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Thursday, December 09, 2004

CBS' Blog Bash is a Threat to the Free Press

Probably nobody is surprised that some precincts of the MSM are or soon will strike back at the Blogosphere. That CBS is the first out of the blocks is surprising because one might think they learned first hand in Rathergate the risks of using the news process as a weapon against a perceived opponent. Captain's Quarters has a superb analysis of the particulars of the CBS effort, which you can read here.

I have no doubt the Blogosphere will respond effectively to the CBS attack. What concerns me more about it, though, is what it says about the deleterious implications of the CBS story visavis freedom of speech, thanks to the McCain-Feingold Bipartisan Campaign Finance Reform Act of 2002 and the U.S. Supreme Court's upholding of that law late last year.

What's the connection? Justice Clarence Thomas eloquently described it in his dissenting opinion (which is highly recommended to Senate Minority Leader Harry Reid!): "The chilling endpoint of the Court's reasoning is not difficult to see: outright regulation of the press." The reasoning Thomas is referring to is the Court's majority holding that Congress can regulate speech if it is defined as political speech, the First Amendment's injunction that Congress "make no law regarding freedom of speech" notwithstanding. You can read my columns critiquing that opinion here and here.

Now, what has that to do with CBS' attack on the Blogosphere? The CBS report hinges on its discovery that two prominent South Dakota bloggers were paid by Jon Thune, the former Republican congressman who unseated former Senate Minority Leader Tom Daschle. Both bloggers were enthusiastic and effective advocates for Thune, but neither noted their financial arrangement with Thune during the campaign.

Here's the key lines in the CBS report:
"At minimum, the role of blogs in the Daschle-Thune race is a telling harbinger for 2006 and 2008. Some blogs could become new vehicles for the old political dirty tricks. Like all media, blogs hold the potential for abuse. Experts point out that blogs' unregulated status makes them particularly attractive outlets for political attack."

Campaign finance reform supporters would argue that those Thune payments to the bloggers made them campaign agents, thus their postings amounted to campaign contributions, which are subject to FEC regulation. CBS doesn't say that, but the experts it quotes don't make the obvious point in rebuttal - blogs aren't alone in being unregulated communications vehicles i.e. conveyors of news and opinion. So is, just to take one example at random, CBS.

Nor do those experts say anything at all about what happens after bloggers are defined as suitable subjects of regulation for campaign speech. If communications vehicles like blogs are subject to such regulation, why shouldn't vehicles like The New York Times or CBS? Since the object of McCain-Feingold is to minimize the impact of political speech by those with "too much" money, the speech is the problem, not the money. Thus, the logic leads inevitably to regulation of all political speech, including that which is published by the MSM.

Just like Justice Thomas predicted.