Some readers privately asked me an interesting question about free speech and political advertisements in elections. One reader posted a comment on “Ethics and The Forma Group” that succinctly asked a very important and related question; “Wouldn’t then the blog post have to be identified as a paid political advertisement?” As you all know, I have recently written various posts about The Forma Group and their online political shenanigan for certain politicians.
An important question that needs to be asked is when does free speech intersect election law?
To be clear, I’m not a lawyer and as a layperson, I’m speculating based on my meager understanding of the law. Maybe the legal eagles reading my blog can chime in on this important question.
I consulted the Texas Ethics Commission Political Advertising brochure. According to the brochure, “The Texas Election Law requires certain disclosures and notices on political advertising.” The first thing that caught my eye was the following statement; “If you are not sure what the law requires, do the cautious thing. Use the political advertising disclosure statement whenever you think it may be necessary”.
The first thing the brochure does is define what political advertising is. The brochure offers a two-part test to determine whether a communication is political advertising. The first step is to define what the message says. Does the message support or oppose a candidate for office? Obviously most political bloggers would fall into this category.
The second part addresses where the communication appears. According to the Texas Ethics Commission, if it appears as an advertisement in “pamphlets, circulars, fliers, billboards or other bumper stickers” then it could be subject to the disclosure. The brochure adds that political advertising includes “published newspapers, magazines or other periodicals in return for consideration”. Of course, radio and television are included as well. The brochure adds; “Political advertising includes communications that appear on an Internet website.”
The Texas Ethics Commission brochure then addresses when a disclosure statement is required.
According to the brochure, a disclosure statement is required when the political advertisement contains “express advocacy” for a candidate. The brochure goes on to define “express advocacy” as a statement that “is authorized by a candidate, an agent of a candidate, or a political committee filing campaign finance reports”.
The Federal Election Commission likewise has similar examples of what constitutes political advertising. The question then becomes when does blogging transcend free speech and become advocacy on behalf of a politician?
On the surface, it seems like a clear cut case of blogging as a platform is free speech and therefore there should be no question that it does not rise to the level of becoming a political advertisement. Political bloggers are clearly in the realm of supporting or rejecting a politician or more. As bloggers we write about the political process and the majority of us point out politicians we believe are doing well or bad. This is especially true during the political season.
Likewise, most, if not all, would agree that the platform we use as bloggers, the Internet is covered by the Texas Ethics Commission brochure. Therefore the question now becomes, is a blogger under the definition of an “express advocate” for a candidate. The brochure addresses this by stating that a blogger operates in an “express advocacy” when the message is authorized by a candidate or by an agent of a candidate, or even a political committee subject to the Texas Ethics Commission.
Most political bloggers are individuals expressing themselves because they are passionate about a topic. It may be as simple as a specific public works the blogger opposes or as complex as the failure of a political process in the eyes of the blogger. The basis of free speech is based on the notion that everyone has a voice and they can use it to challenge public policy or even government authority.
However what about a blogger who uses their blogging for the advocacy of one or more politicians? Where does the blogger leave the free speech zone and enter the “express advocacy”? I believe the answer lies on why the blogger is posting their posts.
Take for example a blogger who writes as a direct result of direction given to them by someone who is being paid to run a campaign. The person directing the blogger’s theme or topic has a monetary incentive to communicate a message for, or against a politician. Whether the author of a blog is being paid by the individual directing the message is irrelevant because the communication is being created for the benefit of a politician.
The person directing the message be posted is likely a lobbyist consulting for a politician and therefore that individual is acting on behalf of the candidate and is likely also an agent for the candidate. Based on that scenario I then argue that a blogger that posts blogs meeting this set of criteria is likely subject to having to post the obligatory “political advertisement paid for by”.
Unfortunately, we will never find out because no one has the political will to test this because proving my thesis as true would eviscerate the monies flowing to the lobbyists. No politician wants that money flow to stop.