Online Freedom of Speech Act and Drawing Lines

Garance Franke-Ruta does an excellent job of answering Markos Moulitsas Zuniga‘s frequent query as to why “Daily Kos should be treated differently the or” Franke-Ruta notes that, “The simplest explanation is that Slate and TNR do not do fundraising for the Democratic Party and/or specific Democratic candidates. Because DailyKos as an institution does fundraising and lobbying/activism around specific bills and races, it sometimes seems closer in nature to a political advocacy group than to a media outlet.”

She observes that traditional journalistic enterprises often endorse candidates, take positions on issues, and even occasionally lobby Congress on industry issues but they do not do candidate fundraising or non-media issue lobbying. Further hybrid media-political organizations tend to create separate legal entities which operate under the laws applying to each. Kos’ closest counterpart, RedState, is a registered 527 group and accepts no advertiseing.

All well and good but, as Duncan “Atrios” Black argues, the lines are not exactly bright.

Ultimately, it seems to me, the question is not how to clarify the lines between bloggers, Big Media, PACs, 527s, lobbyists, and the myriad other ways that people with viewpoints interface with their government. As we have learned time and again since 1974, the desire to influence public policy is strong enough to attract people smart enough to figure out loopholes. The real issue, then, is why keep trying? So what if DailyKos or RedState–or the NRA, NAACP, NOW, NARAL, AFLCIO, or whoever–want to raise money for candidates or advocate issues before Congress? Given that they are all aggregations of citizens, doing so is their inalienable right, endowed, depending on one’s belief system, by either the Creator or James Madison.

There are really only two legitimate regulatory issues here: Corruption and taxation.

While people and organizations (which are, ultimately, just people writ large) should have an absolute right to contribute money to causes, there is an obvious public policy interest in preventing quid pro quo transactions. But disclosure laws and tighter ethics rules would solve most of that problem, which is much more theoretical than real.

Similarly, it is reasonable to expect groups getting the benefits of tax exempt status to refrain from certain kinds of political activities as a price for that status. But, again, very narrowly targetted laws could solve that problem.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. floyd says:

    james; you have great clarity. that’s rare in a man with so much education. keep your voice of sanity, thanks

  2. Had DailyKos been an opponent of the BCFRA and other ‘campaign finance’ laws, I might agree with his complaints that his rights are being infringed.

    However, he’s been a big supporter of such laws. He apparently only upset when the laws he wants to impose on others are applied to him.

  3. floyd says:

    james madison is dead. rights cannot be given by men or government; only violated or respected. don’t confuse rights and priviledges.

  4. floyd says:

    BTW; even atheists have God given doesn’t matter whether you think they are from principal or principle.

  5. James Joyner says:

    Floyd: While Jefferson asserted these Creator-endowed rights in 1776, they were largely theoretical until men fought and died for them. They didn’t exist because of supernatural edict.

    Madison is credited with writing the 1st Amendment, which is the legal basis for that right in the United States.

  6. floyd says:

    james; rights existed before jefferson, just as gravity existed before newton. jefferson knew he was stating the obvious. men must be confident that rights come from a source higher than men or they won’t have the courage to stand against superior force to protect them.otherwise they are not rights, but only priviledges to be doled out at the whim of stronger men or governments.we fight and die to resist the violation of God given rights,or to restore them, not to establish them . rights are eternal, priviledge fleeting.

  7. And here I thought that the Daily Kos shouldn’t be taken seriously because he and his friends are little more than foul-mouthed, hyper-partisan hacks with no respect for their opponents, election results, or the democratic process unless, of course, they win. Then again, they are still 0-for-whatever last time I checked.