(This piece is cross-posted from CalWatchdog.com.) Read it here.
California’s chief political watchdog, Ann Ravel, recently announced plans to regulate political websites that accept payments from campaigns. California bloggers right, left and center quickly criticized the proposal for quashing free speech and putting them at a disadvantage to out-of-state competitors.
“The Internet is global,” wrote Mark Paul on his blog, the California Fix. “The commission’s jurisdiction is limited to California. If campaigns find it useful to make payments to online sock puppets, won’t they funnel the dollars to bloggers living outside the state? Do we want to send jobs out of California?”
Out-of-state competition might not be a problem, say some legal experts, because California’s Fair Political Practices Commission could cross state lines and police out-of-state blogs and websites, including international news aggregators like the Drudge Report, regardless of their location.
And there is adequate case law to back it up.
Pavlovich Precedent: The ‘Effects Test’
UCLA law professor Stephen C. Yeazell argues that Pavlovich vs. Superior Court, a 2002 California Supreme Court case, established an “effects test” for evaluating jurisdictional claims in the Internet age. He believes it could provide a legal justification for the FPPC’s regulation of out-of-state bloggers, if the sites featured ads from California campaigns.
“Under the Pavlovich test, the question is whether or not the speech is aimed at California,” Yeazell said, when asked if California had jurisdiction to regulate an out-of-state website like the Drudge Report. “On the one hand, the website’s speech is aimed at California by advertising California campaigns and posting links about California stories.”
“Internet jurisdiction is a mess,” added Samuel Issacharoff, Professor of Constitutional Law at New York University School of Law, who shared Yeazell’s interpretation of the Pavlovich precedent.
Aggregators, Bloggers and News Sites Affected
National political websites and news aggregators, such as the Drudge Report, the Huffington Post, the Daily Caller and Real Clear Politics commonly feature stories on California while also running advertisements from California candidates, initiatives and campaigns. Matt Drudge, now a Florida resident, founded his website while based in California.
“What kinds of content would trigger the disclosure?” asked Paul, who is also the co-author of the new book, “California Crackup: How Reform Broke the Golden State and How We Can Fix It.”. “Any sort of favorable comment about a campaign or critical comment about a rival campaign? Links to news reports favorable or damaging to a campaign?” They were questions raised by many California bloggers.
An FPPC spokeswoman told CalWatchDog.com that the specific details have yet to be determined. She added that Ravel was currently traveling out of the country and would be available for an interview on Friday.
Jerry Roberts and Phil Trounstine of CalBuzz, who are the only bloggers to interview Ravel on the subject, wrote on Monday, “We’re happy to report, after our conversation, we think she agrees with us that the best way to confront secret payments to websites that propagandize for their retainers lies in stricter, more timely and precise reporting of campaign expenditures.”
Critics of the state’s regulatory agency are less optimistic and warn that the proposal is a first step toward more regulations of political speech.
“This means a lot more than the issue at hand; it means the first of many additional steps to regulate political speech,” said Jonathan Wilcox, a communications consultant and former speechwriter for Gov. Pete Wilson. “Given the troubling political practices just in Sacramento, some will wonder if the FPPC could catch a speeding driver at the Indy 500.”
Chandra Sharma, the publisher of Fox and Hounds Daily, complained about the agency’s bad track record with new technology.
“The FPPC’s attempts to regulate online political speech over the past few years have been badly conceived and ill-informed,” he said. “This is yet another example of the FPPC attempting to regulate a medium it doesn’t understand, and as others have already noted, they haven’t even begun to realize the kind of unintended consequences that would manifest themselves as a result.”
No Protection from the First Amendment
Both Yeazell and Issacharoff, experts on jurisdictional issues, are skeptical that the FPPC would win a dispute with out-of-state bloggers because of complicating factors, such as First Amendment concerns. “I also imagine the courts being hesitant to extend the reach of a state regulatory agency in this case given other factors, including the First Amendment implications,” argued Yeazell. However, First Amendment experts believe that a state regulation of political websites, if properly crafted, could withstand a First Amendment challenge.
“When a blogger is paid to write for a campaign, that’s basically a campaign buying a political advertisement,” said UCLA law professor Eugene Volokh, who publishes the legal blog, The Volokh Conspiracy. “The Supreme Court has held (in McConnell and Citizens United) that the government may require political advertisers to identify the source of the advertisement. Requiring the blogger to identify his speech as an advertisement paid for by a campaign would be much the same as the identification requirements that had been upheld — it would inform the public about who is actually paying for the speech, and do so at the moment the speech is received.”
Michael Houston, a partner at the Newport Beach firm Cummins & White, LLP, shared Volokh’s interpretation and emphasized that there’s little difference between a paid blogger and paid spokesman.
“Frankly, I see little difference between a blogger advocating for a candidate or cause and a paid spokesman,” said Houston, who specializes in political law and regulatory issues. “The only real question is whether the bloggers should have to do so on their own.”
Former FPPC Chairman Dan Schnur expressed concern that new regulations “would discourage people from adding their voices to the political dialogue.”
“Whether it is constitutional or not shouldn’t be the only threshold,” said Schnur, the director of the Jesse M. Unruh Institute of Politics at the University of Southern California. “It may be constitutional but that doesn’t mean it’s a good idea”
(Coming up Friday: Part II: How Bloggers’ Voices Will Be Affected.)