Fear and loathing in the blogosphere

if she’s pissing off both sides, then as the old saw goes, she must be doing something right :)

In a world where penumbras and emanations of rights create super-solid Constitutional doctrines, you just can’t get around the 1st amendment’s clear words.
dude. that is so pre-9/11 thinking.

a n00b question in re: sebastian’s point about free speech: is astroturfing considered protected speech and not marketing? and if it is considered marketing, shouldn’t it be regulated?

I really object to treating the blogosphere like a general media at all. It is the very closest thing to widespread personal publishing of political tracts that has ever existed. If it isn’t covered by the 1st Amendment pretty much nothing is.

I think part of the issue is that the major media outlets as they currently exist are also channels for spreading disinformation. They are currently highly regulated, but only to the extent that you need money to have your voice heard through those channels. I have no voice on this channel, but I do on the internet.

But maybe you could help us to understand Darr’s argument. Does she now advocate regulating media outlets generally? Or are we gong to see the political blogs shut down while Clear Channel accepts only conservative political advertising and Fox News continues to advance the Republican agenda?

I’m guessing that wanting to allow Fox the media exemption while denying the same to Daily Kos sort of wrecked Darr’s credibility as an advocate for fairness in the system.

I echo Tom in calling the attack on Atrios a cheap shot. He said then, as he has at other times, that the other media don’t come close to living up to this “standard” – so what’s the real agenda here? You can’t read his posts and miss his argument.

Wow, proponents of the “regulated free speech” theory. Great.
Next up: the “no criticizing the president in an election year” movement, followed closely by the uncritized “every year is an election year” proposal.
Great idea, genius.

I temporarily delurk to state the painful: I completely agree with Sebastian here.

The principle that seems to elude Harry and Darr is that (in principle) monopoly media outlets whose access (license) is granted by government entities need to be regulated. Similarly, newspapers generally exist undera sort of quasi governmental license as well, justifying their often monopoly status. But the commons do not. And if blogs aren’t a commons I don’t know what is.

So what if Thune types astroturf the nation with a thousand blogs. What sort of masochist would read them?

Once again it shouldn’t be a question of media exemption. This is as pure a 1st Amendment question as you are likely to see short of having cops personally stuff a gag in your mouth. This is political speech, the stuff that the 1st amendment is most concerned about.

“Once again it shouldn’t be a question of media exemption. This is as pure a 1st Amendment question as you are likely to see short of having cops personally stuff a gag in your mouth. This is political speech, the stuff that the 1st amendment is most concerned about.”

Oh good. I feel much better. I confess that I didn’t read Sebastian carefully enough, because it’s clear here that Sebastian doesn’t understand the crowding out effects of money targeted to finite bandwidth (wrt to content) outlets. Which I think is part Henry and Darr’s point.

Blogs, today, are another story though.

“I confess that I didn’t read Sebastian carefully enough, because it’s clear here that Sebastian doesn’t understand the crowding out effects of money targeted to finite bandwidth (wrt to content) outlets.”

See Constitutional point above.

“Carol’s making a legitimate argument which is highly uncomfortable for printers–that printing presses, as they exist today, are wide open to abuse, and specifically to becoming channels for the systematic spread of disinformation. It deserves a hearing–and a more serious response than puerile name-calling and appeals to the numinous self-correcting power of the community of printers.”

Part of my problem with this is that I personally don’t know what Darr’s position is.

Quotes like this about her:

She urged the commission to think carefully before automatically giving all blogs what is known as the “media exemption.”

make me think that she considers that the media exemption ought not to be granted to blogs.

Please help me understand what her position really is. Is it that “there [is] no logical basis on which the election commission could grant the media exemption to NBC…and deny it to Daily Kos,” but that the FEC should consider that possibility anyway?

Or is she interested in overturning the media exemption generally, for NBC as well as for Kos?

(And isn’t it kind of creepy that the right to political speech is spoken of as something that can be “granted” to us by a government commission?)

Blogs, he further argued, can be understood to have many of the same effects of public financing – creating an affordable or free platform for political opinions that might not otherwise be heard.

That would’ve been true if it was indeed an affordable or free platform. Maybe it is, I don’t know.

How much does it cost to design, develop, promote and run an elaborate political website with nice graphics, news, editorials, opinion columns, etc. – something like Slate.com? Can everyone afford it? If so, why did it take Bill Gates to do it?

[In a futile attempt to improve the debate: http://ipdi.org/UploadedFiles/59F2170E.pdf]

FEC Testimony
of
Carol Darr
Director, Institute for Politics, Democracy & the Internet
June 28, 2005

I am pleased to be back at the Federal Election Commission, where I started my legal career 29 years ago.

I represent the Institute for Politics, Democracy & the Internet, whose mission is to improve campaign conduct and promote democratic values through the Internet.

I want to use my limited time this morning to make three points.

First, the political landscape has changed profoundly because of the Internet, and the campaign finance regulatory scheme has to change with it. One of the most important things the Internet has done is to lower the financial barriers to entry to politics and to journalism.

Because of the Internet, politics is no longer limited to big donors and professional and semi-professional operatives. Those days are over. So are the days when corporate media elites could treat serious national journalism as their exclusive domain.

Now, thanks to the investigative efforts of bloggers, we no longer have to treat the pronouncements of network television anchors like Dan Rather as received wisdom. Stories like the racist comments of Trent Lott that would have died on the vine in years past now see the light of day thanks to bloggers who refused to give him a pass.

