Crooked Timber

Sebastian – the claim that political free speech is best supported in an environment of no regulation does indeed have many proponents, especially among libertarians and conservatives. But the claim that free speech requires some degree of regulation has considerable arguments in its favour too. I think that there is a real risk that the valuable aspects of the political blogosphere are likely to be corroded by massive use of astroturfing. And to make it clear – I don’t at all think that astroturfing is going to be confined to the right over the forthcoming election cycles.

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.

Derek, Ginger Yellow, on the questions of dishonesty (Derek) and treating blogs more favourably than mainstream media, see comment 13 above, and the main body of the post which I’ve updated, as this misunderstanding has recurred several times.

Patrick – I’m not sure what the claim underlying your sarcasm is. Are you saying that there should be no regulation of media on principle? It’s a legitimate point of view, but one that, in my opinion, would likely lead to Berlusconi style democracy.

I’m typing on a mobile device, so can’t be prolix. But I’m quite convinced that there’s a real problem here. Continually harping on the hypocrisy of established media is well and good. I do it myself when asked questions by journalists (did it the week before last on Seattle public radio). But it doesn’t change the fact that Thune’s bought and paid for astroturf blogs helped swing the race in South Dakota. Nor that next election we’re likely to see a proliferation of similar efforts this year. I’m particularly worried by some of Sebastian’s former colleagues at Red State (nb that this emphatically isn’t a dig at Sebastian – I suspect that some of the disagreements surrounding Red State’s reformulation focused on just these issues).

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?

steve – your comment is as boneheadedly stupid as it is offensive. Carol isn’t a regulator (hasn’t been one for twenty odd years if I’m correct). I don’t know any regulators – don’t meet ‘em. I’m a different kind of political scientist. The only active political types who I’ve met since I came to DC are the guys in Media Matters (who, if they read this, are likely to be pissed off). This is in contrast, say to the Red State blog, which has a former FEC commissioner among its contributors.

asg – you pull a bunch of quotes from people who disagree with Carol, but you don’t mention that there are election reform groups who agree with her. Funny that.

slocum – Carol is a colleague whom I know well enough to have talked about these issues, but I wouldn’t say that I know her well enough to be a friend. And in any event, if I was to push for regulation myself (which I am of two minds about; see below) it would probably be along the lines of disclosure of interests (I believe that I have disclosed my interests in this instance). Carol isn’t a member of my department; she isn’t likely to have any influence on my tenure decision. We talked at one stage about doing some joint work on the political consequences of blogs, but at this stage it doesn’t look as if that is likely to go forward. There aren’t any favours being done here or likely to be returned; I’m highly doubtful that she’s aware this conversation is taking place (I don’t believe that she reads Crooked Timber – not political enough for her).

Turning to the more serious comments …

passim : what is at issue here is not the banning of free speech on the internets. It’s whether or not bloggers should be allowed to coordinate directly with political candidates.

barry – I’m an unwitting apologist for evil???? Isn’t that a bit of an over-reaction??? Common Cause has more or less the same concerns as Carol does – are they evil too?

quo vadis says

Influential blogs are influential because they are popular, not because they may be well funded, well connected, or well regarded in the right circles.

I don’t think this is true. I would like it to be true, and I hope that it comes true – at least assuming that the problems that I talk about are manageable. But their primary influence at the moment is indirect rather than direct – by shaping the way in which elite actors such as journalists view others. Blogs on their own just aren’t that politically powerful.

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. Read the (admittedly rather self-congratulatory) piece in the Weekly Standard that I link to in the post. And contra Sebastian, I don’t think that blogs are the answer to Swift-Boating – a group of prominent right wing blogs were demonstrably part of the problem.

ginger yellow has another interesting point – that if we have a trade-off there’s no reason why we should decide to adopt Carol’s perspective, rather than deciding to live with more money in politics. I’m in agreement with this – what I’m trying to do here is less to say that Carol is right than that she’s making a legitimate set of arguments that should be responded to as such. That someone argues for the regulation of links between money and blogging doesn’t mean that they’re a limb of Satan. It means that they disagree with the dominant opinion among bloggers and blog readers. If there was a proper argument happening, rather than a persistent campaign of personal vilification, I’d not have written this post.

tim worstall – I’m quite familiar with commons type problems and their solutions. Indeed, my thinking on this is specifically guided by work on these issues (specifically, Elinor Ostrom’s Governing the Commons ). Lin makes a strong case that commons type solutions can work – but only so long as there are appropriate rules governing the relevant resources (and in particular, that boundary rules determining who can participate, and who can’t are important). And yes, the scarce resource here is attention. In principle this does mean that anything could be regulated. But principle doesn’t equate to practice. Acknowledging that there’s a problem doesn’t mean that you’re necessarily committed to one way of solving that problem, whether state regulation or anything else. For an overview of Lin’s ideas see here.

