Thursday, September 22, 2011
About ten years ago the FEC put out a call for comments on internet rulemaking.
A then-record (now elipsed) 1000 people responded saying "Hands off the Internet!"
The FEC backed down and avoided heavily regulating, but now and then when they think we aren't looking they try to sneak something past us. It is that time again.
http://fec.gov/agenda/2011/mtgdoc_1158.pdf is a call for comments on the FEC maybe revising its disclaimer policies for websites and ads, again. Google and Facebook had asked for exemptions, pointing out that a short text link doesn't leave room for a disclaimer.
That, I think, is the context for this possible new rulemaking.
In Talley, McIntyre, ACLF, and Watchtower, the Supreme Court has stressed that disclaimer regulations are unconstitutional, and anonymous speech is protected.
The general First Amendment principle, from Tornillo v Miami Herald, Wooley v Maynard, etc., is that people rather than the government decide what they will say.
The FEC has been violating this civil right throughout its existence, and ignoring my submitted comments on the issue. I first submitted comments during the AO1998-22 Leo Smith controversy,and then was one of the 1000 commenters mentioned above,and have recently written then again a few months ago.
Citizens United threw a monkey-wrench into our understanding of when anonymous speech is protected. 8-1, the Court upheld disclaimers and disclosure for speech by corporations, speech which had previously been banned altogether. But they did not explain whether their decision was limited to corporate speech,or whether they were overruling Talley and McIntyre, or what. Three lower courts have split on what the effect of CU is. At some point this may go back up to the Supreme Court for clarification. Meanwhile rogue agencies like the FEC have some cover, and can claim qualified immunity when they act in actual bad faith. It remains an ethical violation,for those commissioners and staff who are lawyers, creating at least the appearance of impropriety. Whether the DC bar would take such a complaint seriously has yet to be tested.
What I hope to do with this post is call the internet's attention to the opportunity to comment to the FEC for their proposed rulemaking. I hope that a few of the people who ten years ago said "hands off the internet" will let the FEC know we are still here.
Comments may be submitted
20
electronically via the Commission's website at
21
http://www.fec.gov/fosers
Paper comments must be sent to the Federal Election
2
Commission, Attn.: Amy L. Rothstein, Assistant General Counsel,
3
999 E Street, NW., Washington, DC 20463.
All comments must
4
include the full name and postal service address of a commenter,
and of each commenter if filed jointly, or they will not be
6
considered.
The Federal Election Commission requests comments on whether
8
to begin a rulemaking to revise its regulations at 11 CFR 110.11
9
concerning disclaimers on certain Internet communications and, if
10
so, what changes should be made to those rules.
A then-record (now elipsed) 1000 people responded saying "Hands off the Internet!"
The FEC backed down and avoided heavily regulating, but now and then when they think we aren't looking they try to sneak something past us. It is that time again.
http://fec.gov/agenda/2011/mtgdoc_1158.pdf is a call for comments on the FEC maybe revising its disclaimer policies for websites and ads, again. Google and Facebook had asked for exemptions, pointing out that a short text link doesn't leave room for a disclaimer.
That, I think, is the context for this possible new rulemaking.
In Talley, McIntyre, ACLF, and Watchtower, the Supreme Court has stressed that disclaimer regulations are unconstitutional, and anonymous speech is protected.
The general First Amendment principle, from Tornillo v Miami Herald, Wooley v Maynard, etc., is that people rather than the government decide what they will say.
The FEC has been violating this civil right throughout its existence, and ignoring my submitted comments on the issue. I first submitted comments during the AO1998-22 Leo Smith controversy,and then was one of the 1000 commenters mentioned above,and have recently written then again a few months ago.
Citizens United threw a monkey-wrench into our understanding of when anonymous speech is protected. 8-1, the Court upheld disclaimers and disclosure for speech by corporations, speech which had previously been banned altogether. But they did not explain whether their decision was limited to corporate speech,or whether they were overruling Talley and McIntyre, or what. Three lower courts have split on what the effect of CU is. At some point this may go back up to the Supreme Court for clarification. Meanwhile rogue agencies like the FEC have some cover, and can claim qualified immunity when they act in actual bad faith. It remains an ethical violation,for those commissioners and staff who are lawyers, creating at least the appearance of impropriety. Whether the DC bar would take such a complaint seriously has yet to be tested.
What I hope to do with this post is call the internet's attention to the opportunity to comment to the FEC for their proposed rulemaking. I hope that a few of the people who ten years ago said "hands off the internet" will let the FEC know we are still here.
Comments may be submitted
20
electronically via the Commission's website at
21
http://www.fec.gov/fosers
Paper comments must be sent to the Federal Election
2
Commission, Attn.: Amy L. Rothstein, Assistant General Counsel,
3
999 E Street, NW., Washington, DC 20463.
All comments must
4
include the full name and postal service address of a commenter,
and of each commenter if filed jointly, or they will not be
6
considered.
The Federal Election Commission requests comments on whether
8
to begin a rulemaking to revise its regulations at 11 CFR 110.11
9
concerning disclaimers on certain Internet communications and, if
10
so, what changes should be made to those rules.
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