December 10, 2003
Whose blog is this?
Might my blog be prohibited from endorsing candidates for office within the magic number of days before an election?
Short answer: I don't know.
Long answer: I still don't know.
The decision is 298 pages long, so happy reading! I was concerned with language I found on pages 72, 80, 99.....
But I still couldn't make much sense out of the decision because they kept referring to the Act itself.
Looking elsewhere on the Internet, I finally found the McCain-Feingold Act.
Guess what? It runs another 89 pages -- some 13,448 words.
Words like these -- which confounded me to no end:
SEC. 203. PROHIBITION OF CORPORATE AND LABOR DISBURSEMENTS FOR ELECTIONEERING COMMUNICATIONS.Obviously, you cannot get any idea what the language "any entity described in subsection (a) of this section or by any other person using funds donated by an entity described in subsection (a) of this section" means without tracking down and reading subsection (a) of "this" (now-amended-but-not-present-in-McCain-Feingold-text) "section."
So, another Internet search took me to the original Federal Election Campaign Act of 1971! (A monstrosity which runs a mere 225 pages....)
But note that because section 316(b)(2) of the Federal Election Campaign Act of 1971 is actually 441b(b)(2), magical subsections like "(a)" don't exactly stare you in the face.
QUERY: How are people supposed to follow the law when the law can't be found or read -- and (if found and read) understood without reference to Opinions running nearly 300 pages?
Finally, I found the language:
(a) It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, or for any corporation whatever, or any labor organization, to make a contribution or expenditure in connection with any election at which presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to, Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices, or for any candidate, political committee, or other person knowingly to accept or receive any contribution prohibited by this section, or any officer or any director of any corporation or any national bank or any officer of any labor organization to consent to any contribution or expenditure by the corporation, national bank, or labor organization, as the case may be, prohibited by this section.OK, so that is what (I think) has been amended by McCain-Feingold.
The Act seems to say that a "communication" -- if originating from a corporation -- is now a "contribution." This defies common sense, but I guess I should be glad that my blog is mine, and not published by a corporation.
At least, I certainly hope it isn't. Some courts seem to have held that the ISP is indeed the publisher, and is analogous to a radio station:
An ISP's role in the Internet is similiar to that of a radio station. They have the responsiblity to control how, when, and by whom the information is presented.Most ISPs are corporations, of course.
Now, it may sound ridiculous to maintain that what I publish on my web site might be taken as a communication by my ISP, but don't laugh!
ISPs have been successfully held liable in a variety of contexts as "publishers" of what their customers wrote.
However, the trend seems to be in the other direction.
Meanwhile, I share the concerns expressed by Eugene Volokh and Clarence Thomas.
Nothing new about that!
posted by Eric on 12.10.03 at 04:27 PM
Listed below are links to weblogs that reference Whose blog is this?:
» Crossing the Rubicon... from De Doc's Doings
When people as calm and reasonable as Eugene Volokh see the recent Supreme Court decision as opening the door to government regulation of the press, and erudite, sane folk like Eric Scheie can't even ascertain whether or not blogs might fall under the ... [Read More] Tracked on December 11, 2003 4:58 PM
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