Fear and loathing in the blogosphere

by Henry on April 18, 2006

David Glenn has an article in the Chronicle about Carol Darr, and the howls of outrage she provokes among both left wing and right wing bloggers.

There is not much love lost between the liberal activists who blog at Daily Kos and their conservative counterparts at RedState.org. One entry at Daily Kos last month was titled “RedState Runs From Their Own Idiocy.” The same week, a commenter at RedState wrote, “I don’t visit Kos, because I am not enamored with wading through sewage.” Last spring, however, the two blogs found a common enemy: a “clueless embarrassment” (in the words of Daily Kos) who was peddling a “cheesecloth-flimsy” argument (RedState). The object of their ire was Carol C. Darr, director of the Institute for Politics, Democracy, and the Internet, which is affiliated with George Washington University. Someone in her position, the bloggers believed, ought to be an enthusiastic defender of online politicking in all its forms. Instead she was urging the Federal Election Commission — where she had worked as a staff lawyer in the 1970s — to bring certain kinds of blogging under the umbrella of campaign-finance law.

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. Take, as Exhibit One, this post by Adam B at Daily Kos, which Duncan Black approvingly linked to last week. For Adam B and Duncan, the argument that blogs are going to make Swiftboating easier is a version of “the Commies sap and impurify all of our precious bodily fluids, [and] they’re going to take over our blogs.” Come off it. I don’t seriously believe that Duncan wasn’t paying attention to the ways in which right wing blogs served as amplifiers for the original Swiftboating exercise (a feat afterwards celebrated in the Weekly Standard). 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. Carol’s making a legitimate argument which is highly uncomfortable for bloggers – that blogs, 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 blogosphere.

Update: I’ve received several comments along the lines of “you are being dishonest because Atrios is attacking hypocrites who say that bloggers should be regulated but not the mainstream press.” This doesn’t fly, since that has never been Carol’s position; in the piece linked to above, she makes that explicit. If someone can find a public statement where she says something different, I’ll happily eat crow. I’ve also changed the above link as the old link had stopped working.

Update 2: See here for a transcript of Carol Darr’s symposium at the Chronicle and here and here for responses from Atrios and Adam Bonin respectively. I should also say at this point that my original post was much snarkier than it should have been – while I stand by the basic claim that Carol Darr doesn’t deserve some of the nasty things that have been said about her – I used more intemperate language than I should have. For which, apologies.

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04.20.06 at 10:41 am

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1

Sebastian Holsclaw 04.18.06 at 9:21 pm

“Carol’s making a legitimate argument which is highly uncomfortable for bloggers – that blogs, as they exist today, are wide open to abuse, and specifically to becoming channels for systematically spreading disinformation.”

It is a deeply anti-free speech argument. That is why she gets lots of abuse.

2

Henry 04.18.06 at 9:51 pm

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.

3

Sebastian Holsclaw 04.18.06 at 10:00 pm

“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.”

Political discourse may or may not be best served by regulation of free speech (I personally doubt it) but free speech is definitely not advanced by restricting speech. 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.

4

almostinfamous 04.18.06 at 10:10 pm

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?

5

Tom Geraghty 04.18.06 at 10:10 pm

The attack on Atrios is a cheap shot. He fully understands the potential abuses. His argument is that there are plenty of sources of political disinformation already out there – right-wing talk radio, the Wall Street Journal op-ed page, etc., that are not regulated at all. What’s the rush to put limits on internet speech that these other media aren’t subjected to?

6

Sebastian Holsclaw 04.18.06 at 10:23 pm

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.

7

MQ 04.18.06 at 10:25 pm

What is it supposed to mean for “blogs to be wide open to abuse”? They are a free resource, open to all. The justification for regulation of speech has to do with economies of scale and natural monopolies in getting access to the means of disseminating speech, which leads to unfair advantages based on wealth and money. The technology of blogs means that these do not exist.

