Sunday, November 20, 2005

FEC: Bloggers qualify for press exemption

In a draft advisory opinion the Federal Election Commission has ruled that a blog, not owned by a political candidate or political party, still qualifies for the so-called press exemption from campaign finance laws.

The commission applied a two-pronged approach to determining whether the blog, Fired Up, qualified for the press exemption.

The first prong is “press entity status,” whether the blog is “both available to the general public and are the online equivalent of a newspaper, magazine, or other periodical publication as described in the Act and Commission regulations.” It found that Fired Up qualified, as it offered both news and editorial commentary.

The second prong is the ownership test, or whether the blog is “owned or controlled by any political party, political committee, or candidate.” Fired Up passed this test as well.

So it’s pretty clear that as long as you are offering news and opinion, and you aren’t owned or controlled by any particular political party, committee, or candidate, that the press exemption applies to you.

This reporter will now have press credentials! Bell Ringer!

Here is the story!
Bell Ringer!

An examination of Fired Up's websites reveals that a primary function of the websites is to provide news and information to readers through Fired Up's commentary on, quotes from, summaries of, and hyperlinks to news articles appearing on other entities' websites and through Fired Up's original reporting. Fired Up retains editorial control over the content displayed on its websites, much as newspaper or magazine editors determine which news stories, commentaries, and editorials appear in their own publications. Roy Temple, acting on behalf of Fired Up, not only produces much of the content but also exercises day-to-day control over which stories are featured. Reader comments appearing on Fired Up's websites are similar to letters to the editor and do not alter the basic function of Fired Up.

According to the House report on the 1974 amendments to the Act, the press exception made plain Congress's intent that the Act would not "limit or burden in any way the first amendment freedoms of the press . . ." and would assure "the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns." . . .

Fired Up is a for-profit LLC and is not owned or controlled by any political party, political committee, or candidate. Given that Fired Up's operation of its websites is at the core of its activities as a press entity, its provision of news stories, commentary, and editorials on its websites falls within Fired Up's legitimate press function. Thus, because Fired Up is a press entity, and neither it nor its websites are owned or controlled by any political party, political committee, or candidate, the costs Fired Up incurs in covering or carrying a news story, commentary, or editorial on its websites are exempt from the definitions of "contribution" and "expenditure." The Commission notes that an entity otherwise eligible for the press exception would not lose its eligibility merely because of a lack of objectivity in a news story, commentary, or editorial, even if the news story, commentary, or editorial expressly advocates the election or defeat of a clearly identified candidate for Federal office. See First General Counsel's Report, MUR 5440 (CBS Broadcasting, Inc.) ("Even seemingly biased stories or commentary by a press entity can fall within the media exemption.")

In addition, as part of its written request, Fired Up! noted that its sites would "endorse, expressly advocate, and urge readers to donate funds to the election of Democratic candidates for federal state, and local office." The FEC did not challenge this aspect of Fired Up's activities.

What This Means: Under the Commission's rules, "any person involved in a specific activity 'indistinguishable in all its material aspects'" from Fired Up! can rely upon this ruling unless Congress acts otherwise, and you can imagine what sites might feel better-protected today. Any such site engaged in news, commentary and editorial can continue in such activities without fear of falling into FEC filing requirements turning groups into political committees or incorporated sites into outlaws. [N.B. has chosen to organize and file as a political committee, and is not directly affected by today's outcome.]

This is a tremendous victory for online free speech and will impact on the current debate in Congress. Kudos to Marc Elias and Brian Svoboda of the Perkins Coie law firm who are responsible, as well as the five FEC Commissioners who understood that neither the First Amendment, the statutes nor common sense could tolerate a different result.

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