Anyone paying much attention to comparative politics has probably noticed that organized bloggers and their readership–i.e., the core of the “netroots”–has played a much more prominent role in U.S. politics, especially on the left side of the spectrum, than in other highly “wired” countries. There are numerous possible explanations for this example of “American exceptionalism,” including the relative weakness of institutional parties in the U.S., which creates a more decentralized political environment.
One explanation may be derived from differences in the legal regimens affecting the blogosphere. While there have been plenty of political efforts to marginalize bloggers in the U.S. (most recently by Fox News’ Bill O’Reilly, who tried unsuccessfully to make the YearlyKos event radioactive), the one truly significant action restricting blogospheric expression has been the U.S. military’s decision to block service members’ social networking sites and blogs due to security and bandwidth concerns
This relative freedom from regulation may be the exception rather than the rule.
Allison Hayward, a Professor of Law at George Mason University, has posted an unpublished manuscript of her research on government regulation of political blogs. Hayward compares the regulatory regimes of the United States and Germany for clues as to how the legal foundations of political speech may affect the development of internet advocacy. She sees this cross-national study as essential to understanding the present and future of the internet as a political tool because of enormous growth in foreign web traffic ( almost 70% of all content is now written in a language other than English), as well as the international nature of the web as a medium that transcends geographic and political boundaries.
The U.S.-German comparison is especially interesting because the visibility of political blogs in Germany was rising steadily as recently as 2005. But disparaties in German and U.S. law on the rights and responsibilities of political expression have begun to have a serious impact. In the U.S., Reno v. ACLU established a higher threshold for the state to regulate speech on the internet than is required on traditional media like radio or television. Bloggers are free to publish assertions of a speculative nature or of questionable veracity. Service providers are immune to liability for the content of websites on their network, publishers are immune to liability for comments by guests, and the anonymity of internet posters is protected by law.
The strongest restrictions on American political blogs fall under campaign finance laws that regulate how internet groups can raise money or contribute to campaigns. Great legal uncertainty remains about whether political blogs fall under the “public communications advocacy” group regulated by McCain-Feingold, or whether the blogosphere has a “press function” which would make it exempt from restrictions. A Federal Elections Commission ruling just yesterday defined DailyKos as a media entity, not a political organization (a decision that could be challenged in the courts).
But in Germany, political content is explicitly subject to state regulation. German law expressly protects “the right to respect for personal honor,” and this right has precedent over free expression. German laws also explicitly prohibit holocaust denial, “hate” speech, and symbols associated with the Nazi party. Bloggers can and have been prosecuted for violations in both these areas. And German libel laws place the burden of proof on publishers to prove the truthfulness of objectionable personal assertions about individuals.
Internet service providers in Germany can and have been held liable for the content of publishers on their networks, which creates an incentive for service providers to regulate what their customers publish. And all web publishers, including amateurs, must publish their name, address, and a tax identification number on their sites or face prosecution.
As Hayward notes, the European Union, whose statutues on political expression are more libertarian, could theoretically override German law in this area, though it hasn’t happened yet.
Ironically, the one area in which U.S. bloggers face regulation–campaign finance laws–is an area in which Germany is most permissive. Contributions to political parties from individuals and organizations are not only unlimited, but encouraged by tax incentives. Online fundraising in Germany requires no reporting, and donors may remain completely anonymous.
Hayward’s article mostly focuses on the narrow issue of how uncertainty about and differences between U.S. and German law governing political blogging could lead to future conflicts in the arena of international law. The contrast featured in the article, however, is a valuable resource for political observers who hope to better understand how the law has shaped this new force in American politics, and how it might have turned out differently under a different judicial regime. It also casts an interesting light on the ever-simmering issue of “net neutrality.” Political organization is a fragile thing, and how our government uses its coercive power can go a long way toward nurturing it to maturity–or stunting its growth.