The second point I want to make is to urge that this rulemaking not become a vehicle for contributions by corporations and unions and wealthy individuals that are otherwise prohibited. For almost 100 years ­ since the Tillman Act was passed in 1907 ­ federal law has prohibited corporate contributions, in order to limit the corrosive influence of large aggregations of wealth.

To accomplish this goal while at the same time serving an equally important goal ­ not interfering with a free press, the Federal Election Campaign Act (the FECA) has made a fundamental distinction between media corporations and other corporations.

And that brings me to my third point, media exception. At its essence, this provision allows a media corporation, through certain of its employees — reporters, editorial writers, and cartoonists — to spend an unlimited amount of corporate money communicating with candidates, asking them anything about their campaigns, with no question relating to money or strategy off limits, activities, in short, that would be considered “coordination” if the person doing the asking were not considered media.

This exemption is so broad that, aside from the various journalists’ codes of ethics, there is absolutely nothing to stop the reporters from becoming partisan advocates of a candidate ­ what reporters derisively call “getting in the tank” with the candidate.

The media exemption, however, allows them this leeway, because to do otherwise would interfere with their rights as journalists. And all members of the press are entitled to this exemption: the good, the bad, the hacks, the partisans, and the crazies. Everyone from The New York Times to the National Inquirer to the independent journalist working in his basement distributing his work around the neighborhood on a mimeographed sheet is protected by the media exemption.

This broad treatment is in keeping with the legislative history, and is consistent with the FEC’s previous advisory opinions. Given these precedents, I expect that the members of the Commission will grant the exemption widely to bloggers, or you will send it back to Congress and they will specifically include bloggers.

But this broadly granted media exception contains within it an absolutely unavoidable consequence. And that is, there is no way to keep big money out of this picture.

My concern is not with the average citizen who chooses to publish a blog and share his or her viewpoints on the Internet, but with large corporations and unions who seek to unfairly influence campaigns by spending huge amounts of money under the guise of being a blog.

Let’s use one of my fellow panelists and his excellent blog as examples. Let’s assume that he is granted the media exemption, as I assume will happen.

As a media entity, he is entitled to use his own funds and the funds of his advertisers and any investors he can persuade to support his enterprise. Let’s say that the Halliburton Corporation wants to invest.

Call this new media entity the Halli-blogger. Like any media entity ­ for example, The New York Times or ABC News — it can publish anything it wants on any topic.

Like The New York Times it can publish editorials advocating the election or defeat of any candidate. The New York Times does this every election, using its corporate money to produce its content and distribute its views — and so can the Halli-blogger. Although The New York Times does not does not solicit money for candidates, there is nothing in campaign finance laws or any other law to stop it from doing so. Its own policies, not law, prevent this.

Similarly, the Halli-blogger can spend an unlimited amount of its money — corporate funds or any other funds — advocating the election or defeat of a candidate, and can solicit money for a candidate. It can take these two actions through prose editorials, through political cartoons, or as ABC News does, through videotaped clips.

Further, the FEC has stated that the current media exception allows a media entity to distribute its content in any manner that is consistent with industry practice. So in keeping with the practices of other media entities, the Halli- blogger can distribute its political “editorials” and political solicitations by putting them up on the website, or by email, or RSS feed, or list serv. It can also produce expensive videos that other people can use for their own purposes, such as TV commercials.

The only way to prevent the Halli-blogger from taking and spending corporate money is to prevent all media entities from having corporate shareholders or receiving corporate investments. And that is not going to happen.

I don’t want to single out Halliburton or my fellow panelist. The same media exemption is available to any union, and to any millionaire or billionaire.

George Soros or the AFL-CIO can team up with a blogger or just create their own blog. So can every well-heeled fundraiser for President George W. Bush or Senator John Kerry. As a former campaign finance lawyer, I can think of any number of ways to use the media exemption to pump big money into the system.

That is what I fear about the widely granted media exemption. Not that the old media will lose it power. They can take care of themselves. What I fear is that our fragile, very flawed system of campaign finance regulation will completely destroyed.

There are those who applaud that result. But only if you think the system cannot get any worse than it is, should you welcome a development that will gut the 98-year-old prohibition on corporate contributions in federal elections.

The FEC or the Congress can widely grant the media exception to anyone with a blog, or almost anyone, and the precedents, and the legislative history all point in that direction. Or they can preserve the prohibition on corporate money that has stood for almost a century. They cannot do both.

And that’s a pity, because they are both goals worth fighting for.

As far as the free speech thing – what about spam? You don’t mind the government trying restrict or even ban the spam, do you?

I know it may be difficult to define what “spam” is in every particular case, but nevertheless…

But if I own all the ink in the world, what’s your freedom of speech worth?

It’s not often I agree with Sebastian, but he’s absolutely right here. It’s a clear first amendment issue, and even if it weren’t, it would still be ridiculous to regulate blogs more than the traditional media. If Halliburton wants to spend millions on a blog, or thousands of blogs, they’re more than welcome to. Nobody is forced to read them, or prevented from reading other blogs by the presence of Halliburton’s blogs.

There’s been a lot of good freedom of speech commentary, so I’ll not be redundant:

1) From what I understand, the Swift Liars were not a bloggin phenomenon, but a standard covertly-funded group whose lies were pass along unquestioninly by the ‘liberal media’. Blogs served as truth-bringers there.

2) Henry: “Carol is a colleague of mine, and I’ve been getting increasingly pissed off at the abuse she’s receiving from prominent bloggers. It’s not Carol who’s the clueless embarrasment here.” Henry, I’ve seen this sort of statement before, in print and on the net. It really isn’t useful; far too many *decent* people will excuse ‘friends’ for evil, particularly if that friend moves in the same professional cicles. I’ve seen in in the media, and I’m seeing an example unfold in economics blogging.

