Monday, March 07, 2005

A Scenario for Repression

Hugh Hewitt is remarkably complacent about recent mumblings from the FEC concerning regulation of blogger's links to political websites.

Professor Hewitt instructs us that such regulation is totally illegal, unconstitutional, has never been regarded as otherwise, and would be immensely unpopular.

I would point out that all of that was true regarding the ban on NRA et al. advertising within 90 days of the 2004 election; but a majority of the Supreme Court not only upheld that illegal, unconstitutional, unprecedented, unpopular ban, they declared they rested on their heels with their tongues out waiting for a chance to rubber-stamp further repression of free speech.

Since McConnell v FEC the only surely immune form of political speech is lap dancing with red, white and blue pasties.

Furthermore, such repression would not require the politically risky step of prosecuting the individual blogger. The FEC could take a page from the FCC, which handed down millions in indecency fines over the Superbowl fiasco, not one penny of which was paid by Ms. Jackson.

I admire the fierce defiance of bloggers like Beldar, but practically I doubt he would ever get his moment of truth.

I notice Beldar uses Typepad. I use Blogspot. These are the host services that grant us a forum from which to blog, pursuant to a contract.

What if the FEC ignored the blogger completely and challenged the host service?

If the FEC sent a minatory letter, informing the host that the blogger was under investigation for illegal electioneering, and that if the blog content was found to be illegal the host would be liable to fines, and requesting a formal response from the host, I see three options for the host company:

A: Try to argue that it had no liability for the content of a blog.

B: Defend the blogger's liberty out of its own pocket.

C: Inform the blogger that he was in violation of his Terms of Service and shut down the blog.

If the host chose the third option, the blogger would have no claim against the FEC. The FEC did not declare the blogger guilty of anything, it merely informed a responsible party of an ongoing investigation. It did not demand the blog be shut down. The FEC could not be forced to issue any kind of affirmation of the blogger's innocence to the host; or pressure the host to reinstate the blog, since the Terms of Service is a private contract.

A repression of political blogs in America would be more likely to resemble the Hollywood blacklist--a corporate repression privately adopted to avoid confrontation with lunatics in Congress.


Xrlq said...

I guess the lessson is, don't use Blogspot or Typepad. Seriously, though, I can't see either of these companies taking something like this lying down. To do so would be to make pariahs of themselves among bloghosts. My guess is they'll cooperate with the FEC about as much as most broadband providers cooperate with the RIAA.

annika said...

i blog from California, but the server is actually in Australia. i wonder if that would enable me to get around such a scheme.

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