Wednesday, March 16, 2005

Patterico has thrown down the gauntlet to the FEC regarding his blogging activities...

While I wish him well, and will there to donate to his legal defense fund, I'd like to offer the following cautionary points:

(1) There's a clear precedent that some regulation of speech is allowed. It goes beyond the old standard of not yelling "Fire" in a movie theater. For example, commercial speech has been held to be less 'free' than other forms of speech.

(2) There's also a clear precedent for witholding protections from those who are not 'bona-fide' journalists and publishers. In Lowe, the Supreme Court looked at that issue in holding that the SEC had no jurisdiction. More recently, the very same issue was involved in a CFTC enforcement action . And, as we all know, just recently, a judge refused to consider bloggers bona fide journalists, in ordering them to reveal their sources to Apple.

(3) Notwithstanding Patterico's well argued logic, a majority of the Justices on the Supreme Court are clearly sympathetic to imposing restrictions and regulations on those participating in the political process. Proof of this is found in their willingness to endorse McCain-Feingold. The same Justices are also clearly willing to use whatever fractured logic they want in order to support their personal feelings.

(4) The FEC, like every other government agency, has an insatiable appetite for expanding its power and scope of jurisdiction. They also have much more money in the bank to devote to legal fights than their targets. And, while I don't know for certain about the FEC, with the SEC, there is a clear relationship between the size of their budget and their aggressiveness in seeking targets.

(5) Assuming the FEC is like other government agencies, we could expect their strategy to be to go after those the FEC perceives as less able and willing to devote the resources - both financial and time - to fighting back. Patterico may be a very good attorney, but the last I checked, he has a day job and a family and thus would be hard pressed to devote 80+ hours a week to his defense. And, unless prosecutors in California make more money than I think they do, or unless he has some other source of income, he's going to be hard pressed to come up with the dollars he'll need (a publishing company I'm familiar with is fighting an agency over a similar question of jurisdiction and they've laid out upwards of $1 million and have yet to go to trial).

(6) One can only taunt a government agency just so far before they will come after you... and hard. You want to cheat on your taxes, fine, give it a try, just don't brag about it on the airwaves (I'm trying to make a point, not encourage tax evasion). This isn't Tiananmen Square, where the brave Patterico is going to stare down the FEC tanks. The FEC knows full well their reputation is on the line. They'd be the laughing stock of agencies if the likes of Patterico, Beldar and their comrades-in-arms are seen thumbing their nose at the SEC - the FEC will not stand by and be laughed at.

While I wholeheartedly agree with him, if I were his attorney, which I'm not, I would really, really, really, advise him not to pick this fight. If he does ignore that advice, as I expect he'll do, I'll root for him. As I said above, I'll contribute to his defense fund, I'll give him a place to stay when he has to come to DC for the festivities. If I were a praying type of guy, I'd include him in those prayers. But since I don't know how many times God will be there for me, I hope Patterico understands if I save my prayers for keeping my kids and wife safe. I am going to be in Las Vegas in a couple of weeks (business trip, really!), and I think I'll look at getting some money down on the FEC (the casinos list odds on everything, don't they?). Because I think Patterico will - not should, but will - lose, and maybe the money can go to paying his fines...

And, I think I'll do the same for Beldar, who also seems to be spoiling for a fight...