TCS Daily

First Amendment, Cap in Hand

By Ryan H. Sager - November 22, 2005 12:00 AM

"The well-government and regulating of Printers and Printing Presses is matter of Publique care and of great concernment especially considering that by the general licentiousnes of the late times many evil disposed persons have been encouraged to print and sell heretical schismatical blasphemous seditious and treasonable Bookes Pamphlets and Papers  ...  For prevention whereof no surer meanes can be advised then by reducing and limiting the number of Printing Presses."

--An Act for Preventing the Frequent Abuses in Printing Seditious Treasonable and Unlicensed Books and Pamphlets and for Regulating Printing and Printing Presses, 1662 

The last few weeks have seen some ostensible victories for the First Amendment against the evils of campaign-finance regulation. Celebrants should take a step back. As our country moves further and further toward government licensing of the press, the fact that the authorities are currently being generous with the licenses isn't exactly reason to shout.  

First, take the case of Fired Up!, a left-leaning network of blogs that has just gotten some "good news" from the Federal Election Commission. Last Thursday, the FEC unanimously approved an advisory opinion, answering Fired Up's questions as to the legal status of its Web sites under the 2002 McCain-Feingold law. In that opinion, the FEC declared that even an overtly partisan Web site, which has made clear that it will be endorsing Democratic candidates and maybe even raising money for them (and which has as its primary author the former executive director of the Missouri Democratic Party), qualifies for the same "press exemption" as The New York Times.  

What this means is that a wide range of political blogs -- which had feared that their partisan commentary and political organizing on the Web might one day come to be classified as prohibited campaign contributions -- can rest easy.  

"This is a tremendous victory for online free speech," one poster at the popular, liberal Daily Kos declared.  

"This is HUGE news, and a big win for blogs," Mike Krempasky, founder of popular, conservative, wrote.  

Well, for the time being.  

The Fired Up! opinion may well be a victory in the short term. People running political blogs won't have to fear a knock in the night for at least a little while, now. But in the long term, the opinion is meaningless -- if not a setback to those who seek full repeal (congressional or judicial) of the nation's campaign-finance laws.  

In short, the more the proponents of such laws can show them being applied "reasonably" and with "appropriate" exceptions, the longer the concept will stand that the government has the authority to adopt and enforce such laws in the first place. When a federal agency is handing out certificates saying who or what does or does not count as a part of the "press," America has nothing better than a system for licensing the press.  

It was the monarch's standby, and now free-speech advocates are rejoicing that the monarch's modern-day equivalents, the FEC, are being magnanimous with their dictatorial powers.  

The current members of the FEC may be well-disposed toward free speech on the Internet -- though some of them are undoubtedly just withering before the intense public spotlight that has been shown on the topic of Web regulation recently -- but there is nothing to say that future members will share such a disposition. And there's nothing to say that such a spotlight will always be present.  

It would be better if a bill were to pass Congress exempting the Internet communications from campaign-finance regulations altogether. Such a bill was offered by Rep. Jeb Hensarling (R-Texas), but failed to pass under special rules earlier this month; the impetus for taking up the bill again any time soon just got a little bit weaker.  

Yet, still, even a bill exempting the Internet from McCain-Feingold would leave... well, every other form of media exposed.  

Take, for instance, the case of two Washington state talk-radio hosts, Kirby Wilbur and John Carlson, of KVI-AM in Seattle. Earlier this year, a judge ruled that their on-air advocacy of an anti-gas-tax ballot initiative constituted an in-kind contribution to the initiative campaign. The initiative lost on November 8, but the court case drags on, as the Institute for Justice attempts to get the radio hosts' commentaries exempted from campaign-finance regulations.  

Again, as with the case of Fired Up!, an "exemption" from an unjust rule would hardly be a victory for free speech. The only victory will be when journalists and other citizens no longer have to beg the government for the rights they retained in the First Amendment.  

Ryan Sager, a member of the editorial board of The New York Post, is writing a book about the future of the Republican Party. He also edits the blog Miscellaneous Objections and can be reached at

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