Free Speech Still Not Safe

Just in case you thought the First Amendment’s protection of free speech was safe after the U.S. Supreme Court’s decision in Citizens United, don’t get too comfortable in expressing your views just yet.

On May 18, Bradley Smith and Jeff Patch laid out a variety of problems with the DISCLOSE Act being pushed in Congress in a piece for Reason.com titled “From Banning Books to Banning Blogs.”

Smith and Patch note:

Last week, a congressional hearing exposed an effort to give another agency—the Federal Election Commission—unprecedented power to regulate political speech online. At a House Administration Committee hearing last Tuesday, Patton Boggs attorney William McGinley explained that the sloppy statutory language in the “DISCLOSE Act” would extend the FEC’s control over broadcast communications to all “covered communications,” including the blogosphere…

The bill, however, would radically redefine how the FEC regulates political commentary. A section of the DISCLOSE Act would exempt traditional media outlets from coordination regulations, but the exemption does not include bloggers, only “a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine or other periodical publication…”

In Citizens United, the Supreme Court explicitly rejected disparate treatment of media corporations and other corporations (including nonprofit groups) in campaign finance law. “Differential treatment of media corporations and other corporations cannot be squared with the First Amendment,” Supreme Court Justice Anthony Kennedy wrote for the majority.

And consider the following points raised about the DISCLOSE Act by Rep. Dan Lungren, Ranking Republican on the House Administration Office:

• Ban over 56,000 U.S. companies with government contracts from engaging in political speech

• Ban PACs funded and controlled by American citizens if 20% or more of their company is foreign owned

• Limit speech on certain political blogs and other internet communications by subjecting them to new “coordinated communication” restrictions

• Require 30-second ads to include 13- to 26-second disclaimers

• Ban speech by business corporations with government contracts but not speech by prominent labor unions in collective bargaining agreements with the government

• Ban speech by business corporations with partial foreign ownership but not speech by influential labor unions with foreign control or non-citizen members

• Force organizations to file certifications under penalty of perjury before engaging in political speech or making any type of donation, even charitable

• Require non-profit advocacy organizations to cover the high costs of complying with new cumbersome requirements for tracking and reporting donations

• Enact a vague law without waiting for the FEC to issue instructions and rules so people can follow the law and avoid criminal and civil punishment

Raymond J. Keating
Chief Economist
Small Business & Entrepreneurship Council