Sunday, March 5, 2023
Licensing Paid Blogs?
When your appellate practice focuses heavily on constitutional issues, as mine does, it is hard not to look at news stories and imagine the upcoming litigation. I had that reaction when I saw what is only a bill in Florida, but absurdly seeks to license blogs that generate income and mention government officials.
S.B. 1316, introduced by State Sen. Jason Brodeur, seeks to treat bloggers the same way as lobbyists, imposing registration and reporting requirements, although it exempts blogs that appear on a newspaper’s or similar publication’s website. Registration and reporting is required “[i]f a blogger posts to a blog about an elected state officer and receives, or will receive, compensation for that post.” The report must disclose the source and amount of compensation, rounded to the nearest $10.
Presumably, the legislation is being justified on the idea that disclosure can be required “so that the people will be able to evaluate the arguments to which they are being subjected.” Yet, it immediately recalls the early prior restraints that followed registrations of printing presses in the 1600s and licensing of newspapers.
The legislation raises a host of constitutional issues. First, it says nothing about its potential extraterritorial import. Does the sponsor anticipate that a blogger in another state would have to comply with its registration and reporting requirement even though separate and apart from the First Amendment issues such a requirement would violate the Dormant Commerce Clause and due process for its attempt to reach beyond the State of Florida? And, how could it be enforced against an out-of-state blogger? And, if it does not apply, what justification exists for treating an out-of-state blogger differently from one who resides in-state, even though both blogs would be equally available through the Internet.
Still, by exempting newspapers and other publications, the legislation fails to treat all paid publications evenhandedly. The Tenth Circuit found the distinction likely fatal when faced with the same issue at the preliminary-injunction stage. There, Colorado attempted to claim that “a valid distinction exists between corporations that are part of the media industry and other corporations that are not involved in the regular business of imparting news to the public ” in support of a disclosure law that treated mention of a political candidate to constitute electioneering. In fact, the Supreme Court in its controversial Citizens United decision state that “[t]here is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.”
Another distinction in the legislation likely fails to pass constitutional muster: the distinction between paid bloggers and gratis ones. More than three decades ago, the Supreme Court shut down differential treatment of those engaged in expression on public matters based on compensation.
It is difficult to think of a justification for registration and reporting at the mere paid blog mention of a state official. Doing so only facilitates further regulation, scrutiny, or retaliation. If the disclosure has a public purpose, why is that purpose not equally compelling on issues of public concern or non-office holding political candidates? Instead, by tying it to officeholders, the legislation suggests an improper purpose. After all, the First Amendment represents a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Thin-skinned politicians need not apply.
S.B. 1316 may never become law. Even if enacted, it seems unlikely to ever take effect.
 First Nat. Bank of Bos. v. Bellotti, 435 U.S. 765, 792 n.32 (1978).
 Citizens United v. Gessler, 773 F.3d 200, 212 (10th Cir. 2014).
 Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 352 (2010).
 See Meyer v. Grant, 486 U.S. 414, 424 (1988).
 New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
Posted by: Idle Breakout | Mar 5, 2023 8:55:46 PM