What Is The Functional Difference

Last week, in an ironic sense of timing, the Federal Election Commission held a two day hearing on the future of blogging, the Internet and the regulation of campaign practices by bloggers on the Internet. I say ironic, because less than a week from the celebration of our Nation's birth, the FEC is considering the prohibition of a right we hold dear, that to speak our minds, in the electronic medium in the most protected of speech arenas--political speech.

For those of you who don't know what I am talking about, I urge to to visit this site, put up by Mike Krempasky.

The efforts of the FEC in this arena are troubling on a fundamental level. In essence, assuming the regulations offered by the FEC are implemented, the fact that bloggers and other internet activists post any information about a candidate for federal office, the writer could be forced to register and report that activity to the FEC. In short, if I say, Vote for Candidate X for president, these regulations COULD force me to register as a political committee.

The troubling part is that the FEC will be regulating speech based on the form of the speech, not the content (which would clearly be unconstitutional), nor on the speaker (also clearly unconstitutional). The FEC's distinction would be on the method of transmission of the political message.

Several commentators in this field have compared the modern blogger to the pamphleteers of hte past, the Tom Paines, James Madisons, Alexander Hamiltons and John Jay's of the colonial period. At the core, these commentators are not incorrect, but a more modern equivalent can be found--the guy in the park.

Assume for a moment a man puts on a t-shirt emblazoned with Frist for President or Hilary for President and walks into the neighborhood public park at noon on a Saturday. In a polite manner, using only his voice he beings to extoll the virtures of his chosen candidate. At the conclusion of each paragraph of virtues, he urges anyone within earshot to vote for his candidate. While most people might find this gentlemen to be a worst a nuisance, his actions are clearly constitutional and more importantly not regulated. Now, the man may be prohibited from using a loud speaker with out obtaining a permit or prohibited from making his speech at 2:00 am in the morning, but barring these permitted time, place, and manner restrictions, his actions are constitutionally protected.

What the FEC is considering at this time would make those same actions, if posted on teh man's blog, potentially a corrupting influence on the election process and thus in need of regulation. Note carefully, that the man is not paid by his candidates election committee. He may use some of the same words and slogans as his candidate, which could cause him to come into contact witht he coordinated expenditure rule and force him to register as a committee.

So the question is, what is the functaional difference between a man in the park on a Saturday afternoon and a man sitting at his keyboard at 3:00 am because he has insomnia? In terms of message--nothing. In terms of intent--nothing. The only difference is that the man at his keyboard is using the electronic soapbox and that is what the FEC may be regulating.

I have simplified my argument a great deal, as many who will read this will no doubt tell me. But at the core of the discussion between the public and the FEC on this proposed regulation is how much we are going to allow the government to regulate activity that is fundamental to our functioning democracy--the speaking of political views in a public forum. And so the question to the FEC is what is the functional difference between a man speaking his political thoughts in public and a man posting his political thoughts online?