Honestly, I am as liberal as they come, but Darr appears to me to be the worst sort of paternalistic do-gooder. Regulating blogs would increase her professional opportunities to run chin-stroking conferences at the “Institute for Politics, Democracy, and the Internet”, but it damages free speech for no good reason. I’ll take the version of “politics, democracy, and the internet” that’s open 24/7 for free on sites like Daily Kos, not the grant-funded academic entrepreneur kind housed at GW.

8

Tom Ames 04.18.06 at 10:26 pm

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.

9

MQ 04.18.06 at 10:27 pm

“If it isn’t covered by the 1st Amendment pretty much nothing is.”

Hear, hear. I really enjoy the 1% of threads where I can actually agree with Sebastian on something.

10

Michael Connolly 04.18.06 at 10:27 pm

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.

11

washerdreyer 04.18.06 at 10:30 pm

I think, but am not sure, that the fact that the Wall Street Journal editorial board endorses candidates and Kos or Atrios endorse them, suggest that it would be a good idea to donate to them, and provide the ability to do so is the key difference. This may seem silly, but if this distinction isn’t maintained it creates (yet another) gian work around to BCRA.

12

Govt Skeptic 04.18.06 at 10:30 pm

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.

13

Henry 04.18.06 at 10:31 pm

Tom Geraghty, Tom Ames, Michael – you’re misunderstanding Carol’s argument here. It’s not that blogs should be uniquely singled out for regulation – it’s that the media exemption more generally creates a major loophole for abuse. Tom Ames – if you can point to the place where Carol makes a claim along the lines of

bq. 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.

or anything that even faintly resembles this, I’d like to see it. She says in the _Chronicle_ that she should have made it clearer that this wasn’t her position at the time – but I can tell you that it wasn’t her position at the time.

14

Russell L. Carter 04.18.06 at 10:34 pm

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?

15

Russell L. Carter 04.18.06 at 10:35 pm

Harry->Henry. Apologies.

16

Sebastian Holsclaw 04.18.06 at 10:36 pm

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.

17

Henry 04.18.06 at 10:40 pm

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. Your question – who’s going to read Thune type blogs if they do come out? The answer is as with the original Thune blogs – newspaper journalists and editors. You’re assuming that blog consumers are going to be sophisticated enough to distinguish the real deal from the astroturf efforts. That’s a heroic assumption, if the experience of consumer groups (something I’ve done research on) is anything to go by. The genuine ones which represent real consumer interests find it incredibly difficult to distinguish themselves from the astroturf groups that consist of a fax machine in some lobbyist’s office. Politicians can’t tell the one from the other, and frequently end up ignoring both. I don’t see why blogs are likely to have a different experience. Off to bed – will try to respond to future posts tomorrow.

18

Russell L. Carter 04.18.06 at 10:43 pm

“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.

19

Sebastian Holsclaw 04.18.06 at 10:50 pm

Henry, I think the problem is that you are analyzing this as a policy issue instead of a Constitutional issue. In a US with no Constitution you might have a point. I am deeply skeptical about the correctness of that point. I am deeply skeptical that government regulation would improve political discourse. I think that government regulators would quickly enforce incumbent bias even more than they already do.

But as a Constitutional issue this should be a slam dunk. Whether or not you analyze it under a “free speech” or “free press” rubric, political blogs are exactly the kind of thing that Congress is to make no law about. The policy choice has been made. If you want to change it you have to be advocating an amendment, not some Congressional silliness.

20

Sebastian Holsclaw 04.18.06 at 10:54 pm

“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.

21

Russell L. Carter 04.18.06 at 10:55 pm

“You’re assuming that blog consumers are going to be sophisticated enough to distinguish the real deal from the astroturf efforts.”

Henry, this is a reputation problem. I don’t know how to solve it either, but it will the be the central issue of information dissemination in the decades to come. You can recast the sources as a guild, or as a professional society. Either way loses the spontaneity that makes Duncan Black (for instance) so compelling.

“But as a Constitutional issue this should be a slam dunk.”

No, Sebastian, it’s not. Why these days, the Constitution supports all sorts of things that people never would have guessed it would. Like warrantless searches, amazingly.