james – take a look at Berlusconi’s Italy before you make any very general arguments about regulation of free speech never being good. The relationship between free speech and power is a complicated one.

kcindc – I suspect you may be right – but as already noted, I’m not trying to make the positive case for regulation of blogging as the preferred solution here- I’m saying (a) that the claim that regulation may help promote free speech is not an inherently ridiculous or vile one, and that there are specific problems in the blogosphere – viz. that it’s openness of access means that it is particularly vulnerable to astroturfing. In short – I’m not saying that Carol is right – I’m saying that she’s making a legitimate argument, and deserves a hearing. My personal take on this is that regulation of the sort that Carol proposes is unlikely to work. On the other hand, I’m of two minds about some sort of disclosure requirement – on the one hand, it could prevent a lot of future abuse; on the other hand, I value the contribution of many anonymous bloggers, and indeed have gone to bat on their rights to stay anonymous. In the best of possible worlds, I’d like to see some more active sense of self-regulation among political bloggers, but I don’t see any acknowledgement that this is even a problem. Instead, I see sarcastic references to “bloggers’ ethics panels” every time that some mainstream journalist does something bad. That mainstream journalists are hypocritical on these issues is undoubtedly true – but bloggers face their own problems – or rather, don’t face their own problems, by persistently changing the subject to all the nasty stuff that other folks in the media do, whenever the question arises.

“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.

and ginger yellow – to make something else clear (I hope you understand this already), I’m not writing this because of any fear of “letting the little people do what the big people already do.” Far from it; that’s what I like about the blogosphere. I’m writing it because I’m worried about whether or not the status quo is sustainable, let alone expandable, without a lot more attention being paid to the potential vulnerabilities of the blogosphere and how they can best be shored up. I do recognize that a lot of hostility to blogs, esp. from journalists and types like that Forbes editorialist, are motivated precisely by the fears that you identify though.

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?

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.

Carol actually uses that example to argue that it is a problem both for General Electric to be able to run NBC and for Halliburton to have a blog. See the David Glenn article linked in the main post.

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.

Again, you’re agreeing with Carol and missing the point – to repeat what she is saying, “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.” And trust me – she’s not especially impressed by the power of journalistic codes of ethics here. Carol’s argument is exactly that the media exemption is incredibly broad, which she doesn’t like. You’re surely at liberty to disagree with her here (I’m not at all sure that I agree with her myself) – but her criticisms extend way beyond the problems of blogs. Ergo – the accusations of hypocrisy etc that have been flying around in the blogosphere fly wide of the mark.

And as for the claims that she’s disingenuously covering up a change of heart – if you read what she’s said in testimony – cf comment 28 above, it’s perfectly clear that her concern is with the media exemption.

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.

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.

OK - this is fair. But what’s not fair imo is the personal attacks on Darr for making this argument. It isn’t a self-evidently hackish argument – it may very well be wrong – but it doesn’t merit the level of vitriol that she’s gotten. Carol Darr isn’t Michelle Malkin or anything like her. And I think it is a problem that political bloggers are going to have to face, if the coinage they have to offer isn’t going to be devalued. I suspect some degree of self-regulation is going to have to come in to play. Which doesn’t make me happy – I like the spontaneity of the blogosphere. But I also like knowing that when I’m dealing with arguments from hacks, they’re not usually bought-and-paid-for hacks – and I don’t know whether this is going to be true in the same way a couple of years from now. If the blogosphere is going to do what we hope it might do – make it easier for ordinary citizens to get engaged in politics, debate etc, I think it’s going to have to engage in self-policing. If there’s one lesson we’ve learned from email spam, Usenet, trackback spam etc it’s that completely open systems w/o authentication mechanisms are wide open to abuse that can over time lead to their complete degeneration.

Where in the constitution does it say Congress shall make no law abridging the freedom of speech, or of the press, except with regard to political activism? Isn’t that, in fact, directly contradictory to the spirit and indeed the letter of the first amendment?

perhaps – but it appears to have passed Supreme Court review. I’m willing to listen to arguments that this is in fact a bad distinction – but there are clear trade-offs here.

the false dichotomy of “journalist” v. “activist”.

I’m willing to hear arguments about why this is a false dichotomy – but this seems to me to be a somewhat different issue. Seems to me that the boundaries between journalists and activists are murky, but that the two activities are different in principle. But then, I could be wrong – Max Weber (who was as good a social scientist as you can get) defines journalists precisely as a kind of politician. And I’m neither a journalist nor a political activist – I’m a pontificating academic.

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.

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