Here are some other good bits from the piece Henry linked:

In any case, say Ms. Darr’s critics, her cautionary tales are faintly ludicrous. “If Halliburton were to start a blog,” says Adam C. Bonin, a lawyer at the Philadelphia law firm Cozen O’Connor, “then a thousand blogs could immediately respond to it, with equal voice and with equal audience.”

More important, corporations and other special interests have not demonstrated any interest in exploiting the media exemption in that fashion, says Mr. Bonin, who helped three liberal bloggers prepare testimony before the election commission last year. “Money doesn’t have the same effect on the Internet that it has in other media,” he says.

With $2-million in its pocket, a political campaign can buy up a large fraction of the available ads on local-television news during the week before an election, essentially blocking its opponents from the airwaves — or drowning them out. But on the Internet, there is no comparable scarcity of advertising space, and, at present, it is much cheaper to transmit messages. “It’s not worth it,” Mr. Bonin says. “There is nothing to be gained by exploiting this so-called loophole.””>

and

Her proposals, [her critics] say, would throw political bloggers into a thicket of red tape (and, incidentally, might force many colleges and universities to severely restrict political speech on their computer networks).

Ms. Darr replies that the vast majority of political blogs would be exempt from the policies she favors. Her only concern, she insists, is to prevent blogs from becoming conduits for large sums of money.

— end quotes

My question: Even if the vast majority of political blogs would be exempt from the policies she favors, how would this be determined? Registration with the FEC? Forms in triplicate? Six to eight weeks before you are approved to post? When you are exempt from a government regulation, that doesn’t mean you can just ignore it.

…But on the Internet, there is no comparable scarcity of advertising space…

There’s no comparable scarcity of advertising space in the physical universe either; you can place a billboard pretty much anywhere, go build it in the middle of Sahara desert. Nevertheless, advertising space in the middle of Manhattan is very expensive. And so is, I’m pretty sure, advertising on the front page of Yahoo.com or Msn.com.

Carol is a colleague of mine, and I’ve been getting increasingly pissed off at the abuse she’s receiving from prominent bloggers.

A prominent blogger using his position to try to help a prominent friend’s political career? Shouldn’t there be regulations against this sort of thing? Now I’m sure no money changed hands, but mutual favors are the relevant currency in these kinds of markets and trying to rally the liberal blogosphere around Carol Darr (or at least get them off her back) is, potentially, a huge favor — one that could make a material difference in her career. Would Henry have written this post if Carol Darr was unknown to him?

What if Henry had not disclosed the relationship? Would that have constituted an instance of ‘astroturfing’? Would his advocacy have been less ethical but more effective if he had not done so? Personally, I don’t really care one way or the other–either he makes an effective case for potentially regulating blogs or not (and I’m firmly on the side of not). I don’t really care if his motivation if personal, philosophical, or some combination of the two. BUT it was in his interest as a blogger to disclose the relationship because to have it revealed by a commenter, say, might harm both his own and Darr’s reputations. Which is why I don’t see ‘astroturfing’ as a big problem. As a candidate, you’d almost hope your opponent’s campaign would engage in astroturfing so your supporters could then catch them at it and reveal the undisclosed relationships and under-the-table payments.

“Russell – I agree that the blogs are best thought of as a commons – but the underlying point here in my view is that it isn’t an automatically self-regulating commons.”

Henry, can you have a word with John Q about commons and the Tragedy thereof? You only need to (and then must) regulate access to a commons when the demand for the use of that resource outweighs the supply of said resource.

We running out of electrons already?

Blogs’ popularity follows a power-law distribution just like the rest of the internet’s sites. Advertising space on PowerLine or DailyKos is going to be very expensive compared to advertising space on some random blogspot blog. So it could be argued the same scarcity of advertising space exists on blogs.

Excuse me if I am being dense, but isn’t the argument for some form of regulation of the intenets based on expectation of future occurences? (See below)

Is it sensible to engage in the regulation of free speech, if this is not an oxymoron, on the basis of potential outcomes?

This kind of preventative activity sounds familiar, but I cannot put my finger on what or who it was that justified some plan, that proved in the event to be misbegotten, unfounded, and ultimately self-defeating, based on some horrific possible future state of affairs. But I know it happened recently.

In the initial post:
“And if you don’t think that there are going to be John Thune style astroturf blogs galore in the ‘06 and ‘08 elections, then God bless your naivete.”

According to the Chronicle article “Her only concern, she insists, is to prevent blogs from becoming conduits for large sums of money. Various Internet-related loopholes, she believes, have the potential to gut the American framework of campaign-finance law. Before long, she fears, Web sites will facilitate the flow of ‘unlimited amounts of individual money, corporate money, union money — and, increasingly, your next horizon is going to be foreign money’.”

And “Ms. Darr’s primary concern is that the Internet not become a venue through which corporations or other special interests could bypass the general framework of campaign- finance law. She fears that, say, the Arsenic Land Mine Corporation might provide millions of dollars in unregulated soft money that would be used to produce online videos or banner ads attacking Candidate A — and that when Candidate B won the race, he would remember that he owed Arsenic Land Mine a favor.”

As has been said, no corporation will want to spend that kind of money through blogs on a candidate in expectation of future favors if what that money is buying is not worthwhile. In our current media system, that money can buy advertising. But on the internet, that money can still really only buy advertising. So how is it really that different?

“The resource is not electrons, but eyeball/minutes. Those are very scarce.”

