Elections and Politics

Presidential Candidates Fight Online Defamation

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Last week some reporters, politicos, and bloggers may have mourned the end of the endless presidential primary season. But it's not like political mudslinging is now going to end. Indeed, in ancticipation of the focus on the general election battle, in the muddy backwaters of the Internet – in forums, blog comments, email chain letters and listservs – defamatory statements are being bandied about in hopes that some of the reputation damaging misinformation will enter the zeitgeist of the electorate to sway public opinion about the candidates one way or another.

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Federal Election Commission Hands Daily Kos a Victory

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Following up on our previous posting about blog campaign advocacy, the Federal Election Commission announced yesterday that it has rejected conservative blogger John Bambenek's complaint alleging that the liberal website Daily Kos operates as a "political committee." The Commission's news release suggests that it will not treat online media sources differently from traditional media sources, and that it will not lightly find that a blog's "major purpose" is to influence elections:

In Matter Under Review (MUR) 5928, the Commission determined that Kos Media, L.L.C., which operates the website DailyKos, did not violate the Federal Election Campaign Act. The Commission rejected allegations that the site should be regulated as a political committee because it charges a fee to place advertising on its website and it provides “a gift of free advertising and candidate media services” by posting blog entries that support candidates. The Commission determined that the website falls squarely within the media exemption and is therefore not subject to federal regulation under the Act. . . . Since 1974, media activity has been explicitly exempted from federal campaign finance regulation. In March 2006, the Commission made clear that this exemption extends to online media publications and that "costs incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station . . . , Web site, newspaper, magazine, or other periodical publication, including any Internet or electronic publication,” are not a contribution or expenditure unless the facility is owned by a political party, committee, or candidate. With respect to MUR 5928, the FEC found that Kos Media meets the definition of a media entity and that the activity described in the complaint falls within the media exemption. Thus, activity on the DailyKos website does not constitute a contribution or expenditure that would trigger political committee status. The Commission therefore found no reason to believe Kos Media, DailyKos.com, or Markos Moulitsas Zuniga violated federal campaign finance law.

This decision provides some reassurance that bloggers do not run afoul of federal election laws simply by strongly and consistently advocating a particular political viewpoint.

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Regulating Blog Campaign Advocacy

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Allison Hayward, an assistant professor of law at George Mason University, has a new article coming out entitled Regulation of Blog Campaign Advocacy on the Internet: Comparing U.S., German, and EU Approaches. (Credit to Todd Zywicki at the Volokh Conspiracy for the tip.) Hayward writes in her abstract:

In brief, U.S. law protects blogging content, but may impose restrictions on the source of political commentary by barring certain funding sources. German law imposes stricter limits on the content of blogging, but does not regulate financial sources to the same degree. European court rulings may offer greater protection than domestic German law, but seem inconsistent and thus add uncertainty and ambiguity to the situation. In the end, bloggers may avoid legal entanglement because they enjoy public sympathy and support, but better still would be an international agreement to spare blogging from prosecution.

This is a subject we are working on for the CMLP Legal Guide, so I eagerly printed her excellent article (yes, I prefer to read things in hard copy). I'll touch on a few of the more important issues in this post.

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