Blogs, YouTube prompt campaign finance ruling

5-4 opinion includes what appears to be the Supreme Court's first mention of "blog," and points to YouTube and social networking sites for why law's unconstitutional.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
5 min read

The U.S. Supreme Court's sweeping ruling on Thursday that invalidated large chunks of campaign finance law arose in part from an unlikely source: the emergence of Facebook, YouTube, and blogs, and the decline of traditional media outlets.

A 5-4 majority concluded that technological changes have chipped away at the justification for a law that allows individuals to create a blog with opinions about a political candidate--but threatens the ACLU, the National Rifle Association, a labor union, or a corporation with felony charges if they do the same.

The now-invalidated law "would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds," Justice Anthony Kennedy wrote in the majority opinion (PDF). "The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech."

Eugene Volokh, a law professor at UCLA, called it the "first appearance" of the word "blog" in a Supreme Court opinion. And Google's video-sharing site is singled out in the conclusion, with Kennedy writing that "skits on YouTube.com" that cast politicians in an unflattering light could give rise to "felony" charges if a corporation dared to post them.

Kennedy added: "Rapid changes in technology--and the creative dynamic inherent in the concept of free expression--counsel against upholding a law that restricts political speech in certain media or by certain speakers. Today, 30-second television ads may be the most effective way to convey a political message. Soon, however, it may be that Internet sources, such as blogs and social-networking Web sites, will provide citizens with significant information about political candidates and issues."

Federal law generally prohibits for-profit and nonprofit corporations and unions from paying to advocate the election of or defeat of a political candidate. The 2002 McCain-Feingold law expanded that prohibition to include so-called electioneering communications, defined as any "broadcast, cable, or satellite communication" that even "refers to" a candidate for federal office and is made within 30 days of a primary or 60 days of a general election.

Thursday's ruling invalidates many of those requirements, meaning that nonprofit and for-profit corporations and labor unions will be able to spend money on political films, advertisements, YouTube videos, and so on. But the decision comes with two important caveats: first, none of that money will be permitted to go directly to political candidates. Second, an 8-1 majority of the court upheld a disclosure requirement applying to those groups spending money on the political ads or other materials.

The court pointed out that the now-invalidated laws are more sweeping than the term "campaign finance" might imply--and amount to simple censorship. It listed these acts of political speech that previously would have been criminalized: the Sierra Club running an ad (close to the time of an election) disapproving of a congressman who favors logging in national forests; the NRA publishing a book urging a vote against an incumbent U.S. senator who supports a handgun ban; and the American Civil Liberties Union creating a Web site telling the public to vote for a presidential candidate because of that candidate's defense of free speech.

The front of the U.S. Supreme Court Supremecourtus.gov

The case in front of the Supreme Court arose when Citizens United, a conservative nonprofit group, sought a legal opinion recognizing their right to air a documentary film sharply critical of then-presidential candidate Hillary Clinton. Citizens United worried that the film and ads for the film, to be shown on a video-on-demand service before the 2008 Democratic primaries, would subject them to civil and criminal penalties.

Election law's double standard?

The New York Times endorses political candidates (in 2008, it endorsed Barack Obama). So does the New York Post (it chose John McCain).

Those endorsements on the eve of a presidential election were permitted under U.S. election laws--even though both newspapers are owned by corporations with market capitalizations in the billions of dollars. But the tiny nonprofit called Citizens United, funded mostly by individual donations, was barred from sharing its own political views.

Joel Gora, a professor at Brooklyn Law School and ACLU lawyer who argued a landmark 1976 Supreme Court case, wrote at The New York Times' Web site today that the justices "dismantled the First Amendment 'caste system' in election speech. Before today, the right to speak depended on who was doing the speaking: business corporations, no, unless they were media corporations; nonprofit corporations, maybe, depending on where they got their funding; labor unions, no."

This legal equivalent of a caste system was assembled by legislators and judges during an era when the only national television broadcasters were the major networks, when only Hollywood produced documentaries, and when only large publishers owned printing presses.

"The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech."
--Supreme Court Justice Anthony Kennedy

Deciding who was a media company must have been easier then, and in fact a 1986 Supreme Court case yielded the verdict that a pro-life advocacy group's newspaper did not qualify for the press exemption.

But then blogs, digital cameras, and social-networking sites arrived. When anyone with an iPhone can edit and upload a video to YouTube within seconds, who qualifies as media? Does a daily radio show hosted by the NRA? How about a Web site run by Microsoft that includes essays from political types including an Obama campaign advisor on energy and environmental issues who was also a surrogate for Obama at public events and a member of Obama's transition team?

That's what led Justice Kennedy, writing for the majority, to say: "With the advent of the Internet and the decline of print and broadcast media...the line between the media and others who wish to comment on political and social issues becomes far more blurred."

The dissenting justices, on the other hand, downplayed the effect of the McCain-Feingold and other laws on the Internet. Justice John Paul Stevens (who may be retiring this year) wrote that the law "does not apply to printed material" so it's unreasonable to worry about a ban on "books, pamphlets, and blogs."

Stevens also wrote: "We highly doubt that (the law) could be interpreted to apply to a Web site or book that happens to be transmitted at some stage over airwaves or cable lines, or that the (Federal Election Commission) would ever try to do so." (In 2006, amidst warnings that this was the beginning of a new regulatory structure, the FEC adopted a generally liberal view of Internet politicking.)

While Thursday's ruling left supporters of stricter regulation of political speech outraged, their next steps are not obvious. President Obama said his administration will "talk with bipartisan congressional leaders to develop a forceful response to this decision," although any revised legislation could be struck down by the Supreme Court again. In a conference call with reporters, the Public Citizen and U.S. PIRG advocacy groups said they had started a petition drive and would even seek to amend the U.S. Constitution--marking the first time that the First Amendment would be explicitly altered.