That’s an argument that allows regulation and censorship of absolutely anything. There’s some 100,000 book titles a year in the UK no one can read them all so some should not be allowed to be published?

I refuse to give up a constitutional right because some other individual or entity is abusing it. It is infuriating to even suggest giving up a constitutional right because sometime in the future, some entity might abuse it.

“If enough money is invested in this, the blogging phenomenon as we know it has no chance”

But amateur blogging has already shown itself to be moderately successful. Are you saying that corporate blogging will be able to be hugely successful in comparison? Even if it is, amateur blogs will still have a niche and keep their current readers. They might not still have whatever political influence they now do, though. But our current blogs will probably never be as irrelevant and barren as amateur shortwave radio.

No, no licenses; the current media regulations, if I understand correctly, they only apply to commercial advertisment paid for and/or coordinated with a political campaign. If Hillary Clinton (or some NY investment company) wants to pay a bunch of liberal bloggers to promote her presidential campaign, why shouldn’t there be a limit to how much she can spend on it? I don’t see any harm.

The two sides seem to be talking past each-other, though Darr could be more clear making her case. Ginger Yellow brings out the issue in 43, what do MSN and Yahoo have to do with Blogs?

Darr’s response is that monied interests could fund a blog which, under her interpretation of the media exemption, can coordinate with a candidate. The blog could then purchase advertising, on MSN, Yahoo or any other media outlet, and engage in other activities to promote and fundraise for the candidate, effectively in coordination with the campaign.

It is not clear to me how that scenario does not apply to Fox News or The National Review, although blogs open that approach up to people with much less money. Darr does not appear to advocate regulating magazines or similar media, her concern is that the exemption will be too broad and let big money into the picture. Atrios makes the point that big money already takes advantage of the media exemption, broadening it to blogs makes it possible for small money to do the same.

If a poll tested slogan were posted on a paid board, but adopted by hundreds of individual bloggers without pay would you ban that? If Saturday Night Live came up with a particularly cutting joke would you ban people from repeating it?

Well, I guess the assumption is that if you’re not paid by the Democratic party you’ll see no reason to become an outlet of the Democratic party; you may want to say something original rather than toeing the party line. You have no incentive or at least not a direct strong incentive.

Free speech is not obtained through the limiting of speech. It is troublesome that people even consider this a valid starting point. Baised on this article and discussion, the true threat to free speech in the United States is not the right but the left. Government regulation of speech can never provide more freedom of speech.

No, nobody can be banned from writing anything. What can be banned, however, is paying very large amounts of money to blog operators to publish specific things.

“What can be banned, however, is paying very large amounts of money to blog operators to publish specific things.”

How can you do that without either having a nearly useless interpretation of “publish specific things” or hitting straight up against the media exemption since network media and mainstream publishers pay operators to publish things?

“All I’m saying is that it’s not unreasonable to suggest that the internet publications”

But what is an internet ‘publication’? Why isn’t it more like a ‘press’ that has 1st Amendment Protection? Or like ‘speech’ that has 1st Amendment Protection?

Frankly McCain-Feingold does a really crappy job of applying such concepts to regular media. As a result I’m not thrilled about it doing the same for the internet. Furthermore, so far as I can tell McCain-Feingold did just about nothing to really keep money out of campaigns. So it seems as if you are asking me to give up a cherished right for something which demonstratively doesn’t even do what it is supposed to do.

The social problem with the Swift Boat Veterans for Truth is not, as Henry claims, the blogs helped “drum up the Swift Boat controversy and make it into an issue that the mainstream media had to deal with.”

The problem with the “Swift Boat Veterans for Truth” is that: 1) they told scurillous lies slandering John Kerry, and 2) influential media outlets and several very popular TV personalities widely and uncritically discussed the TV ads and the lies contained therein. In effect John Kerry was forced to spend time and money refuting the claim that he was a traitor and fraud.

To suggest that the best way to prevent this from happening again is to regulate blogs is idiotic. To suggest that regulating blogs is a good way to prevent this is idiotic. To suggest that regulating blogs would mitigate this is idiotic. And that’s why I think, on this issue, Henry and Carol are both idiots.

If there was a problem with the Swiftboats, wasn’t there also a problem then with MoveOn and Bush’s cocaine/National Guard mudslinging?

The truth is the Swiftboats never would have had any effect if Kerry hadn’t mentioned Vietnam in every other sentence out of his mouth. Kerry was bragging about Vietnam long before the Swiftboats hit the scene and he was too stupid to shut up about Vietnam after the Swiftboats hit the scene. They are a poor example of any alleged problem as they presented one side of a story that Kerry put in the spotlight.

Furthermore, just to reiterate a few points I’ve made frequently:

1. The funding of astro-turf blogging must be disclosed by law by the campaigns, and is so disclosed, including in the Thune case. Moreover, as a general matter, if it talks like a shill and looks like a shill and reacts to bad news like a shill, most readers will realize that a blogger is a shill.

2. If General Electric, a major defense contractor, can run a television news network, I hardly see why Haliburton having a blog is a big problem.

And, finally:

3. That you didn’t like the result of the Swift Boat affair does not mean that restricting partisan speech is the answer. How about a better Democratic response next time?

Henry, you’re absolutely right that she didn’t make that point for, basically, an entire year during this debate, until the debate was over and her views lost. “Oops! I forgot to mention that” is a convenient excuse; it’s not any demonstration of a change of heart.