22

Patrick Nielsen Hayden 04.18.06 at 11:06 pm

“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.”

23

john m. 04.19.06 at 12:19 am

As it is much more fun to post before getting the background on this here are my unthoughtout thoughts

“…to bring certain kinds of blogging under the umbrella of campaign-finance law” (my italics)

Freedom of speech and the freedom to spend as much money as you can in order to get elected are not the same thing. If you actively seek to obscure the source of those funds such that a deliberately political message is presented as independent opinion you are undermining the prinicple of free speech by your cynicism. So to say you can publish what you wish, when you wish, but in certain instances must declare the funding or origination of that information cannot be fairly described as a restriction of free speech – any more than the libel laws which allow you publish but also make you responsible for the veracity of that information.

24

Tom Ames 04.19.06 at 12:45 am

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?)

25

lalala 04.19.06 at 1:42 am

I am told by someone who has studied corporate PACs and campaign finance that the fundamental thing that many liberalish people miss about campaign finance reform is that increasing regulation doesn’t work. It just doesn’t. The extremely wealthy and powerful can always find a way around regulation, so that a new regulation is effective for at most one campaign cycle. What really scares heads of corporate PACs and the like is public financing of elections. 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.

Maybe Carol Darr knows exactly what she’s doing. But it seems to me, based on what I’ve read of her positions, that what she supports would be ineffectual at best and at worst would harm those acting in good faith but not those acting in bad. That it’s a classic liberal approach when what’s called for is something more radical. So either she knows what she’s doing and she’s doing something I disagree with, or she’s being naive about the effects of what she proposes. I’m sure that if you know her, the personal abuse is frustrating, but I do find her position quite infuriating.

26

abb1 04.19.06 at 3:46 am

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?

27

derek 04.19.06 at 4:10 am

Defending your friend does you credit. Doing so dishonestly does not. The point Atrios and others are making, that you misrepresent, is not that blogs are immune from abuse, but that other media are not immune either. So if other media may be taken hold of and used for political propaganda by wealthy partisans (*coff coff* FOX News, CNN, New York Times, Washington Post), why should blogs be singled out for legal restrictions that other media are not subject to?

Darr’s argument is one for protectionism of the traditional media outlets from a new competitor, not a useful contribution to the debate about the depths to which political discourse has sunk in the post-Scaife world.

28

Seth Finkelstein 04.19.06 at 4:51 am

[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.

29

abb1 04.19.06 at 5:22 am

Exactly. She is making an excellent point with her “Halli-blogger”. Not to mention that the Halliburton probably has enough money to create as many Halli-bloggers as necessary to cover the first 10 pages of everyone of your google search results.

30

abb1 04.19.06 at 5:29 am

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…

31

Brett Bellmore 04.19.06 at 5:39 am

“Freedom of speech and the freedom to spend as much money as you can in order to get elected are not the same thing.”

Where the money is spent on publishing and speaking, it IS the same thing. The purpose of these regulations isn’t to restrict money, it’s to restrict the speech the money enables. The simple fact that ink doesn’t fall free from the sky doesn’t entitle the government to regulate the content of newspapers in the face of a flat constitutional prohibition against legislating on this subject, and the same is true of bandwidth.

Campaign “finance” regulation is a dagger aimed at the heart of the 1st amendment. After the BCRA decision, it’s too late to ask that it not be plunged into that heart, but let’s not give it that final twist.

32

abb1 04.19.06 at 5:44 am

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

33

Quo Vadis 04.19.06 at 6:10 am

Henry: “You’re assuming that blog consumers are going to be sophisticated enough to distinguish the real deal from the astroturf efforts.”

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

2) Popular blogs are popular because they present news and commentary that conforms to the beliefs and values of a large audience, not because they have preferential access to the media channels.

3) If we’re really going to do this democracy thing, we’re going to have to trust the rabble to do some thinking for themselves.

34

Ginger Yellow 04.19.06 at 6:19 am

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.

