional sources flocked to the Internet in droves.63 However, despite their popularity with certain segments of the population, blogs still 58 See, e.g., DailyKos, http://www.dailykos.com/ (last visited, Jan 16, 2007); The Volokh Conspiracy, http://volokh.com/ (last visited (Jan. 16, 2007). 59 Because they are the only ones who can start a topic on the main page of the blog, blog owners have the ability to frame an issue more precisely than they would in a forum or newsgroup. 60 The term “blogger” refers to the author of a blog. 61 Lott had remarked during a party honoring U.S. Senator Strom Thurmond, that America would have been better off if Thurman had been elected President. Thurmond had run for President on the Dixiecrat ticket, expressly endorsing segregation. After Lott’s statements were criticized in the media, Republicans rallied to his defense, arguing that he had merely misspoken. See, e.g., Editorial, Losing the Verbal Lottery, WASH. TIMES, Dec. 11, 2002, at A18. Left-leaning bloggers such as Josh Marshall demonstrated that Lott’s remarks were not an isolated misstatement, by finding past quotes of Lott’s which appeared to condone segregation. See, e.g., Talking Points Memo, http://www.talkingpointsmemo.com/archives/000464.php (Dec. 14, 2002, 05:07 PM EST). The bloggers’ efforts kept the story alive in the press until a critical mass of disapproval forced Lott to resign his position as Senate Majority Leader. See, e.g., Carl Hulse, Divisive Words: The Overview; Lott Fails to Quell Furor and Quits Top Senate Post; Frist Emerges as Successor, N.Y. TIMES, Dec 21, 2002, at A1. 62 By the end of 2002, as the road to war began, the percentage of Americans visiting political- or issue-oriented websites had increased by 3 and 5 percent respectively from 2000. THE PEW RESEARCH CENTER FOR THE PEOPLE & THE PRESS, MODEST INCREASE IN INTERNET USE FOR CAMPAIGN 2002: POLITICAL SITES GAIN, BUT MAJOR NEWS SITES STILL DOMINATE 5-6 (2003), available at http://www.pewInternet.org/pdfs/PRC_PIP_Election_2002.pdf. 63 Id. attracted little attention from the traditional media and the Washington political establishment. The situation changed with the 2004 Democratic presidential candidacy of Howard Dean.64 Dean used blogs to disseminate his message on the Iraq war and other issues of the day, cementing the role of blogs as news sources. Even more importantly, in terms of getting the national press to take notice, Dean was able to effectively use blogs as a significant source of fundraising and grassroots support.65 Blogs were now on the minds of the media establishment and politicians.66 During the 2004 presidential campaign, thirteen percent of Americans used the Internet as one of their main sources of political news, compared to just nine percent during the 2000 campaign.67 In 2004, blogs reached the mainstream when “political consultants, news services and candidates began using them as tools for outreach and opinion formation.”68 “In the summer of that year both the Democratic and Republican National Conventions credentialed bloggers, and blogs became a standard part of the publicity arsenal . . . .”69 Even traditional media programs began forming their own blogs.70 Merriam-Webster’s Dictionary declared “blog” as the word of the year in 2004.71 Blogs had arrived. As discussed in Part II, the principle purpose of the BCRA is to stem the flow of soft money into politics in coordination with campaigns.72 While the new FEC rules will only minimally affect individual blogging activities, the 64 Dean, a little-known governor from Vermont, was able to catapult himself to frontrunner status in the primaries through the use of Internet communications, including blogs. 65 See Shedon Rampton, On the Internet, Nobody Knows You’re an Underdog, PR WATCH, Third Quarter 2004, at 1-2, available at http://www.prwatch.org/files/prw11_3.pdf. 66 On Feb. 14, 2005, CNN began devoting a segment of their news coverage to a rundown of the hot topics being discussed by the blogs, calling the segment “Inside the Blogs.” By the end of 2003, blogs such as Instapundit, DailyKos, and Atrios were all receiving upwards of 75,000 visitors daily. Juiceenewsdaily, The History of Blogs, http://www.juiceenewsdaily.com/0505/news/history_blogs.html?1133412833296 (last visited Jan. 16, 2007). 67 THE PEW RESEARCH CENTER FOR THE PEOPLE & THE PRESS, CABLE AND INTERNET LOOM LARGE IN FRAGMENTED POLITICAL UNIVERSE PERCEPTIONS OF PARTISAN BIAS SEEN AS GROWING – ESCPECIALLY BY DEMOCRATS 1-2 (2004), available at http://peoplepress.org/reports/pdf/200.pdf. 68 Juiceenewsdaily, supra note 66. 69 Id. 70 See, e.g., Hardblogger, http://www.msnbc.msn.com/id/5445086/ (last visited Jan. 16, 2007). 