I’ll submit that the reason Darr forgot to make that point about the media generally previously is that during a court-ordered rule-making process to devise FEC regulations regarding political activity on the internet consistent with precedent and statute is a wholly inappropriate time to attack the existing scope of the media exemption as applied to traditional forms of media. Which brings us back to the primary point – Darr wanted regulations applied to internet speech which did not apply anywhere else in the world.

Henry, I was sitting two rows behind Darr during for her testimony. She has never walked away from the false dichotomy of “journalist” v. “activist”.

I have to agree with ginger yellow on the journalist/activist distinction. The 1st amendment is supposed to protect politcal activism. The whole history of the free speech clause is about that.

On false dichotomies, first, see our written comments to the FEC from June, p. 8-9, which cover why it’s false as a factual matter — http://www.redstate.com/documents/kos.pdf .

More importantly, as a constitutional matter, I just can’t see how you can get a government agency in the business of determining who’s too “activist” to be able to speak without restriction.

As far as self-policing goes, I’m in favor: if you’re getting paid, disclose it, and those bloggers who seem to lack authenticity will lose readers.

I just don’t want such policies to be codified in law, (a) because they’ve never applied to other media, and (b) because it’s an ugly, awful tool to give bloggers to use in filing complaints before the FEC, accusing each other of hidden payments and biases.

Henry,
Again you’re advocating for standards that don’t exist anywhere else in the universe, and have almost nothing to do with the purpose of campaign finance law. You don’t generally know who’s funding the think tank scholar who writes an op-ed for the Post. You don’t know who’s behind the funding for that NPR guest. You don’t know who the clients are of the “political consultants” that show up on CNN every day to give their opinions, except to the extent that you can look up the FEC filings of candidates and see if their names/companies pop up.

Darr was treated with scorn and contempt because her “evolving” arguments were some combination of ignorant and disingenuous, depending on how charitably one wants to view her. While her submitted testimony to the FEC wasn’t all that bad, scorn for Darr came earlier from her early submitted comments to the FEC. An excerpt:

If the statute is to survive, two principles must emerge . First, the class of bloggers entitled to be treated as “news media” — and thus exempt from most campaign finance laws — must be limited . Secondly, the FEC must make clear that bloggers cannot wear two hats simultaneously: that of journalist and that of partisan activist . Just as previous generations of offline activists at various stages in their careers assumed different roles — those of activist, journalist, even officeholder — bloggers must realize that they cannot avail themselves to the rights and privileges of journalists in any election in which they choose to participate as a partisan activist . This principle applies with even more force in situations where a blogger becomes, in effect, a paid political operative by accepting money from a candidate or political committee for advice or other consulting work . Bloggers can have it all, but not all at one time, without destroying the two campaign finance statutes or the press exemptions or both . Given the social and political changes ushered in by new communications technologies, it may already be too late for anything but a massive overhaul of the campaign finance statutes . The issue may be beyond the regulatory authority of the FEC, and the Commissioners may have to let Congress sort out this issue . If, on the other hand, the FEC believes it has the will and the authority to parse the difficult distinctions between bloggers who are journalists and those who are not, it should establish clear guidelines, so very few individual bloggers will have to incur the expense of having to file a request for an advisory opinion . At a minimum, the FEC must insist that anyone who avails him or herself of the media exception should not operate as a political activist (including raising money) in the same election.

Who cares what Carol Darr said or didn’t say.

If McCain-Feingold is a bad law, why not devise a good law for the internet – even if it’s unfair to the bloggers at the moment – and then use it at a model for all other media?..

Henry said:

“Which brings me on to ginger yellow’s point. I agree that the mainstream media are way more influential than blogs. But blogs – along with other forms of media (conservative magazines; talk radio) helped drum up the Swift Boat controversy and make it into an issue that the mainstream media had to deal with. ”

As both ginger yellow and decon have pointed out, Henry, your view of the Swift Boat Liars affair is 100% wrong. – talk radio and the explicitly right-wing press gave the initial boost; the ‘liberal media’ put it into the stratosphere, by their standard ‘he said-she said’ routine.

And in 2000, blogs were demonstrably not necessary to smear Gore with the most ridiculous lies; during the early Clinton years – pre-net – the right had quite a bit of success with their propaganda campaigns. Again, using talk radio and the right-wing press to start and maintain, with the ‘liberal media’ providing the massive support that only ‘liberal reporters’ can provide for right-wing propaganda.

If there’s a pattern here it’s:

AM radio stations, except for strictly news/traffic/weather, should be legally treated as corporate GOP donors,

Explicitly right-wing media should be legally treated as corporate GOP donors,

Anybody who uses the term ‘liberal media’, without scare quotes, should be treated as dishonest.

“They’re liable to crash the distinctions on which US electoral law relies. If you want to keep these distinctions, then you need to figure out how to distinguish blogging-as-journalism from blogging-as-activism.”

They crash them because the distinctions on which US electoral law relies insofar as free speech never made sense because they created a special class of citizens called ‘journalists’ upon whom free speech rights were bestowed and a special class of citizens called ‘non-journalists’ upon whom free speech rights were denied.

The Constitution does not make that distinction.

Her activist/journalist distinction is especially destructive to the 1st amendment because the history of that amendment suggests that political activism was the very thing the authors were most trying to protect while her scheme specifically strips away protections for political activism.

Her scheme would apparently protect free speech for talking about daytime soap operas but not protect a serious discussion about the war in Iraq.

As Barry points out in #110, a counterfactual supposition isn’t necessary. Republicans were playing the same game, with equal succuss, long before blogs were invented. If you disagree with this assertion, by all means tell us why.

