Feds still gunning for free-speech restrictions online

Democrats on the Federal Communications Commission have become similarly interested in regulating providers of digital content. Yet unlike their colleagues on the FEC, their efforts have not been stymied by statutorily-mandated division.

Washington last year witnessed a glut of proposals from regulatory agencies seeking to restrict digital forms of political speech on YouTube, Facebook and other online venues. Those proposals largely fell short, but conservatives are still worried they may find new life.

"I find it very troubling," former Federal Election Commission member Hans von Spakovsky told the Washington Examiner. "My experience on the FEC left me with the impression that some of the Democratic commissioners were more lenient in granting the statutory media exemption to media they saw as liberal, and much more stringent and unwilling to grant the exemption to media they perceived as conservative."

Spakovsky, who served on the agency in 2006 and 2007, was referencing a rule that exempts news items, commentaries and editorials from FEC regulation. Shortly after he joined the commission, its six commissioners voted unanimously to broaden that rule by applying it to all political content on the Internet as well. It was in the public's best interest because, the commissioners stated, "Unlike other forms of mass communication, the Internet has minimal barriers to entry, including its low cost and widespread accessibility."

However, the rule came under fire in February, when 2015 FEC Chairwoman Ann Ravel held a public forum to discuss the issue of money in politics. "Some of my colleagues seem to believe that the same political message that would require disclosure if run on television should be categorically exempt from the same requirements when placed on the Internet alone. As a matter of policy, this simply does not make sense," Ravel wrote in a statement leading up to the hearing.

The commission must be divided between three Republicans and three Democrats. As a result, Ravel's proposals failed to gain much traction. Complaints that have been filed against organizations for doing things like posting political videos on YouTube have failed, dismissed in 3-3 votes. While regulatory advocates have failed to gain a majority, today's division stands in stark contrast to the unanimity that existed when Spakovsky sat on the agency a decade ago.

"An ambivalence persists among commissioners to this day and many votes on press freedom are split votes," current FEC commissioner Lee Goodman told the Examiner in a recent interview. "Some commissioners want to preserve regulatory discretion over press entities. Bona fide filmmakers, book publishers, websites have all received mixed treatment.

"I cannot sit here today and tell you with any confidence that a majority of commissioners would recognize a news aggregator like the Drudge Report as a bona fide press organization free from FEC regulation," Goodman added.

Democrats on the Federal Communications Commission have become similarly interested in regulating providers of digital content. Yet unlike their colleagues on the FEC, their efforts have not been stymied by statutorily-mandated division.

Just two weeks after the FEC's hearing on Internet regulation in February, the FCC's three Democrats passed the Open Internet Order, which reclassified providers of broadband Internet as traditional utility companies. The order, passed over objections from the commission's two Republicans, rules in part that broadband providers are not entitled to First Amendment protections because they are "conduits, not speakers."

"I think the First Amendment issues in that are very troubling for religious interests," said Harold Furchtgott-Roth, a former FCC commissioner. "There are some services and broadband providers that today will filter out certain websites, and if you do that as a broadband provider, that's illegal under the network neutrality order. That's a form of compelled speech that touches on First Amendment speech issues, but also First Amendment freedom of religious issues."

Because of the sweeping nature of the Open Internet Order, the rules are still in the federal court system. It will be several months before a decision is made, and it is likely the losing party will appeal its case to the Supreme Court.

Critics say that if the rules are upheld, the FCC may eventually use the precedent as justification to extend regulation to "edge providers." Those are entities that provide digital services like YouTube, Apple or outlets that provide political content.

"Because the same theories the FCC relied on to impose its new regulations on Internet service providers are also applicable to companies like Apple and Netflix, the FCC could extend its regulatory reach much further in the future," said Fred Campbell, president of the Center for Boundless Innovation in Technology.

Furchtgott-Roth agreed, saying, "Fred makes the great point that the same legal theory that would allow the FCC to compel speech by broadband providers could be used by the FCC to limit speech of edge providers such as Drudge."

"We are not there — yet," he added. "If the court says the FCC has … deference to interpret the statute to allow network neutrality, it will be tempting for the FCC to use the same legal principles to control content of edge providers."

In 2016, the number of proposals to restrict digital speech is likely to decrease compared to the previous year. The FEC, which has a rotating chairmanship, will have Republican Matthew Petersen at its helm this year, and the FCC has a long judicial process ahead.

Yet critics don't see regulators losing interest in restricting, as Spakovsky calls it, "speech they don't like and don't agree with." However, he said, there is one benefit to the aggression federal regulators have displayed.

"I think enough legislators today on the Republican side finally understand the First Amendment dangers of more campaign finance restrictions, which was not the case a decade ago," Spakovsky said.

( source )

#NetNutrality #internet #internetcensorship #censorship #freespeech

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