71 Merriam-Webster’s Words of the Year 2004, http://www.m-w.com/info/04words.htm (last visited Sept. 27, 2006). 72 See McConnell v. FEC, 540 U.S. 93, 228 (2003). rules are only part of the overall regulatory picture. The application of existing campaign finance reform laws to corporations, individuals, and traditional media on the Internet is not simple. There are a host of differences between the traditional versions of these groups and their Internet counterparts. As a result, there are a number of problems posed by attempting to apply existing campaign finance laws to communications on the web. These problems are related to (1) the press exemption; (2) defining campaign contributions; (3) the anonymity of Internet speech; and (4) the fashioning of appropriate remedies for violations of the BCRA. IV. THE PRESS EXEMPTION In passing FECA, Congress sought to protect the political process from the corrupting influence of money by limiting individual contributions and expenditures and barring corporations from contributing directly to federal candidates, even if those corporations were members of the media.73 Consistent with its stated mission to ensure that campaign finance reforms would not infringe on First Amendment freedom of the press,74 Congress created an exemption to the definition of expenditures when it passed the BCRA.75 This “allowed the media to report and comment on political campaigns and elections without having to disclose the cost of this activity to the FEC.”76 Shortly thereafter, the FEC extended this exemption to its definition of campaign contributions.77 Several interest groups,78 objecting to both the BCRA and the extension of the exemption, mounted a court challenge to several key provisions of the new law.79 In McConnell v. FEC, these groups argued that media companies exercise the ability to spend their considerable resources on political speech without regulation, while non-media companies 73 2 U.S.C. §§ 441b(a)-441b(b)(2) (2000) (a corporation may communicate with its restricted class about federal campaigns and elections but a corporation wishing to send communications outside of its restricted class must form a separate segregated fund, or political action committee). 74 H.R. REP. NO. 93-1239, at 4 (1974) (“[I]t is not the intent of the Congress . . . to limit . . . the first amendment freedoms of the press . . . .”). 75 2 U.S.C. § 431(9)(B)(i) (2000) (this is known as “the media exception”). 76 Christopher P. Zubowicz, The New Press Corps: Applying the Federal Election Campaign Act’s Press Exemption to Online Political Speech, 9 VA. J.L. & TECH. 6, ¶ 7 (2004), available at http://www.vjolt.net/vol9/issue2/v9i2_a06-Zubowicz.pdf. 77 11 C.F.R. § 100.73 (2006). 78 Including the ACLU, the Republican National Committee, and the National Rifle Association. See McConnell v. FEC, 540 U.S. 93, 93 (2003). 79 Id. face such restrictions.80 They argued, in essence, that the Act’s definition of electioneering communications was underinclusive. The Supreme Court dismissed this contention, citing Buckley v. Valeo for the proposition that Congress has the “authority to act incrementally in regulating this area.”81 The plaintiffs also attacked the Act’s reporting and disclosure requirements, arguing that “political campaigns and issue advocacy constitute protected press activities.”82 The Court dismissed this contention outright.83 The Court also held that the press exemption does not discriminate against non-media entities because it “excepts news items and commentary only. . . .”84 Thus, the BCRA’s definition of electioneering communications was held constitutional.85 A. When Does the Exemption Apply? Several subsequent court challenges and FEC rulings have led to the adoption of a two-prong test to determine the applicability of the press exemption to individual cases.86 The exemption applies when (1) a qualifying press entity (2) spends resources performing a proper press function.87 1. Qualifying Press Entity Prior to the implementation of the new rules, an entity had to be a broadcasting station,88 cable television station, “bona fide”89 newspaper, “bona fide” magazine, or other “bona fide” periodical publication to qualify as a press entity.90 Additionally, “[o]nly magazines and periodicals which ordinarily derive their revenues from subscriptions and advertising would be considered 80 Zubowicz, supra note 76, at ¶ 9. Id. 82 Id. at ¶ 10 (citing Brief for Congressman Ron Paul at 39, McConnell v. FEC, 540 U.S. 93 (2003) (No. 02-1747)). 83 McConnell, 540 U.S. at 209 n.89. 84 Id. at 208. 85 Id. at 224. 86 Zubowicz, supra note 76, at ¶ 13. 87 Id. 88 “[T]he term ‘broadcaster’ . . . include[s] broadcasting facilities licensed by the Federal Communications Commission, as well as networks.” Funding and Sponsorship of Federal Candidate Debates, 44 Fed. Reg. 76,734, 76,735 (Dec. 27, 1979). 