FEC Commissioner Uses Russian Meddling As Excuse To Restrict Internet Speech

David Warrington Vice President for Election Education, Republican National Lawyers Association
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Anti-free speech liberals have long sought to regulate and restrict Americans’ freedom of speech on the Internet.  Now, their longtime champion, FEC Commissioner Ellen Weintraub, has found her latest excuse to restrict American citizens’ free speech on their own websites, blogs, YouTube, and social media platforms like Twitter and Facebook.  Speaking about Russian meddling in the last election at a recent meeting of the FEC (at minute 10:55), Weintraub stated:

If you’re interested I’m happy to talk about it but I’m not here proposing that we reopen the entire Internet rulemaking from 2006.  I think that’s something we might want to talk about at some point because, if only because technology has dramatically changed since then, and you know what the state of play back then and the state of play today is just very different, and that might have some ramifications that we might want to think about.

Earlier in the same meeting (at minute 4:20) Weintraub emphasized how technology has changed since the FEC adopted a rule in 2006 leaving free Internet postings free of regulation.  Her observations sounded like the predicate justification to change policy.

That’s how government restrictions on civil liberties always begin – a conversation of the avaricious about changes in circumstances that might warrant additional regulation, with a spice of Russian meddling thrown in for demagogic context.

Weintraub’s most recent choice of words is akin to the proverbial camel’s nose under the tent.  Rather than lead with what she actually wants – full regulation of speech on the Internet – she was careful to open her conversation without a specific proposal.  She knows the public backlash her fellow traveler former FEC Commissioner Ann Ravel encountered after she voted to regulate YouTube videos disseminated for free accompanied by a clarion call for the FEC to change its restrained approach to political speech on the Internet.

That was a big mistake, substantively and politically.  But Ravel was an inveterate Internet regulator.  She had been pushing greater regulations on bloggers and online speech long before she came to the FEC.

Weintraub is more slippery than Ravel.  Where Ravel would walk off a political plank, Weintraub knows how to be politically expedient above all else.  For example, pining for support of Senator Schumer’s law firm to keep her post (she’s 16 years into a six-year term and wants to stay), she recently broke with reformers in voting to greenlight a Democrat group’s online fundraising application.  That vote earned her rebukes from reformers, but might have won her quid pro quo political support to stay on the FEC a little while longer.

And Weintraub watched Ravel vote to punish Fox News for the crime of adding candidates to its debate stage.  Weintraub stepped back from the plank, voting to find that Fox News violated the law, but not to punish in an abundance of political “discretion.”

But Weintraub’s regulatory plans for the Internet have been just as clear as Ravel’s in a series of votes in FEC regulatory actions.  She voted with Ravel to regulate videos posted for free on YouTube.com by a group called Checks and Balances as “independent expenditures” requiring disclaimers and expenditure reports.  Weintraub did so even though she had voted in 2006 for the regulation that exempts free online postings from the definition of “expenditure.”

She also voted with Ravel to prohibit a group from webcasting videos featuring interviews with candidates, even though the 2006 Internet rule left groups free to post electoral content on their own websites.

It’s ironic that Weintraub used to claim credit for launching freedom on the Internet in the FEC’s 2006 rulemaking, but now says Internet speech freedom went too far.  It’s too free, she now maintains, and she’s calling for a retrenchment. You know you’ve been at the FEC too long when you start cannibalizing your own policy achievements.

More recently, she has used the Russian meddling situation to justify disclaimers on all paid online posts, including small screens like iPhones, even if the wordy FEC disclaimer leaves no space for a political message.  Imagine small banner ads on your iPhone that say “Vote Smith.  Paid for by American Citizens and not authorized by any candidate or candidate’s committee. www.AmericanCitizens.org.”  The message, “Vote Smith,” would account for just two of 15 words.

Ravel also has been busy calling for all new regulations on social media platforms like Facebook and Twitter.  She is calling for the federal government to regulate social media platforms like public broadcasters and public utilities (it was just a matter of time) and make them responsible for policing advertisement sponsors as well as the truth or falsity of social media posts.

Ironically, a look at Ann Ravel’s twitter account reveals that she recently tweeted a fundraising solicitation for a Democratic congressional candidate.  Guess what: no FEC disclaimer!  Was Ravel’s invitation to a fundraiser authorized by the candidate?  Americans need to know, the argument goes.  Watch out @AnnMRavel, Commissioner Weintraub is coming after you!

Weintraub said she will start her attack on online free speech small by tweaking FEC disclaimer requirements for online paid ads.  Republican Commissioner Lee Goodman, an Internet freedom advocate, said (at minute 13:30) he was suspicious of Weintraub’s objectives, because demanding disclaimers on foreign ads would be illogical.  Foreign paid ads already are prohibited by law.  Adding a disclaimer requirement for ads that already are illegal would not be effective.  Furthermore, he questioned whether the United States could effectively police disclaimers on ads posted by foreigners, on foreign computers, through foreign servers, on foreign soil—it is, after all, the World Wide Web.

Given these obvious limitations, Weintraub’s true aim, just like Ravel’s, must be greater burdens on all political communications by American citizens online.  YouTube videos, Facebook posts, and webcasts streamed over the websites of American citizens will be fully regulated—starting small with disclaimers and soon moving to expenditure reports and even censorship of links, re-tweets and free online interviews under broad theories of “coordination” and prohibited corporate in-kind contributions.

No doubt, Democrats like Weintraub and Ravel will use reports of Russian meddling as an excuse to abolish the civil liberties and First Amendment rights of American citizens, from the FEC to the FCC.  The Russia subject has become an excuse for all sorts of official curiosity, fishing expeditions, inquisitions of tech leaders, subpoenas, eavesdropping and wire-tapping, and calls for restricting the civil liberties of American citizens.  The Russians are likely pleased with that result.

David Warrington is a partner at the national law firm of LeClairRyan and chairs the firm’s political law practice.  He is Vice President for Election Education for the Republican National Lawyers Association and Chairman and General Counsel for America’s Foundation for Law and Liberty.

Views expressed in op-eds are not the views of The Daily Caller.