Now, blogs are part of the equation. Perhaps you can spell out why exactly you thing Powerline is more influential than talk radio. Do you ever listen to Savage/Boortz/Limbaugh etc… on the radio? Do you have any idea how large their audience is? How many times an issue bubbles up from talk radio versus how many times a similar issue bubbles up from righ wing blogs? Claiming ignorance is fine, so long as it is accompanied by an equal lack of certitude…. From where I stand, you seem uninformed and unwilling to listen to those with a contrary opinion on this issue.

“With every post, it becomes clearer that the advocates of campaign regulation are not merely indifferent to the values the 1st amendment embodies, they are actively opposed to them.”

I think that’s opportunistic. “Values” are slippery for even the best of us. Some people on both sides of this argument (broadly defined–here in this thread, and elsewhere) have been, on other issues, less than perfectly devoted to “the values the 1st amendment embodies” when such devotion would have been inconvenient for one reason or another. We all fail to live up to our best ideals sometimes.

From here it looks like the problem isn’t that Carol Darr is an Enemy of Freedom, but rather that the whole apparatus of American campaign finance law is predicated on a bunch of assumptions which are, as Sebastian Holsclaw has convincingly argued, indefensible. Darr is working from inside this broken model. It is hardly surprising that her public statements have caused steam to come out of the ears of bloggers on both the left and the right, nor does it speak ill of those bloggers that they’ve been angry when they discover that their rights are being jacked around by an unelected board advised by academics whose social capital and connections they can never hope to match. Quite the contrary, it’s reassuring to see that some Americans, at least, still have the mother wit to get truculent when people talk about their free speech as if it’s a grant of the state. Or when people, even people as decent as Henry Farrell, start the conversation by pronouncing on what viewpoints will and won’t be regarded as “serious.”

I have said that this argument is making me more inclined to free-speech absolutism, not less. I don’t buy that that Carol Darr and her allies are evil opponents of liberty. What I believe–what this argument has made me believe more strongly–is that I can’t trust her class.

Henry – teachable moment? Regarding your remark elsewhere on Larry Lessig’s blog about Benkler’s book and “how these new technologies offer possibilities for the kinds of things that lefties have traditionally been interested in, without necessarily invoking the state” – perhaps my skepticism, about garden-variety blog-evangelism, is now clearer?

“A lot of what I see seems to me to be displacement activity, denial that there’s a problem there at all, or faith that it’ll mysteriously disappear. That’s what I’m complaining about.”

It seems to me that you may be confusingly mixing a lot of issues together here. I don’t have faith it will mysteriously disappear, but nor do I have faith that letting the federal government choose who may or may not speak is an appropriate solution. Darr seems to think it is. You suggest (I think) that you think it is. I don’t understand why anyone would think so considering that every single time the federal government has tried to deal with the question we have had A) greater restrictions on free speech with B) no noticeable improvement in the level of public discourse tied to the restrictions.

You seem to be asking us to keep restricting our freedom despite a decades-long track record of it not doing any good even under your own definition of good. A similar problem has happened with civil liberties and the drug war. In exchange for routine no-knock warrants, a militarization of the police, civil forfeiture, a dramatic expansion of search exceptions, and a vast expansion of criminalization of crimes against self we have been given in return–pretty much nothing. And every year we are asked to sacrifice more and more so that we can get tougher on drugs for no track record of benefits.

That might be an improvement (I believe it would be). But it doesn’t solve the problem. See War, American Civil.

Henry,
The FEC and campaign finance law exists to counter the effect of corrupting impact of money on politics (whether or not it succeeds at this in any way is a separate debate). It does not exist to stop people in engaging in dirty politics, to stop them from lying, to prevent them from slander or libel (other laws handle that), or anything else similar, to make our political debate more tidy and highminded, or anything else.

Before the internet doing any of these things and having much of an impact required money. Now, on the internet, it doesn’t.

I suspect that there is a class of hypothetical software that, in realistic present or future circumstances, could conceivably do to opinion blogging what Wikipedia has done for general reference information. That is, it would be able to harness the named or anonymous contribution of users all over the internet to produce something more comprehensive and even more accurate than you would find in any individual source of opinion, a way to separate the hack arguments from the real arguments.

I expect this software would take the form of some kind of way to abstract key points and logical arguments out of blog posts and collate them with pertinent points from other posts and from comments from those posts, and also facts from pertinent studies and data sources, while in some objective and uncontroversial way filtering out the undesirable comments and exposing the fallacious arguments, leading to a sort of dialectical reference library. But the exact nature of the software is not important.

What is important is that this software is possible, and likely inevitable. And I think it will solve the problems with authentication, i.e. keeping astroturfers at bay, and likely come to be the most trusted authority in confering legitimacy on particular blogs, by establishing who is actually reasonable and who isn’t, perhaps even lessining the importance of overbroad political labels in determining online allegiances between bloggers, etc. etc.

Because I believe this software is possible (and I have some very specific ideas on what it would look like), I strongly oppose any attempts to regulate blogs. The internet, so far, has done a really great job of self-organizing, and I expect it to continue to do so. It would be stupid to interefere with that process.

And, once one is familiar with the history of the internet, I don’t think it takes too much faith in the nature of the internet to believe that something like this could occur. See, for instance, truthmapping.com. That particular site is inadequate in many ways, but it has the seed of the idea right.

It’s very easy to argue GOVERNMENT-BAD. It’s cheap and simply point-scoring – look at this flaw, and that flaw, and it’s not perfect, and oh we don’t have utopia, bad, bad, bad.

In my view, that’s not an effective argument *for* unrestrained plutocracy.