89 A “bona fide” newspaper is “a publication of general circulation produced on newsprint paper which appears at regular intervals. . .and which is devoted primarily to the dissemination of news and editorial opinion to the general public.” Id. 90 Id. 81 ‘bona fide,’”91 and even then only if they were “in bound pamphlet form, appearing at regular intervals . . . and containing articles of news, information, opinion and entertainment . . . . “92 However, the new rules’ extension of the definition of “media” to include websites and other Internet communications specifically eliminates several of This these requirements with regard to Internet communications.93 modification abolishes the bound-pamphlet requirement for Internet communications and websites.94 Additionally, the regular-interval requirement for periodical publication is replaced by a more dynamic general frequency requirement.95 2. Proper Press Function Once an individual or organization qualifies as a press entity, “the commission must determine whether the activity at issue [is] a proper press function.”96 If the entity is not using its resources to cover or carry a news story, commentary, or editorial, then the exemption’s protections obviously do not attach to its conduct.97 In determining the eligibility of the activity at issue for the press exemption, the FEC considers two criteria: (1) whether the press entity is owned or controlled by a political party, political committee, or political candidate and (2) whether the press entity is acting like a member of the media in conducting the activity at issue.98 a) Political Control Political parties, committees, or candidates may disseminate content that qualifies for the press exemption. However, when an entity is under political control, it has a higher burden of proof that it is acting as a news 91 Id. Id. 93 Draft Rules, supra note 49, at 75. 94 Id. at 83. 95 Id. 96 Zubowicz, supra note 76, at ¶ 17 (citing FEC v. Phillips Publ’g, Inc., 517 F. Supp. 1308, 1312-13 (D.D.C. 1981)). 97 See FEC Advisory Op. 1982-44 (Aug. 27, 1982), available at http://ao.nictusa.com/ao/no/820044.html. 98 Reader’s Digest Ass’n v. FEC, 509 F. Supp. 1210, 1215 (S.D.N.Y. 1981); see e.g., Phillips Publ’g Inc., 517 F. Supp. at 1313; FEC Advisory Op. 2000-13 (June 23, 2000), available at http://ao.nictusa.com/ao/no/200013.html; FEC Advisory Op. 1996-48 (Dec. 6, 1996), available at http://ao.nictusa.com/ao/no/960048.html; FEC Advisory Op. 1982-44, supra note 97. 92 organization.99 “The entity must show that its media content consists of a bona fide news account that is widely disseminated to the public. In addition, the organization must demonstrate that it is providing ‘reasonably equal coverage’ to opposing candidates that are in the area where the . . . activity occurs.”100 Thus, the scope of the exemption is extremely limited for entities under political control.101 b) Press Function In addition to establishing itself as free from political control, an entity must also demonstrate that it is engaged in a legitimate media activity for it to be subject to the exemption.102 A genuine press entity which is not under political control will not be subject to rigorous scrutiny and will probably be covered by the exemption.103 If it is clear that the press entity’s conduct was not a legitimate press activity, then that conduct will not be covered by the exemption.104 There are very few situations in which the FEC has concluded that a press entity’s conduct was inappropriate. For example, a publication that endorses a particular candidate for federal office and solicits contributions can still qualify for the exemption as long as the publication instructs individuals to send the contributions directly to the candidate and does not collect the contributions itself.105 The FEC has, however, refused to protect even seemingly innocuous activity that benefits particular candidates106 when that activity deviates from the Commission’s understanding of traditional media practices.107 99 Zubowicz, supra note 76, at ¶ 18. Id. 101 Id. 102 Reader’s Digest Ass’n., 509 F. Supp. at 1215. 103 Zubowicz, supra note 76, at ¶ 18. 104 Reader’s Digest Assoc., 509 F. Supp at 1215. 105 FEC Advisory Op. 1980-109 (Oct. 6, 1980), available at http://ao.nictusa.com/ao/no/800109.html. 106 FEC Advisory Op. 1988-47 (Nov. 8, 1988), available at http://ao.nictusa.com/ao/no/880047.html (the exemption did not apply where a political magazine wanted to distribute free copies to various federal candidates because such a distribution was not part of a press entity’s normal business function). 