Outsourcing Political Speech

This piece is cross-posted at The Command Post.

I've been reading a lot recently about the FEC's attempts to regulate political speech online - specifically ruling that a link to a campaign website constitutes an 'in kind' contribution, opening the blogger up to a number of penalties for exceeding the limit. I agree with many that, at some point in the near future, there will be some sort of constraints placed on what you can and can't say on your blog. The severity of the laws I'll leave to your paranoid imagination.

James Miller writes that 'when an industry faces a new and significant threat to its profits and powers it turns to the government for protection.' Maybe, but when the blogosphere faces a significant threat it uses its own inherent flexibility to find a way around it - or through it.

The question is, what are you gonna do about it (apart from the obvious initial response of blogging angrily about the FEC)? It's 2008. You want to keep Hillary out of the White House because she's running on a platform of mandatory spaying but it's illegal to endorse her competition without wading through a stack of disclaimers the size of Hillary's ego. So why not just bypass the laws? If it's illegal in the US to link to a campaign site, you can make all the contributions you want by outsourcing the job here to the UK. Ask me to post your thoughts. Ask Norm Geras. Ask Samizdata or Tim Worstall. We can write about whatever candidate you support with impunity. What are the FEC gonna do? Extradite us to Gitmo?

John Smith in New York can e-mail me his commentary and I'll blog it. His email doesn't count as a political contribution as it's intended for an audience of one and is password protected. As soon as it lands on my blog, though, it'll become a public communication. But what laws have been broken? All you did was link to this here site. You're not endorsing anyone. No, no, no. Look, here's a picture of your cat - which is, of course, the real reason you blog. Nothin' to see here.

If the FEC wants to delve into regulating the Internet we have the upper hand, because we're all geeks who were here when they launched the mouse. We were around when the main selling point of a computer were that you could make a cool wavy line after writing only 300 lines on code. We'll beat them with computers because we're better at it than they are. We'll just find different ways of promoting out chosen candidates.

Think about it. You don't want the government to get their hands on your hard earned drug money? Send it to the Caymans. You don't want to be fined by the FEC? Blog-by-proxy.

Imagine it - instead of requesting the use of the webspace of individual foreign bloggers, how about a group blog of political posts hosted in the UK but written by a stable of US bloggers, with me receiving posts from the US by email and putting them up online moments later. You're not breaking any US laws. As far as you're concerned you're sending a private email to a foreign friend, and he unaccountably keeps letting them escape into the public domain, darn it.

Now, I'm not quite sure about the legal issues that would arise from outsourcing political speech. It's been several years since I studied law (UK law, and I was no great shakes back then anyway). The closest doctrine I can find that could be used to prosecute a US blogger is 'active personality', a doctrine used to prosecute citizens at home when they commit crimes overseas. There are a couple of problems with that, though. First is the fact that it probably only applies to criminal charges, and a breach of current FEC regulation is usually dealt with in the civil courts - though imprisonment is a possibility. The other problem is that political speech on blogs isn't regulated in the UK, so it could easily be argued that no breach occurred.

Still, wouldn't it be fun to watch the FEC try to prosecute a US citizen as an accessory to a British blogger writing political commentary on British soil using British equipment? The best part? You can blog all about it.


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