When you bring up that you supposedly “can’t trust her class.”, I think it is fair rebuttal to counter that the Robber Baron class is not exactly trustworthy either.

More deeply, it’s not a choice between the evil we have now, and a fantasy. Rather, the corruption of Big Money should not get a pass on its evil in this debate, in terms of emphasis that it’s the other side.

[Note – this post deliberately polemical]

Whatever potential “problems” exist, I don’t see how the swift boat situation is a useful example. The Swift Vote Veterans for Truth was an organization with a paid ad campaign on regular media, unconnected to the internet in real way. Its representatives got substantial significant airing on nightly cable news.

Unfit for Command arguably had some genesis in the internets, but only as a partial collaborative research project by freepers and others. But it was, you know, published by Regnery on actual paper.

For someone who probably doesn’t want a lot of cable news (I’m guessing), the Swift Boaties must’ve seemed like an internet phenomenon, but they really weren’t. They were a Fox-MSNBC-Regnery phenomenon which also got discussion on right blogs.

luc (137): Note the statement there:

“We believe that there needs to be a “bright line” between the online political speech of big money interests, which may be subject to the campaign finance laws, and the online political speech of small and independent political speakers on the Internet which we believe should not be regulated.”

That’s your answer. The politics is that there is NO such “bright line”, and the speech of small and independent political speakers is being used as a pretext for big money interests to attack campaign finance laws.

That trumps civil-liberties groups easily. Which should be a lesson :-( !

er..swift boat, that is

#130 … the claim is merely that, for the period in question, an openly partisan press did not result in an informed citizenry. Then, as now, opportunistic politicians fostered this ignorance to disastrous ends.

That said I would much prefer an openly partisan press now because the status quo of a psuedo he said/she said infotainment objectivity favors the entrenched, corrupt, and insane Republican one party monopoly. Anything but the status quo…

What reason is there to believe that blogs that have to spend over $10k a year are a bigger part of the “problem” than blogs that don’t, and that once the law regulating the former category fails to do anything, that it won’t be extended to cover blogs that spend more than $5k a year, or indeed blogs that spend any money at all?

Campaign finance reform has serious philosophical problems, that are ignored or swept under the table as long as they only affect “someone else.” Why do you think there was a media exemption in the first place?

…. and an excellent point it is #147. What about that Ms. Darr?

Seth, re the speech of small and independent political speakers is being used as a pretext for big money interests to attack campaign finance laws, well, the reverse was even more true during this debate — the fear of big money interests was used as a reason to propose regulations which would’ve swept in small and independent speakers as well. We were always conscious of the fact that not everyone who opposed the pro-regulation folks did it for the same reasons, and that we never favored gutting the law or any form of Internet exceptionalism.

In the end, we got smart regulation that protected the new medium, and that ended it. I hope.

Luc, I can tell you that from my perspective, no one at EFF was actively involved in this. No one testified, no one took public stands, no one was involved in any of the negotiations on the Hill. They signed onto things for which John Morris at CDT was really the point person.

seth,
I applaud your faith in government, but even this liberal is not so naive. The fact is that for a period political speech on the internet was in – at least temporary – jeopardy. Fortunately good people were at the FEC and at the final bell they got it , but it wasn’t clear at the beginning of the process that the outcome would be anything approaching sensible.

With all due respect,
I am not a fan of John Kerry, but this idea that the SBV incident is his own fault is just amazing.

Either you have free democratic press or you have a tool in the power struggle between two overlords, American Barzanis and Talabanis.

You, folks, seem to be satisfied with it being a tool, fine. But then stop pretending you’re free speech martyrs.

In a free press environment obvious lies belong to a fringe and rational ideas outside Krugman-Brooks space don’t, that’s all there is to it.

Impirically this is not free press. You want it to be free? Consider government regulations, consider lie detectors, homeopathic pills, consider freakin voodoo, but don’t tell me this is what the free press looks like.

Well, Brett, you have a dogmatic definition: if there is no government interference, then the press is free. But if empirically it obviously is not free, then, quite simply, you need to re-examine your dogma.

You’re like a mechanic that looks at a car and says that the car’s all right: it has tires, engine, transmission, everything, what else do you want? But the car won’t start, it just doesn’t work. Your being certain that it’s all right doesn’t help here.

Well, why wouldn’t it go south, though? Perhaps something is wrong with the steering, those few guys who want to go north jammed it?

#149: Am I to assume you think it doesn’t matter what the 1st amendment was designed to protect? Of course it matters. And one need not make a fetish of “original intent” to recognize this.

As #19 and #31 make clear the constituion is pretty clear on this. I suppose, as #21 indicates, you are on par with the amazingly inventive constitutinal scholars employed by the Bush administration who opine that up is down.

If what’s happening now is what was intended, then it’s a piece of crap not worth the paper it’s printed on. And if what’s happening now is not what was intended but you have to comply anyway, then it’s the funniest joke of all time.

Rich: thanks. For those who haven’t had enough, I’ve opened up a diary on DailyKos to clear up some stray issues.

“But there’s a world of difference between the exact placement of a regulatory line in a very small world of professional politics (which of course matters deeply to those involved, and has other implications), and some sort of alleged broad threat supposedly affecting everyone with a blog and a political opinion.”

This isn’t true. The proposal by the FEC originally included an attempt to regulate blogs exactly like professional political consultants.

Seth, respectfully, the FEC’s first draft would’ve done precisely that as this news report summarizes: “political Web sites would be regulated by default unless they were password-protected and read by fewer than 500 people in a 30-day period. Many of those Web sites would have been required to post government-mandated notices or risk violating campaign finance laws.”