107 FEC Advisory Op. 2004-7 (Apr. 1, 2004), available at http://ao.nictusa.com/ao/no/040007.html (concluding that MTV’s attempt to place various election-related materials on its website and distribute these materials at community events was not an action typically performed by a press entity). 100 B. Application of the Press Exemption to Online Content Prior to the recently-enacted FEC rules,108 the FEC provided little guidance about the application of FECA to online material.109 However, past FEC advisory opinions and prior case law did suggest ways to apply the exemption to some online content.110 Now, with the advent of the draft rules, the FEC has explicitly stated its intent to apply the press exemption to almost all forms of Internet communication, including the online speech of (1) traditional press entities such as broadcasting stations, newspapers, magazines, and periodical publications; (2) press entities that only have an online presence; (3) bloggers and other individuals; and (4) issue advocacy groups.111 1. Online Speech of Traditional Media Entities Because traditional media entities are already entitled to a press exemption regarding their broadcasting and publishing, there is little reason not to apply the exemption when a traditional broadcasting station or publisher places the same content online as it prints or broadcasts in its traditional format – assuming that the website is not under political control and the content is part of the entity’s press function. As there is no meaningful distinction to be made between the print and online versions of a traditional media entity, the press exemption likely applied to them even before the draft rules were enacted.112 Similarly, the exemption was also likely to apply when a traditional broadcasting station or publisher placed different content online than what it broadcasted or published.113 This follows logically, given that the online content is merely a sign of the traditional press entity’s desire to expand its product in the Internet environment.114 Assuming that the content is a valid press function, there appears to be nothing unique about it that would justify a departure from the exemption. In fact, the FEC had already concluded that content that is only available online can be subject to the press exemption,115 and that coverage of national party conventions by an entity that normally covers national politics qualifies for the press exemption under the news story and commentary categories.116 Since the creation of the press exemption, the FEC has repeatedly expanded 108 109 110 111 112 113 114 115 116 Draft Rules, supra note 49, at 75. Zubowicz, supra note 76, at ¶ 32. Such online content included that published by traditional newspapers. Draft Rules, supra note 49. Zubowicz, supra note 76, at ¶ 33. Id. at ¶ 34. Id. FEC Advisory Op. 2000-13, supra note 98. Id. its scope as applied to online content. The Commission has concluded that the press exemption applies to the broadcasters of a fictional show that includes depictions of or discussions about actual federal candidates,117 as well as the online efforts of a TV network to promote and conduct a “Prelection” via email, text messaging, and the web.118 The FEC has explicitly recognized the applicability of the exemption to the Internet, stating that “the media exemption applies to media entities that cover or carry news stories, commentary and editorials in traditional media such as printed periodicals or television news programs.”119 The practical result of this amendment appears to be that traditional media entities publishing content which would be subject to the press exemption if published in a traditional medium will remain protected when published online.120 2. Media Entities That Only Have an Online Presence Several websites could be classified as media entities even though they only exist online and thus do not fit neatly under the previous versions of the press exemption. Websites like CNET,121 Salon.com,122 and Slate Magazine123 can only be found online, and they offer “original news, commentary, and editorial content in a format that cannot easily be categorized as a newspaper, magazine, or other periodical publication.”124 They are not controlled by political parties, committees, or candidates, and they engage in a press function by publishing news content. The FEC initially rejected the idea that an online-only entity could qualify for the press exemption.125 However, the Commission has concluded that the exemption applies to an electronic town hall meeting, featuring candidate remarks, questions from a live audience, and e-mail questions from online Applying its two-prong test, the FEC concluded that the users.126 “broadcaster,” Bloomberg L.P. (“Bloomberg”), was a press entity when it 117 FEC Advisory Op. 2003-34 (Dec. 19, 2003), http://ao.nictusa.com/ao/no/030034.html. 118 FEC Advisory Op. 2004-7, supra note 107. 