Who is a journalist? - still more

As each day passes, it does appear the Internet is going to force us to finally confront that question: Who (or what) is a journalist?

Having just posted on the Apple v. bloggers case, I continued catching up on my reading and came across yet more evidence, this time from Cnet, in this story about the Federal Election Commission and blogging provocatively titled "The coming crackdown on blogging."

The distilled version: The McCain-Feingold Act cracks down on cases where a campaign coordinates advertising and other communications with a third party. It's effectively an unreported campaign contribution. But what to do about all these passionate folks online who favor one candidate or another? Or those who simply look from afar and comment on the entire state of politics from their blogs or Internet sites? The FEC, 4-2, had approved an "Internet exemption." But as such things go, the matter went to court and a federal judge told the FEC to scrap that and figure out a way to regulate the Internet.

In the interview with C-net's Declan McCullagh, Bradley Smith, one of the six FEC commissioners, has these observations:

What happens next?
It's going to be a battle, and if nobody in Congress is willing to stand up and say, "Keep your hands off of this, and we'll change the statute to make it clear," then I think grassroots Internet activity is in danger. The impact would affect e-mail lists, especially if there's any sense that they're done in coordination with the campaign. If I forward something from the campaign to my personal list of several hundred people, which is a great grassroots activity, that's what we're talking about having to look at.

Senators McCain and Feingold have argued that we have to regulate the Internet, that we have to regulate e-mail. They sued us in court over this and they won.

If Congress doesn't change the law, what kind of activities will the FEC have to target?
We're talking about any decision by an individual to put a link (to a political candidate) on their home page, set up a blog, send out mass e-mails, any kind of activity that can be done on the Internet.

Again, blogging could also get us into issues about online journals and non-online journals. Why should CNET get an exemption but not an informal blog? Why should Salon or Slate get an exemption? Should Nytimes.com and Opinionjournal.com get an exemption but not online sites, just because the newspapers have a print edition as well?

Why wouldn't the news exemption cover bloggers and online media?
Because the statute refers to periodicals or broadcast, and it's not clear the Internet is either of those. Second, because there's no standard for being a blogger, anyone can claim to be one, and we're back to the deregulated Internet that the judge objected to. Also I think some of my colleagues on the commission would be uncomfortable with that kind of blanket exemption.

So if you're using text that the campaign sends you, and you're reproducing it on your blog or forwarding it to a mailing list, you could be in trouble?
Yes. In fact, the regulations are very specific that reproducing a campaign's material is a reproduction for purpose of triggering the law. That'll count as an expenditure that counts against campaign finance law.

It's tempting to say that C-net has a dog in this hunt as an online-only publication, and maybe Smith's overstating. But come on, Smith is one of the six who will have to make this decision -- essentially who is a journalist -- and so we'd better listen.