Former FEC Chair Goodman Advocates Free Speech on Internet

Former FEC Chair and RNLA Board member Lee Goodman, represented by fellow RNLA Board Member Mike Columbo of Dhillon Law, advocated free speech on the internet in a recent friend of the court brief filed in the U.S. Court of Appeals for the District of Columbia Circuit concerning Campaign Legal Center, et al. v. FEC.

The brief argues that the production and input costs incurred to produce and disseminate free online political communications, like YouTube videos, are exempt from regulation under the FEC’s Internet Exemption. That rule, adopted by the FEC in 2006, exempted free online communications from regulation:

The Commission grounded its analysis in the statute. Congress, the Commission observed, had defined a “public communication” to mean communications disseminated via “broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising.” 52 U.S.C. § 30101(22). Notably, despite the internet existing for more than 40 years, it is still not included on this list. This makes sense given that the internet is a unique medium because of the degree of autonomy, control, and ease in disseminating electronic messages from a personal computer, as well as the autonomy of the recipients of such messages to ignore or amplify them. Outside of paid online advertising, virtually any citizen can disseminate her political speech on the internet without a filter in ways, and to audiences, that are fundamentally different from the mass media enumerated in the Act. Mass media, by contrast, generally require payment of a fee for the dissemination of messages to reach a third-party’s established audience.  

However, Democrat commissioners and liberal reform groups like Campaign Legal Center have been working to reverse the rule and subject free online posts to full-blown regulation. In December 2022, the Campaign Legal Center won a ruling in the U.S. District Court (Judge James Boasberg) that some “input costs,” like the cost of a personal computer, should be regulated. The FEC appealed. 

Goodman’s brief argues that the District Court was wrong and that regulating the cost of a personal computer would vitiate the entire exemption – because everyone must buy a computer in order to communicate over the internet:

This Court should reverse the lower court’s failure to properly review of the Commission’s decision under an arbitrary and capricious standard of review and defer to the Commission’s interpretation of its own clear regulation—a regulation and interpretation based on decades of regulatory experience, an extensive formal rulemaking, and prior litigation. The regulatory consequences of the District Court’s opinion—expanding the definition of “public communication” to include “input costs” such as the price of a computer—would be broad and severe. It would return the agency and American citizens to the 1998 Leo Smith paradigm and subject all costs incurred to produce internet content to potential regulation, chilling noncorruptive online speech and likely violating the First Amendment.

We applaud our Board Members for weighing in on this important topic.