119 Draft Rules, supra note 49, at 75. 120 Id. at 76. 121 CNET News, http://news.com.com (last visited Jan. 16, 2007). 122 Salon.com, http://www.salon.com (last visited Jan. 16, 2007). 123 Slate Magazine, http://www.slate.com (last visited Jan. 16, 2007). 124 Zubowicz, supra note 76, at ¶ 39. 125 FEC Advisory Op. 1996-2 (Apr. 25, 1996), http://ao.nictusa.com/ao/no/960002.html. 126 FEC Advisory Op. 1996-16 (May 23, 1996), http://ao.nictusa.com/ao/no/960016.html. available at available at available at provided news and commentary, performing a publication function for computer users even though those users were not journalists.127 However, it was important to the FEC that Bloomberg maintained editorial control over the way that the content was presented.128 The FEC’s new rules eliminate the uncertainty of the FEC decisions over the years, explicitly protecting such entities by adding “websites” and “any Internet or electronic publications” to the list of “media” in the press exemption.129 “In so doing, the Commission recognizes that the media exemption is available to media entities that cover or carry news stories, commentaries, or editorials solely on the Internet . . . .”130 3. Individuals Who Publish Online Given the current state of technology, it is extremely easy for an individual to become an online content-publisher.131 The Supreme Court has recognized the unique ability of the Internet to enable anyone to contribute to the creation and dissemination of constitutionally-protected speech.132 Many popular blogs contain original content and offer links to other online sources of political content, such as newspapers, columns, and editorials. These blogs sometimes link to breaking stories before any other news outlet, including traditional media giants.133 Unlike traditional media entities, bloggers have few financial resources. Until recently, the FEC had declined to address the potential application of the press exemption to such individuals. Prior to the FEC Advisory Opinion regarding the website Fired Up!,134 as well as the implementation of the new FEC rules, the analytical framework in place could have conceivably protected a blogger who (1) regularly published online news, commentary, or editorial content; (2) was not controlled by a political party, political committee, or candidate; and (3) acted like a traditional press entity. Theoretically, a blogger who published an election-related article online a week before an election would not have been able to take advantage of the exemption.135 On the other hand, a blogger who regularly published political material could have argued that the election content was simply a standard feature of frequently published news, commentary, and editorials. 127 128 129 130 131 132 133 134 135 Id. Id. Draft Rules, supra note 49, at 75. Id. at 75-76 Reno v. ACLU, 521 U.S. 844, 870 (1997). Id. See, e.g., Drudge Report, http://www.drudgereport.com (last visited Jan. 16, 2007). See infra notes 147-52 and accompanying text. Zubowicz, supra note 76, at ¶ 71. Such an argument would have been difficult, however, due to the requirement that publication occur at regular intervals.136 Most bloggers, even if they publish frequently,137 do not publish in regular intervals. With the advent of the FEC advisory opinion in Fired Up!,138 and especially with the new FEC rules,139 it appears that bloggers and other individuals communicating on the Internet will be protected by the press exemption. The new FEC rules make individual bloggers eligible for the media exemption as if they were traditional media entities.140 As such, bloggers are required to publish regularly, perform a legitimate press function, and not be controlled by a political party, committee, or candidate to be included in the media exemption.141 4. Certain Online Speech of Issue Advocacy Groups142 Issue advocacy groups use many different means of communication to get out their messages. In addition to television, print advertisements, and use of volunteers, these groups also use mail, e-mail, and telephone calls to disseminate their message and to mobilize voters, spending massive amounts of money in the process.143 As such, these groups are fairly strictly regulated by campaign finance laws; they can generally only be categorized as qualifying press entities if they disseminate information to a large, generalized audience.144 136 Funding and Sponsorship of Federal Candidate Debates, 44 Fed. Reg. 76,734, 76,735 (Dec. 27, 1979). 137 Bloggers often publish multiple times a day but then go days, weeks, or even months without publishing at all. 138 See infra notes 147-52 and accompanying text. 139 Draft Rules, supra note 49. 