Fortunately, the courts seem to be siding with freedom. A Florida state Circuit Court recently held that bloggers enjoy the same First Amendment protections as other members of the media. Gigaom reported:

“Under state law, anyone who wants to pursue a defamation case has to notify the media outlet in question five days before filing. But Christopher Comins argued he didn’t have to do so in the case of a blog post from university student Matthew VanVoorhis, because blogs aren’t a traditional form of media and therefore aren’t entitled to notice.

“As Techdirt notes, Comins’s argument was thrown out by the original court, but he appealed. Now, an appeals court has upheld that decision — and in the course of doing so, the judges in question chose to provide some great commentary on the importance of blogging as a form of media.”

Here’s the key section from the court decision:

“The advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative… the impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa.”

Indeed, as Gigaom noted, a Pulitzer Prize just was awarded to blogger Glen Greenwald for reporting on Edward Snowden’s revelations that the government spies on all of us, all the time, in violation of our Fourth Amendment rights. (Albeit the blogs also were published in two print newspapers; but most of us read Greenwald’s articles on his blog.)

Freedom is indivisible. Bloggers, fortunately, also are protected by the First Amendment.

By John Seiler

We appreciate our commentators adding to our articles. But the past two days I have spent several hours deleting abusive posts, in particular from one commentator who has contributed interesting, civil comments in the past. He has been banned until Monday. If the abuse continues after that, he will be banned permanently.

In one post, he accused us of “censoring” him, something a “libertarian” organization is not supposed to do. But libertarianism means property rights. CalWatchDog.com is not owned by him, but by the Pacific Research Institute. PRI has hired myself and other editors to set specific standards of journalistic probity, including for commentators. We have done that.

Property rights and free speech mean that this person, or anyone, has a right to set up his own Internet news site, which nowadays can be done for free here or here. We will defend his right to do so.

All of the editors come from newspaper backgrounds, most recently the Orange County Register. I have worked for three major newspapers. We have adapted the common industry practice of allowing wide latitude to comments, especially those that disagree with us, but not abusive comments. This will continue.

In deleting some of the abusive posts, in some cases comment threads have become disjointed. That is unfortunate. But I do not have all day to try to repair the continuity of every thread. This is a shoestring operation that already does a great deal with a limited staff.

We also have gone outside newspaper practice somewhat by allowing anonymous comments. If the abuses continue, we may have to end that, although I don’t want that.

I enjoy the give and take, and many contributors have provided insight and even corrections where we have made mistakes.

But incivility will not be tolerated.

By John Hrabe 

Following widespread criticism from online pundits and free speech advocates, California’s political watchdog is backing away from a plan to require news websites and bloggers to disclose payments received from campaigns and political committees.

Ann Ravel, chairwoman of the Fair Political Practices Commission, announced earlier this month her intention to pursue regulations of bloggers that are funded to advocate for or against candidates. “Ultimately I’d like to see the FPPC require it,” Ravel declared at an April 19 campaign finance conference in Sacramento, the Orange County Register reported. After listening to bloggers’ concerns, Ravel now says that that she will be looking for other ways to inform the public about any potentially biased online sources.

“There are probably insurmountable complexities to making them mandatory,” Ravel told CalWatchDog.com while on vacation in South America. “As opposed to asking the bloggers to do it on their sites, which is the most effective option for the consumer, it may be more reasonable and less problematic to require that we get an isolated accounting from the committees” for the campaigns.

“The committee should have the obligation, but not the blogger or the news media,” she added. 

In addition to greater itemization of campaign committee payments, Ravel discussed a voluntary disclosure process for voters to verify with the FPPC that a blog or website does not receive campaign funds.

“Most people get [campaign] information from the Internet, and it should be known to them if people are getting paid,” she said.

Ravel’s reversal received mixed reaction from political bloggers. 

“Today’s voluntary disclosure will be tomorrow’s mandatory regulation,” said Jon Fleischman, publisher of the Flash Report, a website for which this author serves as a senior editor. “If the FPPC starts with voluntary disclosure of campaign payments, it will inevitably become a mandatory requirement of all blogs and websites.”

Other bloggers welcomed the idea of a voluntary disclosure process. 

“I’d be happy to voluntarily post every dollar I receive,” said Scott Lay, who publishes AroundtheCapitol.com, a non-partisan news aggregation website. “Let’s face it, we have some big time flacks that take money and tweet and blog all day long for money.”

