Application of Traditional Legal Analysis to Blogs May Indicate No Web Difference

In 2005 the FEC considered whether a Blog qualified for the press exception to the U.S. Federal Campaign Contribution laws.  In its advisory opinion 2005-16, the FEC applied a two-step analysis (from 1981) to determine whether the press exception applies:

"First, the Commission asks whether the entity engaging in the activity is a press entity as described by the Act and Commission regulations. See, e.g., Advisory Opinions 2004-07, 2003-34, 2000-13, 1998-17, 1996-48, 1996-41, and 1996-16. Second, in determining the scope of the exception, the Commission considers: (1) whether the press entity is owned or controlled by a political party, political committee, or candidate; and (2) whether the press entity is acting as a press entity in conducting the activity at issue (i.e., whether the entity is acting in its “legitimate press function”). See Reader's Digest Association v. FEC, 509 F. Supp. 1210, 1215 (S.D.N.Y. 1981); FEC v. Phillips Publishing, 517 F. Supp. 1308, 1312-1313 (D.D.C. 1981); Advisory Opinions 2004-07, 2000-13, 1996-48, and 1982-44. Two considerations in applying this analysis include whether the entity’s materials are available to the general public and are comparable in form to those ordinarily issued by the entity. See Federal Election Commission v. Massachusetts Citizens for Life, 479 U.S. 238, 251 (1986); Advisory Opinion 2000-13 (concluding that a website covered by the press exception was “viewable by the general public and akin to a periodical or news program distributed to the general public.”) "

Nothing about this analysis implies that the FEC considered applying a new legal analysis to the web.  Even if they did consider it, the fact remains they ended up using the same legal standard that was used in 1981.  This, in my opinion, was probably the right decision and was a triumph for consistency.  However, it may have broader implications.  It may indicate that (to the law) blogs are not drastically or fundamentally different than press outlets of the past but rather are merely the newest way we have found to share information with each other and thus, may be governed by the laws that regulated how we shared information with each other in the past.  Should the laws of the past govern the communications of tomorrow?