Monday, November 24, 2008

Censorship through red tape

Politicians have always been annoyed by folks who bug them to do or not do things. Somehow, they've successfully subjected such people to strict rules, never mind that the act of lobbying is nothing more than exercising First Amendment rights to "freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." And these days, few people annoy politicians more than bloggers -- which could be why online pamphleteers in Washington state may soon find themselves wading through a web of lobbying regulations.

Lobbying is regulated in the Evergreen State by the Public Disclosure Commission. The PDC defines who is subject to the state's strict rules on political activism and attempts to influence public policy. As the Seattle Times boils it down:

Under the law, lobbyists must register with the state, and submit regular reports about who pays them, how they spend money, and which issues they're working on.

Groups that don't fit the traditional definition of "lobbyist" also have to file reports, provided they meet certain spending thresholds while leading public campaigns intended to influence public policy.

There's a fair amount of paperwork and hassle involved, and not a little bit of expense -- especially if you screw up. The PDC can impose thousands of dollars in penalties. That's a challenge for organizations and businesses that have to divert resources to ensure that they're in compliance with the rules. But it could be a deal-killer for bloggers whose resources consist of little more than passion and a little free time. Unable to afford legal advice or fines, many of them might have to pull in their horns to steer well clear of activities which could potentially incur big costs and penalties.

Which may be the whole point.

This isn't the first time that government officials have turned their potentially muzzling attention on online publishers and activists. Just two years ago, Congress considered legislation that could have required some bloggers to register as lobbyists under threat of up to ten years of prison time. The measure would have applied to anybody who spent or received $25,000 over three months as part of their political efforts. Critics pointed out that a blogger raising money for newspaper or radio advertising would have been swept up in the requirements. The grassroots Ron Paul blimp effort might well have brought down the wrath of the regulators, as could any other online political fundraising campaign.

The Senate ultimately stripped the legislation of language that would apply to bloggers, though it's clear that online activists are now on the political class's radar.

Washington's PDC has been asked to rule whether political activism on the Internet is subject to regulation. The commission has touched on the issue (PDF) in the past, ruling that "payment is key." The commission also allows that "blogs may also be entitled to the 'media exemption'" -- a series of provisions that acknowledge that efforts to regulate what lawyer-heavy newspapers say about government isn't going to fly.

What's largely at issue now is whether the blend of activism and journalism in which so many bloggers engage is going to land them on the regulated lobbyist or unregulated media side of the divide -- and subsequently, whether they'll be able to carry on the freewheeling online activity that has made the Internet such an exciting place for political expression.

The media exemption has always been arbitrary, of course. The idea that journalists are supposed to be disinterested and objective observers is a relatively new conceit -- and one that few people buy, if the polarized audiences for MSNBC and Fox News are any evidence. Early newspapers were often associated with one political faction or another and happily bared their teeth at the opposition. So when modern bloggers cover issues even as they rally the troops for or against candidates and policies, they're doing nothing that journalists weren't doing back when the country was founded.

The low barrier to entry and minimal costs of getting a message out provided by the Internet probably raise politicians' concerns, but that's their problem. The Internet is just a medium, and taking advantage of easy online communications shouldn't mean that you surrender your free speech rights. Plenty of respected news outlets now focus their efforts on the Internet, including the Christian Science Monitor, which has dropped its print edition.

"Payment is key" is clearly no answer. Newspapers are usually paid a lot more than the average blogger for their advertising space, and their column inches for or against a ballot issue or candidate can have every bit as much (or as little) impact as the publicity campaign funded with contributions raised through a Website. It's difficult to understand why a blogger should have to struggle through reporting and disclosure requirements for actively campaigning against a measure when a newspaper gets free rein to campaign for it.

In fact, the more you look at it, the more the idea that some people whould have to jump through regulatory hoops to voice their opinions while others get a pass to say what they please without fear of red tape looks ridiculous.

By making it remarkably easy for people to publish, organize, raise funds and make a fuss, the Internet is blending journalism, activism and organization in a way that probably suits people better than the rigid definitions of recent years. It's making lobbying less of a profession and more of an activity available to anyone. And by doing so, it's showing up lobbying regulations as threats to fundamental rights.

Some fans of lobbying rules fret that if bloggers and other online activists win a free speech victory against the regulators, other lobbyists might just close up their physical offices and move their efforts to the Internet.

Well ... so what if they did?

Maybe its time to recognize that assembling and petitioning politicians aren't just unfortunate practices that we have to tolerate, but fundamental rights. Bloggers deserve to rescued from restrictive rules that would muzzle their political expression, but so does everybody else.



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