How the Obama administration tried to use bureaucrats to crack down on free speech

During the May 18 meeting of the Federal Communications Commission, several protestors outside the building held signs encouraging the government to ban the Drudge Report and Breitbart.

Some of the protest organizers were upset with the signs encouraging the blocking of these conservative news organizations. Regardless of whether the anti-free speech protesters were affiliated with those supporting the government take-over of the internet, the protestors highlight efforts under the Obama administration to curtail online political speech.

Efforts to curtail online political speech were not limited to one federal commission or agency. Rules proposed by The FCC, Federal Election Commission, and considered by the Securities Exchange Commission (SEC) all threatened online political speech. In the Open Internet Order of 2015, the FCC proposed something called the “general conduct standard” or the “Internet conduct standard.” The former chair of the FEC repeatedly called for federal regulation of online political speech and nearly persuaded the FEC to sanction Fox News for merely sponsoring a primary presidential debate. The SEC considered, but ultimately rejected, proposals that would have required companies to disclose political spending in greater detail than they already do.

{mosads}While the OIO and Chairman Ajit Pai’s attempts to roll back the Title II classification of Internet may be controversial, one aspect of the OIO has received criticism from the left and right: the so-called general conduct standard. Unlike the rest of the OIO, which arguably regulated an Internet service provider’s existing conduct, the general conduct standard provided the FCC the ability to punish future conduct with which it disagrees in ways it would determine later. The FCC identified seven “non-exhaustive” factors it would consider when determining whether to punish this future conduct. One of those factors is the impact the conduct had on free speech or free expression.

This means, for example, three unelected bureaucrats at the FCC could determine Fox News or the Drudge Report negatively impact free speech by not devoting enough coverage to Democratic causes. Similarly, three unelected bureaucrats could determine the Daily Kos or the Huffington Post negatively impact free speech by not devoting enough coverage to causes favored by President Trump. 

The FEC’s attempts to regulate online political speech were much more egregious than the FCC’s attempts. Proposals considered by the FEC, and rejected by virtue of 3 – 3 ties amongst the commissioners, included expanding campaign disclosures to include videos posted online, both by the candidate and by independent groups, along with limitations on candidates’ use of social media.

Since leaving the FEC earlier this year, Ann Ravel, the FEC’s Chair under President Obama, doubled down on her arguments in favor of regulating online political speech. In a presentation at the University of California at Berkeley, Ravel argued for greater regulation of political speech and ads appearing on sites like Facebook. Under proposals discussed in her speech, the government may require individuals posting videos on YouTube or posting statements in support of a particular candidate on Facebook to disclose those posts as campaign contributions.

When contributions are disclosed to the FEC, the FEC posts them on its website. The contributions are instantly searchable. Anyone can locate the “donor,” including the donor’s name and mailing address.

Disclosure and transparency are good for government and elected officials. Citizens need to know what their elected representatives and unelected bureaucrats are up to. Disclosure and transparency are not well-suited for individual citizens. When the government forces average citizens publicly to disclose contact information in return for the privilege of posting political content, the government and independent advocacy groups can, and will, use that information to intimidate citizens into silence.

In California, for example, a trial court refused to allow the state’s attorney general access to unredacted donor information appearing on Americans for Prosperity’s federal tax forms based on a history of activists using the information to intimidate donors and employees. Similarly, due to existing disclosure laws, financial supporters of Proposition 8 in California found themselves subject to harassment, protests, and death threats because their political opponents could access contact information online.

Beware any time the government seeks to protect something, such as online political speech, by exerting more control or by demanding “greater disclosure.” The First Amendment guarantees the government will not impinge upon citizens’ rights. It does not need help from unelected bureaucrats to fulfill its role.

Jonathon Paul Hauenschild, J.D. is a technology policy analyst. He is the founder and principle of Franklin Adams & Co., LLC.

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