Ravel: We Have the Power to Go Out of State

Critics of a state-level disclosure requirement also complained that they would be at a disadvantage to websites that are physically based out of the state. “The Internet is global,” wrote Mark Paul on his blog, the California Fix. “The commission’s jurisdiction is limited to California.”

The state’s top campaign regulator, who spoke to us by phone from Brazil, agreed that the Internet age changes how political information is shared and campaigns are regulated. However, she steadfastly defended the agency’s authority to regulate online political activities designed to influence California elections, even if sites are physically based out of the state.

“I believe we do have the power to go out of state,” Ravel said of online political activity intended to influence the California electorate. “If there is money being spent, no matter where that money comes from, we have the power to regulate that.”

CalWatchDog.com has previously reported that some legal experts believe legal precedents could allow California’s political regulatory agency to cross state lines. UCLA law professor Stephen C. Yeazell argues that Pavlovich vs. Superior Court, a 2002 California Supreme Court case, established an “effects test” for evaluating jurisdictional claims in the Internet age. He believes it could provide a legal justification for the FPPC’s regulation of out-of-state bloggers, if the sites featured California ads or content.

Bloggers Singled Out

In response to her original proposal, many bloggers expressed outrage with being singled out and treated differently from traditional media sources.

“While more transparency is a good idea across the board, bloggers often get singled out for ethics concerns when there are far greater conflict-of-interest problems with commentators in the traditional press,” said David Atkins, who has been blogging off and on for seven years for DailyKos and Digby’s Hullaballo. “I just resent the notion that bloggers are being singled for disclosure issues that are more prevalent and more consequential in the traditional media.”

Atkins, who also serves as the first vice-chair of the Ventura County Democratic Party, said that he goes out of his way to disclose any campaign affiliations, including when he is an “unpaid super-volunteer.”

“The same newspapers that are happy to print stories by the likes of Judith Miller as ‘objective journalism’ seem overly concerned about the ethics of bloggers, and that double standard seems to be applied by the FPPC in this case as well,” Atkins said.

In Ravel’s mind, “it’s not bloggers versus regular media,” as long as the outlet accepts “advertisements at the market rate.” 

Political Watchdog to Fundraise

Ravel said that her highest priority as the state’s ethics czar has been to increase disclosure.

“My aim is to have everything on the FPPC website. That is the goal. All those forms should be in one spot and easily searchable,” she said.  

In order to achieve that goal amid ongoing budget constraints, Ravel suggested that the state agency that oversees campaign fundraising might do fundraising of its own.

“The FPPC has the ability to fundraise,” Ravel pointed out. “I’ve been going out talking to a number of foundations and other public service groups that provide some coding work to see if there are ways to get this done.”

Stephen Frank, the conservative publisher and editor of the California Political News and Views, criticized the idea of a government regulatory agency, such as the FPPC, seeking funds from private organizations or advocacy groups.

“Imagine if Al Gore could start funding the EPA, imagine what damage that could do,” Frank said. “I am surprised that as a Democrat she wants to privatize a government agency because that is the slippery slope that she is suggesting.”

Frank believes that fundraising from “organizations of her choosing” would allow biased nonprofit organizations to influence regulators.

“I would strongly suggest she approach George Soros to fund her efforts to silence freedom of speech, that is his specialty,” he said.

By John Hrabe

California’s chief political watchdog, Ann Ravel, recently announced plans to regulate political websites that accept payments from campaigns. Last year Gov. Jerry Brown appointed her to head the Fair Political Practices Commission.

California bloggers right, left and center quickly criticized the proposal for quashing free speech and putting them at a disadvantage to out-of-state competitors.

“The Internet is global,” wrote Mark Paul on his blog, the California Fix. “The commission’s jurisdiction is limited to California. If campaigns find it useful to make payments to online sock puppets, won’t they funnel the dollars to bloggers living outside the state? Do we want to send jobs out of California?” Paul also is the co-author of the new book, “California Crackup: How Reform Broke the Golden State and How We Can Fix It.”

Out-of-state competition might not be a problem, say some legal experts, because California’s Fair Political Practices Commission could cross state lines and police out-of-state blogs and websites, including international news aggregators like the Drudge Report, regardless of their location. And there is adequate case law to back it up.

