Ann Ravel, chair of the California Fair Political Practices Commission, recently announced that she wants to require bloggers to disclose whether they have received payments from political campaigns. The proposal to affix a scarlet letter on a class of political speakers raises a number of questions.
The Internet is global. 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?
Who is a blogger? Is it anyone who puts content online, including employees of corporate media outlets? Is columnist Dan Walters, who writes on the Sacramento Bee’s blog in addition to the newspaper, a blogger subject to disclosure? Or is it just independent writers like me when we post online? Would the disclosure rule apply to posts on Twitter? To videos posted on YouTube or Vimeo? Would someone on the payroll of a campaign have to disclose that relationship on her Facebook page before she could “like” a candidate?
Much online political speech is anonymous, part of a great American tradition that most famously includes The Federalist, signed by “Publius” but written by Madison, Hamilton, and Jay. The U.S. Supreme Court has ruled that anonymous campaign speech enjoys broad protection under the First Amendment. “[A]n author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment,” the court wrote in McIntyre v. Ohio Elections Commission. California’s own courts, citing the state constitution’s broader protections of free speech, voided a state law prohibiting anonymous campaign speech. To enforce a payment disclosure rule against bloggers, wouldn’t the state of California have to attempt to pierce the anonymity of any unsigned online commentary to determine if the speaker’s identity matched any person who has received payments from any campaign? Would online service providers violate the privacy of their customers to cooperate with the state’s efforts to pierce anonymity? And if the state is, as a practical or legal matter, unable to enforce its disclosure rule against anonymous political speech, wouldn’t campaigns that wished to use blogger payments to spread their messages concentrate their dollars on anonymous blogs, thereby defeating the rule and leading to less responsible and accountable campaign speech?
What kinds of content would trigger the disclosure? 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? Or only flat-out statements saying “Vote for candidate or Measure X?” Would the Indian-American campaign worker who recorded and posted the explosive video of 2006 Virginia Senate candidate George Allen calling him “macaca” have had to disclose his connection to the rival candidate? That worker was an unpaid volunteer. Would that have exempted him from disclosure? What rational basis is there for distinguishing between a paid and unpaid campaign worker?
Ravel says the disclosure requirement would apply to direct money payments, not payments received for market-rate advertising. But what is market rate? A campaign may be rationally willing to pay higher rates on a well-respected political website than another advertiser selling widgets might. Is the FPPC going to become not just the nanny of online political speech, but the arbiter of ad rates?
And why aren’t market rate ads a concern? The most important thing in advertising is not price but getting the sale. As Joe Mathews reveals, the Meg Whitman campaign offered to place ads on his blog in 2010 after he wrote a critical post. He regarded the offer as a “clumsy bribe,” and that was, no doubt, Whitman’s intent. If both a journalist and a campaign regard the placement of a market-rate ad as a potential influence on speech, why should Ravel ignore that evidence? It is a universal truth that advertisers influence the content of media businesses dependent on advertising revenue. Anybody who’s ever worked for a media business will tell you that news organizations do not dig as deeply into their advertisers’ affairs as they do for non-advertisers. How many newspaper editorials have you read questioning the state laws that inhibit competition in auto and real estate sales? If advertising revenue can affect the content of speech as readily as direct payments, is Ravel’s proposed loophole for market-rate ads her way to keep media companies from loosing their First Amendment lawyers on her proposal?
How would California justify a rule requiring bloggers, but not other political speakers, to disclose their financial entanglement with a campaign? It is not unusual for a politician to agree to throw his support to a candidate for governor because he has received a promise of some value for that endorsement, whether the promise is a position in the administration or the candidate’s support for a project, candidacy, or issue close to the endorser’s heart. What rational justification is there for requiring a lonely blogger to disclose a $50 payment while exempting the politician who offers his endorsement, online or elsewhere, in return for a quid pro quo worth far more?
Ravel’s proposed rule is a variety of compelled speech in campaigns. Such compelled speech raises major First Amendment issues. “There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees “freedom of speech,” a term necessarily comprising the decision of both what to say and what not to say,” the U.S. Supreme Court wrote in Riley v. National Federation of the Blind of North Carolina, Inc., a case in which it struck down a law requiring professional charitable fundraisers to disclose how much they skimmed off charitable donations for their own operations. State restrictions on campaign speech are permissible only if they are “narrowly tailored to serve an overriding state interest,” the court has ruled. What “overriding state interest” justifies compelling some speakers in election campaigns to wear a scarlet letter?
Ravel says that the rule is needed “in order for people to really know whether they can have faith and trust in the independence of recommendations they are receiving” from online sources. But her rule cannot possibly accomplish that.
Where exactly does she find campaign recommendations in which voters can “have faith and trust?” For every campaign-paid sock puppet who posts online, there are multitudes of persons providing online content supporting or opposing candidates or measures who do so out of ideology or perceived economic interest. What evidence is there that the postings of the wingnuts and moonbats are more worthy of “faith and trust” than those of the sock puppets? I doubt that anybody who has spent any time with the Internet believes any such evidence exists. On what basis, then, can the state stigmatize some political speakers with a scarlet letter that says, in effect, don’t trust this person? Nothing in the Constitution or law says that people who venture online have a right to encounter only politic virgins there.
At the heart of the First Amendment is the idea that the truth arises out of a clash of argument and evidence and that the test of the validity of speech is its quality, not the identity or interests of the speaker. The core principle of free speech is that the state may not dictate the content of speech nor stigmatize particular speakers. Ravel’s proposal is a measure of how much so-called “good government” reformers hate democratic politics and the robust and rambunctious exercise of liberty.