Whether political speech of ordinary citizens should be subject to different regulation because it is conducted on-line

SUMMARY

The explosion of information on the Internet has had several implications for the way political campaigns have been conducted. In fact, political speech conducted on-line has raised new challenges to the First Amendment¹. However, while several attempts of regulation have been initiated for the last few years, on-line political speech of ordinary people remains mostly free of any particular regulation.



DISCUSSION

While the use of the Internet functionality in political speech has raised various issues, this paper focuses only on whether political speech of ordinary citizens should be subject to different regulation because it is conducted on-line. Other issues, such as the constitutional safeguards that may be affected by the use of this technology, are implicated but not discussed hereafter.


In 1996, presidential candidates communicated on websites for the first time. Since then, the Internet has transformed national political elections to become an integral part of any successful campaign strategy. The Internet technology has given rise to new forms of political speech and press, such as bloggers and other alternative media. Therefore, through empowering ordinary citizens as new political actors, the Internet has embodied the marketplace of ideas, while bringing new challenges to the First Amendment protection.

While the success of the Internet functionality as a tool of political engagement has brought scrutiny from Washington policymakers and the Federal Election Commission (“FEC”) about whether the Internet speech should be regulated or not, many have argued that the Internet should “self-regulate” because of the necessary failure of any governmental regulatory system to effectively adapt to the developing technology, and the unintended consequences of any regulatory regime.


“Congress shall make no law (…) abridging the freedom of speech, or of the press.” The language of the First Amendment of the Constitution of the United States is unambiguous, and the court has extended such free speech protection in recent years to those groups generally considered hateful and unacceptable by the public, as well as to the Internet speech. Cuffley v.Mickes, 208 F.3d 702 (8th Cir. 2000), cert. denied sub nom.; Yarneel v. Cuffley, 532 U.S. 903 (2001); Cubby v. CompuServe (S.D.N.Y. 1991) (ruling that Compuserve is held to the standard of a library with regard to its content.).

The Fathers of the Nation certainly aimed to protect political speech and the right to criticize the government. James Madison himself recognized a person’s “opinions and the free communication of them” as “a sacred form of property”; the idea that government could restrict political speech would have been the very definition of “tyranny”, as per his writings in the Federalist Papers. More recently, the Supreme Court looked at “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” to grant the First Amendment’s protection. Miller v. California, 413 U.S. 15 (1973).


Yet, Congress has attempted to regulate on-line political speech numerous times, especially through campaign-finance rules.

The basis of this political regulation is the Federal Election Campaign Act (“FECA”), enacted in 1971. Since then, the Supreme Court has tried to affect constitutional protection of political speech when campaign finance was an issue, starting in 1976, by authorizing the “balancing” of free speech concerns with the “governmental interest” to prevent “the actuality and the appearance of corruption.” See, Buckley v. Valeo, 424 U.S. 1 (1976).

In 2002, the Bipartisan Campaign Reform Act (“BCRA”) amended the FECA to include the term “federal election activity” with “public communication”, defined in Section 431(22) as “a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising.” While the FEC was reluctant to follow such an Act, this Commission published new proposed rules in April 2005 to conform to the Shays ruling. See, Shays v. FEC, 337 F.Supp.2d 28 (D.D.C. 2004) (holding that the FEC could not completely exempt Internet activity from regulation).

In 2005, the H.R. 1606 - On-line Freedom of Speech Act was presented to amend the “FECA” to exclude Internet communications from the definition of public communication, thus exempting web sites, blogs, and on-line advertisements from regulation under federal campaign finance laws. Although the bill proposed to reinforce the Internet’s regulation-free status, such text failed to be enacted, marking “a sad day for one of our nation’s most sacred rights: freedom of speech”, as Dennis Hastert reflected. “The last thing this Congress should be doing is trying to stifle public debate on-line.” The H.R. 1316 - Pence-Wynn 527 Fairness Act, proposed in the same purpose, was not more successful.

So was the H.R. 4900 - Internet Free Speech Protection Act, presented in 2006 to amend the “FECA” to exclude certain communications made over the Internet from certain requirements of such Act. This bill “offered to ‘translate’ CFR regulations into the on-line sphere, instead of declaring such regulation obsolete and inapplicable to on-line activity.”

Lately, the H.R. 3714 - Freedom of Political Speech Act was presented in October 2007 to amend the “FECA” to repeal restrictions relating to electioneering communications.



While Washington policymakers have tried to apply political speech regulations to speech conducted on-line, free speech partisans, such as the Center for Democracy and Technology, that has advocated for free expression and privacy in the new global information and communications technologies, have militated against applying the complex regulations to the Internet political activities of ordinary people. They have also convinced the FEC to build into the regulations some kind of protections for individuals’ on-line political activities. Indeed, the vast majority of political activities of ordinary citizens conducted on the Internet is left free from any regulation.

This approach seems to be better suited to political speech conducted on-line. Indeed, free expression on the Internet enhances democracy and education. As Professor Lessig points out, “the experiences of communities in different countries indicate that few things could be more threatening to authoritarian regimes than access and use of the medium which knows no boundaries and is very hard to control.” “Technology has exploded the opportunity for people to comment upon and spread political speech as part of democracy.” “Individuals and communities have been using the new-found freedom on-line to link, interact and work collectively in this global work space.”

Indeed, by its nature, the Internet is open to millions of speakers and readers around the world - Pew reports that seventy-five million Americans use the Internet to receive election information or discuss politics. By essence, those receiving political information over the Internet can choose their materials depending on their sources, authors, etc. In fact, as Republican commissioner Michael Toner states, “this ‘marketplace of ideas’ is virtually a limitless resource, where the speech of one person does not interfere with the speech of anyone else.”

Further, despite the FEC’s attempts to narrow the reach of its rules over Internet speech, any complex regulation regime could have a “chilling effect” on political speech of ordinary citizens, even more when such is conducted on-line.

Finally, and more generally, are Washington policymakers able to effectively adapt any rules to such a rapidly developing technology?




CONCLUSION

The technological abundance of information and communication on the Internet has had both immediate and lasting implications for the way political campaigns have been conducted recently. However, while policymakers have initiated several attempts of regulation in the last few years, on-line political speech of ordinary people remains mostly free of any particular regulation. Rather, such speech, left to flourish, needs to conform to, at a bare minimum, the unspecific United States Code’s and the Chapter 11 of the Code of Federal Regulations’ provisions, the court decisions as well as the “explanations and justifications” of the FEC’s regulations and advisory opinions.

However, the development of on-line political speech of ordinary citizens has raised new challenges. As an illustration and as Professor Lessig points out, “this fundamental shift in power has created a possibility for every individual to be a publisher.” While “old” media rules may have unintended consequences when imposed on this technology, other solutions may be proposed, such as refining the press exemption to adapt to the Internet speakers, or to reconsider the FEC’s power; but is legislation the right mean of achieving that?