Pavlovich Precedent: The ‘Effects Test’

UCLA law professor Stephen C. Yeazell argues that Pavlovich vs. Superior Court, a 2002 California Supreme Court case, established an “effects test” for evaluating jurisdictional claims in the Internet age. He believes it could provide a legal justification for the FPPC’s regulation of out-of-state bloggers, if the sites featured ads from California campaigns.

“Under the Pavlovich test, the question is whether or not the speech is aimed at California,” Yeazell said, when asked if California had jurisdiction to regulate an out-of-state website like the Drudge Report. “On the one hand, the website’s speech is aimed at California by advertising California campaigns and posting links about California stories.”

“Internet jurisdiction is a mess,” added Samuel Issacharoff, Professor of Constitutional Law at New York University School of Law, who shared Yeazell’s interpretation of the Pavlovich precedent.

Aggregators, Bloggers and News Sites Affected

National political websites and news aggregators, such as the Drudge Report, the Huffington Post, the Daily Caller and Real Clear Politics commonly feature stories on California while also running advertisements from California candidates, initiatives and campaigns. Matt Drudge, now a Florida resident, founded his website while based in California.

“What kinds of content would trigger the disclosure?” asked Paul. “Any sort of favorable comment about a campaign or critical comment about a rival campaign? Links to news reports favorable or damaging to a campaign?” They were questions raised by many California bloggers.

An FPPC spokeswoman told CalWatchDog.com that the specific details have yet to be determined. She added that Ravel was currently traveling out of the country and would be available for an interview on Friday.

Jerry Roberts and Phil Trounstine of CalBuzz, who are the only bloggers to interview Ravel on the subject, wrote on Monday, “We’re happy to report, after our conversation, we think she agrees with us that the best way to confront secret payments to websites that propagandize for their retainers lies in stricter, more timely and precise reporting of campaign expenditures.”

Critics of the state’s regulatory agency are less optimistic and warn that the proposal is a first step toward more regulations of political speech.

“This means a lot more than the issue at hand; it means the first of many additional steps to regulate political speech,” said Jonathan Wilcox, a communications consultant and former speechwriter for Gov. Pete Wilson. “Given the troubling political practices just in Sacramento, some will wonder if the FPPC could catch a speeding driver at the Indy 500.”

Chandra Sharma, the publisher of Fox and Hounds Daily, complained about the agency’s bad track record with new technology.

“The FPPC’s attempts to regulate online political speech over the past few years have been badly conceived and ill-informed,” he said. “This is yet another example of the FPPC attempting to regulate a medium it doesn’t understand, and as others have already noted, they haven’t even begun to realize the kind of unintended consequences that would manifest themselves as a result.”

No Protection from the First Amendment

Both Yeazell and Issacharoff, experts on jurisdictional issues, are skeptical that the FPPC would win a dispute with out-of-state bloggers because of complicating factors, such as First Amendment concerns. “I also imagine the courts being hesitant to extend the reach of a state regulatory agency in this case given other factors, including the First Amendment implications,” argued Yeazell. However, First Amendment experts believe that a state regulation of political websites, if properly crafted, could withstand a First Amendment challenge.

“When a blogger is paid to write for a campaign, that’s basically a campaign buying a political advertisement, said UCLA law professor Eugene Volokh, who publishes the legal blog, The Volokh Conspiracy. “The Supreme Court has held (in McConnell and Citizens United) that the government may require political advertisers to identify the source of the advertisement. Requiring the blogger to identify his speech as an advertisement paid for by a campaign would be much the same as the identification requirements that had been upheld — it would inform the public about who is actually paying for the speech, and do so at the moment the speech is received.”

Michael Houston, a partner at the Newport Beach firm Cummins & White, LLP, shared Volokh’s interpretation and emphasized that there’s little difference between a paid blogger and paid spokesman.

“Frankly, I see little difference between a blogger advocating for a candidate or cause and a paid spokesman,” said Houston, who specializes in political law and regulatory issues. “The only real question is whether the bloggers should have to do so on their own.”

Former FPPC Chairman Dan Schnur expressed concern that new regulations “would discourage people from adding their voices to the political dialogue.”

“Whether it is constitutional or not shouldn’t be the only threshold,” said Schnur, the director of the Jesse M. Unruh Institute of Politics at the University of Southern California. “It may be constitutional but that doesn’t mean it’s a good idea”

(Coming up Friday: Part II: How Bloggers’ Voices Will Be Affected.)