140 Id. at 82. 141 Id. at 72-83. 142 The term “issue advocacy group” refers to an organization that pursues specific public policy objectives through press and non-press activities. 143 Annenberg Public Policy Center, IssueAds@APPC: Previous Reports, available at http://www.annenbergpublicpolicycenter.org/issueads/reports_previous.htm (last visited Jan. 16, 2007) (spent an estimated $509 million on issue advocacy during the 1999-2000 election cycle); ANNENBERG PUBLIC POLICY CENTER, LEGISLATIVE ISSUE ADVERTISING IN THE 107TH CONGRESS 6 (2003), http://www.annenbergpublicpolicycenter.org/issueads/appc_issueads107th.pdf (issue advocacy groups spent an estimated more than $105 million on print and television issue advertising in Washington, D.C. during the 107th Congress). 144 See FEC Advisory Op. 1982-58 (Feb. 18, 1983), available at http://ao.nictusa.com/ao/no/820058.html (the exemption did not apply to an in-house magazine for the company); FEC Advisory Op. 1984-23 (June 22, 1984), available at In rejecting the issue advocacy organization Massachusetts Citizens for Life’s (“MCFL”) application for a press exemption, the United States Supreme Court stated that the nature of election-related materials is essential to eligibility for the press exemption.145 However, by distinguishing MCFL from other for-profit corporations, the court implied that an issue advocacy group could conceivably be considered a press entity and thus could be eligible for the press exemption.146 Recently, the FEC clarified its position on the online speech of issue advocacy groups in its response to an advisory opinion request by Fired Up! LLC (“Fired Up”).147 The Commission’s advisory opinion concluded that Fired Up’s Internet activities, as described, were entitled to the press exemption. 148 Fired Up qualified as a press entity because it is not owned or controlled by any political party, committee, or candidate, and its websites are both available to the general public and are the online equivalent of a newspaper, magazine, or other periodical publication.149 http://ao.nictusa.com/ao/no/840023.html. 145 FEC v. Mass. Citizens for Life, 479 U.S. 238, 249-50 (1986) (the exemption did not apply to an issue advocacy organization’s special election-year newsletter because it differed from its regular newsletters in several important ways). 146 The Court noted that MCFL: (1) did not amass the same degree of wealth; (2) was formed to disseminate political ideas, not political capital; and (3) did not amass its resources based on its success in the economic marketplace, but based on its popularity in the political marketplace. Id. at 259. The Court also noted that, because individuals who do support it are aware of its ideology, there are fewer concerns that it will exert a corrupting influence on politics. Id. But see FEC v. Beaumont, 539 U.S. 146, 159-60 (2003) (direct contributions of advocacy corporations should be treated the same as direct contributions from traditional business corporations because “the corrupting potential underlying the corporate ban may indeed be implicated by advocacy corporations”). 147 Fired Up intended to establish a network of state-specific websites to provide political information relevant to individuals who live in a given state. Access to Fired Up’s websites is free and available to the public without registration or subscription. Some of the founders of Fired Up are former operatives of the Democratic Party, but the company generates revenue only from the sale of merchandise. The content of the websites is unabashedly progressive and is mostly generated by users of the site. However, some content is posted by one of the founders. Most of the content is editorial, but some is original news reporting. Guest editorials are also occasionally written by the founders and other individuals. See Fired Up!, http://firedupamerica.com/ (last visited Jan. 16, 2007). 148 FEC Advisory Op. 2005-16 (Nov. 18, 2005), available at http://ao.nictusa.com/ao/no/050016.html. 149 The FEC based this conclusion on the fact that the primary function of the websites is to provide news and information to readers through commentary, quotes, summaries, hyperlinks, and original reporting. Additionally, Fired Up retains editorial control over the content displayed on its websites, much like how newspaper or magazine editors determine The FEC specifically noted that reader comments appearing on Fired Up’s websites are similar to letters to the editor and do not alter the basic function of Fired Up.150 The Commission further noted that it had already expressly extended the press exemption to qualifying activities that appear on the Internet.151 An entity otherwise eligible for the