What is “Legitimate Press Function”?

Brian Anderson’s “Shut Up, They Explained: The left’s regulatory war against free speech” should interest Chicagoboyz: in general, it desribes the regulatory effect on the marketplace of ideas; in particular on blogs. While not primarily political we occasionally make (and want to be free to make) political arguments. In this Wall Street Journal piece, Anderson argues: “Campaign-finance reform now has the blogosphere in its crosshairs.” Those sections continue below, but the editorial as a whole is of interest.

Campaign-finance reform now has the blogosphere in its crosshairs. When the Federal Election Commission wrote specific rules in 2002 to implement McCain-Feingold, it voted 4-2 to exempt the Web. After all, observed the majority of three Republicans and one Democrat (the agency divides its seats evenly between the two parties), Congress didn’t list the Internet among the “public communications”–everything from television to roadside billboards–that the FEC should regulate. Further, “the Internet is virtually a limitless resource, where the speech of one person does not interfere with the speech of anyone else,” reasoned Republican commissioner Michael Toner. “Whereas campaign finance regulation is meant to ensure that money in politics does not corrupt candidates or officeholders, or create the appearance thereof, such rationales cannot plausibly be applied to the Internet, where on-line activists can communicate about politics with millions of people at little or no cost.”

But when the chief House architects of campaign-finance reform, joined bySens. McCain and Russ Feingold, sued–claiming that the Internet was one big “loophole” that allowed big money to keep on corrupting–a federal judge agreed, ordering the FEC to clamp down on Web politics. Then-commissioner Bradley Smith and the two other Republicans on the FEC couldn’t persuade their Democratic colleagues to vote to appeal.

The FEC thus has plunged into what Smith calls a “bizarre” rule-making process that could shackle the political blogosphere. This would be a particular disaster for the right, which has maintained its early advantage over the left in the blogosphere, despite the emergence of big liberal sites like Daily Kos. Some 157 of the top 250 political blogs express right-leaning views, a recent liberal survey found. Reaching a growing and influential audience–hundreds of thousands of readers weekly (including most journalists) for the top conservative sites–the blogosphere has enabled the right to counter the biases of the liberal media mainstream. Without the blogosphere, Howell Raines would still be the New York Times’ editor, Dan Rather would only now be retiring, garlanded with praise–and John Kerry might be president of the U.S., assuming that CBS News had gotten away with its falsehood about President Bush’s military service that the diligent bloggers at PowerLine, LittleGreenFootballs and other sites swiftly debunked.

Are the hundreds of political blogs that have sprouted over the last few years–21st-century versions of the Revolutionary era’s political pamphlets–“press,” and thus exempt from FEC regulations? Liberal reform groups like Democracy 21 say no. “We do not believe anyone described as a ‘blogger’ is by definition entitled to the benefit of the press exemption,” they collectively sniffed in a brief to the FEC. “While some bloggers may provide a function very similar to more classical media activities, and thus could reasonably be said to fall within the exemption, others surely do not.” The key test, the groups claimed, should be whether the blogger is performing a “legitimate press function.” But who decides what is legitimate? And what in the Constitution gives him the authority to do so?

P.S. While I’m willing to acknowledge the slippery slope between art & porn, while I’m willing to acknowledge that a country need not in general fear porn, I’m pretty sure that it is regulation of political speech rather than of sexual materials that the founding fathers had in mind.