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Wednesday, June 08, 2005

Bopp Submits Comments to FEC on Proposal to Regulate Political Speech on the Internet

One of the unsung heroes of the battle to protect Freedom of Speech in America is lawyer James Bopp. He was the lead attorney in McConnell v FEC, the legal case against McCain-Feingold, and continues to be the guy out front fighting the good fight to the First Amendment.

Bopp's comments on the FEC's proposed rule for regulating political speech on the Internet provides a succinct summary of what is at stake:

"America’s Founders embraced liberty, threw off the British monarchy with its limitations on
free expression, proclaimed the sovereignty of the people, established a Republic with strictly
limited powers, and built a palisade of express rights to protect liberty from the depredations of
government. To be an American meant to be free to express yourself without a second thought
about restrictions. Libel and slander carried legal consequences, of course, but those and like
limited prohibitions had been well understood by all for millennia. The people didn’t need a
specialist in the minutiae of statutes, rules, court opinions, and advisory opinions before they
could speak or print their thoughts. The spirit of the present age is regulation, not liberty, and a distrust of the people and of the ability of truth to come to the fore in a free marketplace of ideas. Regulatory restrictions are disguised as “reform,” allegedly in the name of the common man.
"People must now think twice before speaking. But the common person should not need (and most cannot afford) to retain a legal specialist before speaking. And that is the effect of increasing regulation—a creeping chill on expression and participation in self-government. The Founders understood that liberty is fragile, that it needs room to breath and strong protections, and they gave us the first and best reform, which is the First Amendment’s command that 'Congress shall make no law . . . abridging freedom of speech, or of the press . . . .'"

Citing the U.S. Supreme Court's decision in Austin v Michigan Chamber of Commerce, Bopp notes three qualifications that bloggers must meet in order to be covered by the First Amendment's guarantee of a free press and thus be included in any official media exemption, such as is being considered by the FEC:

"From Austin’s justification, here are the crucial question that must be considered with
respect to Internet bloggers and other online news sources: (1) are their resources devoted to
collecting and disseminating information to the public?; (2) do they inform and educate the
public, offer criticism, and provide forums for discussion and debate?; and (3) do they serve as a
powerful antidote to governmental power abuses and holding officials accountable to the people?
"If so, they should be included in any media exception, even though they already hold the
constitutional rights to free speech and press, which in themselves protect such activity."

Bopp also includes an excellent description of how the British crown stifled free expression and why that led the Founders to include a blanket guarantee of free expression in the U.S. Constitution. For the full text of Bopp's comments, go here.