press exemption would not lose its eligibility merely because of a lack of objectivity in a news story, commentary, or editorial, even if the news story, commentary, or editorial expressly advocated the election or defeat of a clearly identified candidate for federal office.152 Despite these “victories,” it remains more difficult for issue advocacy groups to demonstrate that they are acting as press entities than it is for traditional media organizations to do so, because of advocacy groups’ stated desire to influence policy choices and elections.153 In order to qualify for the press exemption, such groups likely “need to show a history of publishing online news, editorial, and commentary content, especially if they wish to broadcast or publish material that explicitly advocates the election or defeat of federal candidates.”154 The FEC’s new rules do not appear to alter this basic framework, despite expanding the definition of “media entity” to include “website[s] . . . [and] any Internet or electronic publication . . . .”155 On its face, this change appears to suggest that instead of being required to show a history of publishing news, editorial, or commentary, issue advocacy groups may only have to show that they are not “controlled by any political party, political committee, or candidate . . . .”156 Further, issue advocacy groups may even be free to disseminate content on the Internet even if they publish only in an election which news stories, commentaries, and editorials appear in their own publications. Id. 150 FEC Advisory Op. 2005-16, supra note 148 (citing FEC Advisory Op. 1996-16, supra note 126). 151 In its Advisory Opinion 2000-13, the Commission found that iNEXTV, a company operating a network of specialized news and information websites with limited original content, qualified for the press exception through its Internet activities even though it lacked a traditional “offline” media presence. The Commission concluded that iNEXTV and its EXBTV website were press entities “both as to their purpose and function.” FEC Advisory Op. 2000-13, supra note 98. 152 FEC Advisory Op. 2005-16, supra note 148 (citing FEC, Matter Under Review 5440, First General Counsel’s Report (May 17, 2005), available at http://eqs.sdrdc.com/eqsdocs/00004578.pdf. 153 Zubowicz, supra note 76, at ¶ 52. 154 Id. 155 Draft Rules, supra note 49, at 86-87. 156 Id. at 87. year.157 This appears to be true given the FEC’s intent to exempt bloggers even though they do not have “a history of publishing” and do not publish “at regular intervals.” It is difficult to see any way to distinguish bloggers and issue advocacy groups in this regard. The FEC addressed this problem, however, by changing its interpretation of “periodical publication.” The FEC had interpreted “periodical publication” to require an entity to publish “in bound periodical form”158 and “at regular intervals.”159 In the draft rules, the FEC distinguished that opinion by exempting only Internet communications made on a “frequent, but perhaps not fixed, schedule.”160 While it remains unclear what level of infrequency will result in ineligibility for the media exemption, issue advocacy groups will be able to apply for the media exemption if they publish (either online or off) at least as frequently, with at least as much regularity, as the typical blogger. C. Proposed Reform of the Press Exemption The goal of any regulation of online political speech must be to confer the highest possible protection to First Amendment rights.161 A website with a large quantity of news, commentary, and editorial content should not have to be concerned about whether it must file disclosure reports with the FEC because it endorses a presidential candidate. Ultimately, regulations should overprotect rather than underprotect online freedom of political speech. Otherwise a certain amount of political commentary will be chilled.162 The current FEC regulations are an excellent start towards protecting political speech online. The FEC has wisely chosen to overprotect First Amendment activities in light of the current changes in the dissemination of news brought on by the accessibility of the Internet. Yet while the FEC’s restraint is commendable, they have failed to address several concerns. 157 This would appear to contradict the ruling in FEC v. Mass. Citizens for Life, which specifically refused to grant the exemption where an issue advocacy organization published newsletters only in election years. 479 U.S. 238 (1987). 158 FEC Advisory Op. 1980-109, supra note 105. 159 Id. 160 Draft Rules, supra note 49, at 83. 161 Id. at 73. 162 FEC v. Central Long Island Tax Reform Immediately Comm., 616 F.2d 45, 54-55 (2d Cir. 1980). 163 Reno v. ACLU, 521 U.S. 844, 882 (1997).