To be sure, I was always leery of the pull of Big Money on all sides of this debate, and just had to trust my gut. I think we ended up okay.

Honestly, the only people who were going after Carol Darr like that were some of DailyKos’s readers; it wasn’t a high-level affair by any means. And I’m not sure who you’re referring to with “the overwhelming opinion of academics and disinterested lawyers”; there was a real threat, and statements like Darr’s demanding artificial distinctions between “journalists” and “activists” were unhelpful.

I’d also note that not once during the whole debate did anyone from the pro-regulation side contact me or my clients to ask “what are you guys doing, and how can we make sure to protect you?” or anything like that. They were the only people active in this whole thing who didn’t. Indeed, at a May 2005 conference that IPDI sponsored, Ms. Darr made it sound like listservs were the real threat. They didn’t get the technology, and they never tried to.

What I found really helpful later on were the comments from Marc Elias, who was the chief counsel for the Kerry-Edwards campaign (and neither a consultant nor an anti-CFR think-tanker), and this is from his opening statement to the Commission:

[W]ith all due respect, this is a rulemaking in search of a problem. I can give you a litany of problems that I experienced through the campaign finance laws as the general counsel to the Kerry campaign. We had problems with the rules regarding travel, the rules regarding coordination, the rules regarding soft money, the rules regarding appearing and attending at state party events, the rules regarding agency. In fact, if you opened up 11 CFR, we could literally start at page 1 and end several hundred pages later with all of the issues we faced. We never faced a problem with the Internet. It just wasn’t a problem. I’m not suggesting that in 10 years, there may not be a problem with Halliburton starting a blog or setting up some complicated Web scheme, but if that happened, this Commission would still be around. Congress would still be around. And at that point, Congress or the Commission would be in a position to address legislatively or by rulemaking the exact problem, the actual problem that is appearing rather than at this point the Commission guessing as to what, in two years or three years or five years or 10 years what problem may come to the forefront.

A lot has been said about the democratizing effect of the Internet, and I won’t rehash that. You’ve heard that from others; you’ve read it in our comments. The Kerry campaign relied to an unprecedented degree on using the Internet as an organizing tool, both financially as well as an unprecedented number of volunteers who came to the campaign through the Internet. And one of my concerns with the course that the Commission seems to be heading down is that any time you regulate, whether you regulate a lot, or you regulate a little, you send a message to the community that there are now traps to be avoided. If you define bloggers as in the media exemption or out of the media exemption, by applying regulations to the Internet, individuals, ordinary folks out there reading the newspaper, that there is now regulation of the Internet, and it makes them that much less likely to get involved.

You can read the FEC draft yourself and determine what they intended. I can also point you towards the reform community’s comments on the FiredUp advisory opinion for more on how they viewed partisan websites.

From this process and the comments, it is apparent that government restriction on speech ends up as an overall. We have been focusing on the unbalancing effects of wealth on speech. The obvious idea being that the voice of the wealthy can drown out the voice of the masses. The problem is that Fame can also be used to drown out the voice of the masses. Numbers can be used to drown out the voice of the minorities. People who are charismatic, attractive or good public speakers will naturally have an advantage over those who are not. Continuation of this idea eventually reaches the point where the State purposefully limits the rights of the majority of individuals in order to create some false system of equality in speech. (Example: application of speech rules on US College compasses.) The system of government in the US is predicated on equality under the law. It is not predicated on equality of means, abilities, or numbers.

“You don’t generally know who’s funding the think tank scholar who writes an op-ed for the Post. ”

I’m still not clear on the main issue, but I thought I’d comment on this point.

It’s generally accepted that for such scholars to be directly funded by private interests without disclosure is a breach of ethics – Milloy, Fumento and Bandow all lost their jobs over this.

The funding of the thinktanks themselves can be a little murky, but there’s information on most of them.

John: Same as blogs — ethically, people ought to disclose such conflicts or confluences of interest. But it’s not required by law.

As I’ve written elsewhere, here’s my fear: Suppose I supported KANG in the 2008 primaries, and suppose a pro-KODOS blogger decided that I couldn’t possibly have taken such noxious preferences honestly. So he puts together all the posts he can showing what he thinks is my lack of objectivity, and he sends it to the FEC to have them investigate whether I’m getting paid under the table.

If they believe there’s any merit to the claim, they will start to investigate — subpoena my email archives, bank records and telephone records; call me in for a deposition, etc.

It’s an awful tool to give bloggers and their readers to use against each other.

I think the key point is that we don’t trust the Bush administration to handle blog regulation fairly. And that if our approval of the plan is so dependent on who’s got the power to administer it, then we’re not rushing into it just yet. That is a power that the state does not yet have – therefore it remains with the people. We shouldn’t give it back just yet, and certainly not because of any hysterical scaremongering. There has been some of that – perhaps we are punch-drunk by now.

It sounds like your friend has a good point about abuse of an anonymous or misleading public persona. I don’t agree that, in order to deal with it now, we need to push our congress to pass a bill that comes to them in the dead of night and has only been read thoroughly by its barely masked sponsors. For example – have you heard about the reconstruction of New Orleans? (The road to hell actually is paved with good intentions! Actual fact!)

Corduroy,

I’d highly encourage you to get a basic understanding of both the regulatory process and the background on the players involved before you wade into this debate.

Henry, re Update #2: Thanks. Let this go another day, and you might finally admit that regardless of what was said about and to her about this, Carol Darr was just plain wrong on the merits.