FEC: Blogs Are As Much "Press" As Everyone Else

By acbonin Posted in User Blogs — Comments (6) / Email this page » / Leave a comment »

From the Diaries...friends - this is HUGE news, and a big win for blogs. In addition, it's a nice kick to the teeth of those who would stamp out free speech. - Krempasky

This morning, the Federal Election Commission unanimously approved Advisory Opinion 2005-16, agreeing that the Fired Up! sites were entitled to the same press exception from campaign finance laws as are the New York Times, National Review and Sean Hannity.

You can read the opinion via this PDF link, and my official comments on that draft (on behalf of Kos, Atrios and Matt Stoller) over here. Here's your key parts from today's opinion, emphasis mine:

An examination of Fired Up's websites reveals that a primary function of the websites is to provide news and information to readers through Fired Up's commentary on, quotes from, summaries of, and hyperlinks to news articles appearing on other entities' websites and through Fired Up's original reporting. Fired Up retains editorial control over the content displayed on its websites, much as newspaper or magazine editors determine which news stories, commentaries, and editorials appear in their own publications. Roy Temple, acting on behalf of Fired Up, not only produces much of the content but also exercises day-to-day control over which stories are featured. 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.

According to the House report on the 1974 amendments to the Act, the press exception made plain Congress's intent that the Act would not "limit or burden in any way the first amendment freedoms of the press . . ." and would assure "the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns." . . .

Fired Up is a for-profit LLC and is not owned or controlled by any political party, political committee, or candidate. Given that Fired Up's operation of its websites is at the core of its activities as a press entity, its provision of news stories, commentary, and editorials on its websites falls within Fired Up's legitimate press function. Thus, because Fired Up is a press entity, and neither it nor its websites are owned or controlled by any political party, political committee, or candidate, the costs Fired Up incurs in covering or carrying a news story, commentary, or editorial on its websites are exempt from the definitions of "contribution" and "expenditure." The Commission notes that an entity otherwise eligible for the press exception 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 advocates the election or defeat of a clearly identified candidate for Federal office. See First General Counsel's Report, MUR 5440 (CBS Broadcasting, Inc.) ("Even seemingly biased stories or commentary by a press entity can fall within the media exemption.")

In addition, as part of its written request, Fired Up! noted that its sites would "endorse, expressly advocate, and urge readers to donate funds to the election of Democratic candidates for federal state, and local office." The FEC did not challenge this aspect of Fired Up's activities.

What This Means: Under the Commission's rules, "any person involved in a specific activity 'indistinguishable in all its material aspects'" from Fired Up! can rely upon this ruling unless Congress acts otherwise, and you can imagine what sites might feel better-protected today. Any such site engaged in news, commentary and editorial can continue in such activities without fear of falling into FEC filing requirements turning groups into political committees or incorporated sites into outlaws. [N.B. RedState.org has chosen to organize and file as a political committee, and is not directly affected by today's outcome.]

This is a tremendous victory for online free speech and will impact on the current debate in Congress. Kudos to Marc Elias and Brian Svoboda of the Perkins Coie law firm who are responsible, as well as the five FEC Commissioners who understood that neither the First Amendment, the statutes nor common sense could tolerate a different result.

I'm happy for this decision by Steven Den Beste

But I remain appalled that Congress passed, the President signed, and SCOTUS approved the gross violation of the First Amendment known as the "McCain-Feingold Act".

I'm glad for this decision, but it should never have been a subject of dispute in the first place.

The idea that "You can say whatever you want about politics as long as you don't spend any money distributing your words" is preposterous.

Reply To This — User Info — #1

Mixed Feelings... by geekWithA45

As a blogger, I feel a certain amount of relief being classified as "Press", and therefore exempted from getting my door bashed in.

As an American, I am offended that this is so not because I'm an individual American excercising free speech, but because I've been classified as X,Y or Z.

I'll betcha that sooner or later, someone's going to monkey with that classification.

Reply To This — User Info — #2

Now that we're "Press" by cehwiedel

and everybody has given two cheers to the FEC -- after all, it couldn't repeal McCain-Feingold -- we need to pay attention to the Online Freedom of Speech Act and to actually repealing McCain-Feingold.

We can even safely advocate against the re-election of John McCain: McCain-Feingold delenda est.

Reply To This — User Info — #3

I couldn't agree more by PB Almeida

I'm happy for this decision...But I remain appalled that Congress passed, the President signed, and SCOTUS approved the gross violation of the First Amendment known as the "McCain-Feingold Act".

Any GOP presidential aspirant who makes its repeal a central plank of his candidacy will go a long way toward getting my vote, and my contribution. I'm frankly worried that I hear very little discussion of this possibility, or of any sort of organized effort to jettison this breathtakingly wrong-headed and un-American legislation. My worry is that as time goes by, McCain-Feingold will become such a firmly established feature of the backdrop to American politics, that people will forget there was a time when it was none of the government's business how much you or I contribute to further the political ideas we support. People need to remember: the Supreme Court (sadly) decided that the United States Constitution allows McCain-Feingold to exist. But it certainly doesn't require its existence.

Reply To This — User Info — #4

If only "Everyone Else" had Free Speech by morganm

First, it's a sad day when we celebrate an unelected agency giving us permission to the First Amendment, no guarantees for the future, .

Second, inasmuch as this can be considered a victory, it is a victory for a tiny minority of people that write online.

Why is online Freedom of Expression more important than offline? I concur completely with the people above, we can't let this just drop and allow McCain-Feingold sit and get more and more established.

It would be exciting to see any move in that direction, unfortunately it's a movement that never gets much further than the comments section here.

Reply To This — User Info — #5

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