Friday, March 25, 2005

The post at Q&O is consistent with the concern raised about the FEC's possible regulation of bloggers... specifically, the concern about bloggers being exposed to regulation if they (1) own their blog through a corporation and/or (2) post on equipment owned by others (for example, at work, the local Starbucks, etc.)...

I guess this just proves that there's nothing like having your own ox gored to get one to wake up and smell the manure...

For an awful long time, there have been rules prohibiting corporations from getting involved in corporate activities - corporations can't donate money or resources to political campaigns, they can't pressure employees or suppliers to contribute money or time to campaigns, corporations can't endorse candidates. Pretty much everything is off-limits: P/R departments can't issue press releases in favor of one candidate or another, managers can't order their staff to write letters to the editors, call centers can't be offered to campaigns to conduct voter outreach.

And while these rules have long predated the blogosphere, I haven't noticed too many blogs getting their dander up over these restrictions on corporate political activity. On the contrary, I think it's safe to assume that those on the left are actually been supportive of keeping corporations out of the political process, while those on the right have probably been more upset about labor unions not being subject to the same rules as corporations than about corporations being subject to the rules in the first place. I haven't read too many opinions by the First Amendment lobby arguing that corporations are being denied their free speech rights.

But now that the FEC suggests that 'corporate' blogging would be just another off-limits activity for coporations, it's amazing how many blogs have so quickly discovered a distate for these rules. Bloggers are running on-line petitions, they've been promising civil disobedience. Actually, they're not calling for the ban on corporate political activity to be lifted, they're calling for 'corporate' bloggers to get a special dispensation from the FEC.

But should they be given special treatment?

Well, it shouldn't be because corporate bloggers are, for the most part, just little guys. The FEC's rules affect corporations of all sizes - mom-and-pop small businesses can't get involved in politics any more than the Apples, IBMs, GMs and Exxons have been able to get involved. The rule is straightforward: individuals can get involved in politics, corporations can not.

Nor should blogging be treated special because it involves the Internet. The Internet is merely a communications channel, indistinguishable in substance from the mail, the telephone, the airwave. It's nothing more than a medium for people to communicate with others. You can order products over the Internet just as you could use the phone or the mail. One can entertain using the Internet just as one could use television or radio. And one can annoy others using the Internet just as one could annoy them by using the telephone.

And there are many laws that apply to activities conducted over the Internet just as they apply to activities conducted through the mail, the telephone and the airwaves. Libel laws apply to the Internet just as they do traditional print. Anti-fraud laws have been used to prosecute those who commit fraud using the Internet just as those laws have been used to prosecute those who commit mail or wire fraud. All of which has gone uncriticized by bloggers.

Nor should bloggers be given special treatment because they're expressing their opinion. Corporations have limited free speech rights. As an example, the public relations department at Citigroup can't operate a blog which endorses political candidates. How can the FEC give a free pass to corporate bloggers to engage in political activity while keeping the likes of Microsoft on the sidelines? Why should Instapundit, Inc. be allowed to do what Exxon, Inc. can not?

To me, it's pretty simple: so long as corporations are precluded from engaging in political activity, there's no way to carve out an exception for 'corporate' bloggers. If bloggers feel there's an advantage to incorporating, they have to accept that there are disadvantages as well. Nobody's forcing them to incorporate; they can't (at least shouldn't) enjoy the benefits while b****ing about the down side.

As for the issue of individual bloggers wanting to blog using equipment used by corporations, I don't see much room for carving out an exception here either. Corporations aren't allowed to let their resources be used for political purposes. IBM couldn't open their doors to those wanting to come in and use IBM's equipment for organizing a rally, getting voters to the polls or fundraising. Given this, how does the FEC let Starbucks get away with setting up wireless networks that could be used for the same thing? How does the FEC not come after other corporations that are 'letting' its employees use corporate resources for political purposes? I don't see that they can. Corporations are also not allowed to let their employees get involved in politics while on the clock. So unless bloggers plan on punching off the clock every time they post, I don't see how their blogging is any different from an employee making fundraising telephone calls from the office during the workday.

So it looks like bloggers are screwed... at least those wanting to incorporate or blog while at work or blog while sipping a latte... This doesn't mean that the FEC won't cave (although I doubt the blogosphere has the power to pull that off) and carve out some exception that will supposedly be targeted to bloggers. But were they to do so, it would require some serious word games and would probably end up creating enough loopholes for all sorts of mischief.

Now, if one were to propose eliminating the rules against corporate involvement, that's another idea altogether...

More bloggers upset with these proposed rules Captain Ed, RedState, Professor Bainbridge, Polipundit, Wizbang, La Shawn Barber... all good people... but likely to be on the losing side.