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April 05, 2005

If You're Going To San Francisco....

In a blatantly transparent move to get TigerHawk to move to the City of Brotherly Love, the San Francisco Board of Supervisors plans to vote on a new ordinance that opponents claim would regulate bloggers. According to first reports, the ordinance:

...would require local bloggers to register with the city Ethics Commission and report all blog-related costs that exceed $1,000 in the aggregate.

Blogs that mention candidates for local office that receive more than 500 hits will be forced to pay a registration fee and will be subject to website traffic audits, according to Chad Jacobs, a San Francisco City Attorney.

As my skepticism regarding such measures is well-known, I took a closer look. I wondered what prompted the ordinance in the first place: generally, bloggah paranoia aside, civil servants don't go around looking for extra work. Turns out there's interesting local background behind the ordinance.

Not surprisingly, a careful reading of the proposed ordinance shows it's not nearly as draconian as originally billed (via Michael Bassik). GaijinBiker provides a good analysis:

It appears the ordinance would require any blogger who reaches an audience of at least 500 unique visitors (not hits) over a 90-day period to post a disclosure statement indicating who paid for any "Electioneering Communication" on his blog.

Section 1.161.5(c)(3) defines "Electioneering Communication" as "any communication, including but not limited to any broadcast, cable, satellite, radio, internet, or telephone communication" that refers to a San Francisco candidate and is distributed to at least than 500 potential voters within 90 days before the relevant election. A blog shown to have, or to be likely to have, at least 500 unique visitors, would clearly fall within the ambit of this provision.

Interestingly, Section 1.161.5(c)(3)(C)(vi) exempts "news stories, commentaries, or editorials distributed through any newspaper, radio station, television station, or other recognized news medium" not owned or controlled by a political party, committee or candidate.

Section 1.161.5(b)(1) states that only someone who spends at least $1,000 during a calendar year on "Electioneering Communications" would need to report such expenditures to the San Francisco Ethics Commission.

Thus, it's not the case that "all blog-related costs" would have to be reported, but only those costs that paid for actual "Electioneering Communications". Obviously, this would be a tough line to draw, but if your blog has 50 posts about your pet cat Snuffles and one post urging readers to vote for Mr. Smith, some sort of pro rata assessment of site costs would seem to be appropriate. And while it might be reasonable to infer that enforcement of the ordinance might require all bloggers to register with the Ethics Commission, it does not mention such a requirement at all.

Indeed, it strikes me that very few, if any, bloggers would be affected by the proposed reporting requirements. Instead, the ordinance seems designed to force people to disclose payments made to bloggers in exchange for their saying nice things about a particular candidate. In other words, it's aimed more at the guys who paid Kos than at Kos himself.

FWIW, the Deputy City Attorney for SF concurs: (via Rick Hasen)

Thank you for your email. First, for the record, I have not spoken to Michael Bassik about this legislation. I do not believe that the description of the legislation that he attributes to me is a correct summary of the scope of the legislation. Second, from my brief glance at the information you sent to me (I apologize that I did not have time to read all of the information), the posting from GajinBiker appears to be a more correct analysis of the law. Finally, the legislation would regulate only those communications that meet the definition of an electioneering communication. I believe whether a “blog” would meet such a definition is an issue that the Board of Supervisors and/or the Ethics Commission will be working on in the future according to public statements made at the Rules Committee hearing on this legislation last week.

When contacted for comment, Supervisor Maxwell's office stated that blogs were exempt from regulation under the ordinance:

Daily Pundit just spoke with Sarah He, a staffer in Supervisor Sophie Maxwell’s office, who said: “This amendment does not affect bloggers. It specifically exempts weblogs.”

She described the interpretation of the amendment as being an attempt to regulate blogs as a “red herring.” When advised that the terms “blogger” or “blogs” don’t appear in the amendment, and she said that the SF City Attorney would be present at the Supervisor’s meeting tomorrow to make clear that the ordinance should not be interpreted as regulating weblogs or bloggers.

This was confirmed by a second source: (in the comments section of Bassik post)

I've spoken with Greg Assay, legislative aide to Supervisor Maxwell. Assay tells me that at tomorrow morning's board meeting, the City Attorney will make an announcement declaring weblogs as a "recognized news source." Which means that weblogs fall under the exclusionary provision and will not be considered an "electioneering communiation."

This should put the matter to rest.

But it won't, and I'm all for continuing to keep an eye on the nutjobs...accurately. DailyPundit will be liveblogging the Supervisor's meeting.

Despite my skepticism, Quote of the Day goes to Thomas Lifson:

So free speech will be taxed. Intrusive audits of expenses, revenue and traffic will be used to harass those who use the internet to express their views.

Meanwhile, nude dancing continues to be protected as “free speech.”

Something is very, very wrong.

Indeed... Repeal McCain-Feingold.

Posted by Cassandra at April 5, 2005 05:36 AM

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Yeah, but at the end of the day, it is just San Francisco. You knew it was a snake when you moved in.

Posted by: KJ at April 5, 2005 10:10 AM

And be sure to wear some flowers in your hair. That'll throw them.

Posted by: Cricket at April 5, 2005 01:35 PM

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