So many First Amendment defects, so little time (Updated)

Florida SB 1316 would require non-journalist bloggers who write about members of the state executive or legislative branches to register with the state.

The bills has so many constitutional defects that different commentators can find and focus on different things. Jeff Kosseff (Naval Academy) focuses on the loss of anonymous speech. Kosseff wrote a book on that, so it makes sense that he would lock onto that when I did not. I latched onto the registration requirement, which goes beyond prohibiting anonymity and into an effective licensing system. (A bill could prohibit anonymous speech by requiring bloggers to publicize their names; this bill prohibits anonymity while authorizing a formal government database of speakers, a further constitutional problem). It also creates a new set of arguments for the state. Sen. Jason Brodeur, the bill's sponsor, does not appear to be a smart person, but someone must have told him that a flat ban on anonymous speech could not fly. But I believe Brodeur hopes to defend the bill as a lobbying regulation--any non-journalist who writes (for pay) about Florida public officials seeks to influence those officials and thus engages in lobbying, which the state can regulate through formal state registration and authorization. That does not save the law--A legislature likely cannot define lobbying to extend beyond "direct communication" with government officials on specific government business; speech "about" an official, even for money, cannot qualify. But it suggests a scheme beyond prohibiting anonymous speech.

The bill has prompted a different question over how we write and talk about law--how much should we worry (and write)about performative legislation? Josh Chafetz wants us to consider (and describe) the broader context--whether the bill originates with governor and/or legislative leadership (which makes passage more likely) or  with a random backbencher pandering to the base; we should not get too worked up if the bill has no realistic chance of passage. Kosseff, emphasizing the increase in these bills, urges vigilance in all cases--"If a legislator proposes a bill, which could be considered at any moment, I'll take that proposal seriously until it's off the table." I think the positions co-exist--Josh does not suggest ignoring the bill, only making context and likelihood-of-passage part of the story and the analysis.

Finally, Kosseff says "So many of us -- me included -- have taken the First Amendment for granted over the past few decades. I fear that it's about to face some pretty big stress tests and we're pretty unprepared." Early in my career, a senior colleague questioned my interest in writing about free speech; I responded that this area is fun because we usually win. That may be changing.

Update: So I was right about three things. Sen. Brodeur explains on Twitter that he sees this as a lobbying regulation.  This violates the First Amendment because calling something lobbying, beyond that core definition, does not make it lobbying. And Sen. Brodeur is not a smart person.