35

Ginger Yellow 04.19.06 at 6:23 am

Also, isn’t it the height of absurdity to worry more about the possible corrosive effects of Halli-blogging than the already existent and extremely evident corrosive effects of having ex-Halliburton CEO and ongoing compensation receiver Dick Cheney running the country with minimal oversight?

36

Barry 04.19.06 at 6:35 am

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.

37

abb1 04.19.06 at 6:57 am

2) Popular blogs are popular because they present news and commentary that conforms to the beliefs and values of a large audience…

On this particular planet where I live media stuff becomes popular because it gets advertised a lot, not because it presents something. Same is going to happen with the blogs if it hasn’t happened yet.

38

Henry 04.19.06 at 7:18 am

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).

39

Steve 04.19.06 at 8:21 am

Henry’s argument only makes sense when you realized that the regulators of internet speech include people like Carol, a ‘colleague’ of his. In other words, if you’re buddies with the regulators, you have nothing to fear from regulation.

Steve

40

asg 04.19.06 at 8:28 am

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.

41

Ginger Yellow 04.19.06 at 8:39 am

Henry, I accept that Carol doesn’t seem to advocate granting traditional media an exemption that the blogs wouldn’t have, but I don’t see what she is advocating.

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.

So if she is correct, which must fall, the media/blogger exemption, or the corporate money ban? And if the latter, why? After all, there’s nothing stopping a company/corporate interest group from setting up a newspaper or TV station and doing campaign related work – many would argue that Fox does it already for Rupert Murdoch’s interests. If so, why is blogging such a unique threat to the “fragile, very flawed system of campaign finance regulation” she wants to protect so much? And finally, is that system really worth protecting? Can anyone really argue that America doesn’t have the most screwed up campaign finance system in the free world?

42

abb1 04.19.06 at 8:47 am

…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.

43

Ginger Yellow 04.19.06 at 8:57 am

What has MSN.com or Yahoo.com got to do with blogs?

44

Slocum 04.19.06 at 9:01 am

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.

45

abb1 04.19.06 at 9:06 am

Advertisement. I’ll advertise my Halli-blog on msn.com with ‘cool pics’ n’ stuff and you advertise your Ginger-Yellow-blog on the CT blogroll. And at the end of the days we’ll see whose story gets more play.

46

Tim Worstall 04.19.06 at 9:07 am

“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?

47

Ginger Yellow 04.19.06 at 9:09 am

But nobody will read Halli-blog unless it’s interesting, no matter where it’s advertised. That’s the point, and that’s why nobody has cared in the past about the equally present (but more bandwidth exposed) danger of Halliburton buying a TV station and pumping out pro-Cheney propaganda. And if it they have interesting things to say, why should their first amendment rights to say them be restricted?

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pdf23ds 04.19.06 at 9:14 am

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.

49

pdf23ds 04.19.06 at 9:16 am

Tim Worstall,

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

50

tom bach 04.19.06 at 9:20 am

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.”

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pdf23ds 04.19.06 at 9:21 am

“But nobody will read Halli-blog unless it’s interesting, no matter where it’s advertised. That’s the point, and that’s why nobody has cared in the past about the equally present (but more bandwidth exposed) danger of Halliburton buying a TV station and pumping out pro-Cheney propaganda.”

That’s because the established media system works on an extremely hierarchical and reputation based system. It’s gameable, but not nearly as much as the internet is. We don’t necessarily need government regulation for blogs (in fact, I’m opposed to it) but we do need an internal system to filter out the astroturf. Some might argue that we already have that, with blogrolls. But are blogrolls enough?

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pdf23ds 04.19.06 at 9:27 am

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?

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Ginger Yellow 04.19.06 at 9:31 am

They’re already gaming the media far more effectively than could be achieved with any blog. How many people read even the most popular blogs? Less than a million. How many people saw a month’s worth of Swiftboating on the traditional media? Hundreds of millions.

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Tim Worstall 04.19.06 at 9:40 am

“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?

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pdf23ds 04.19.06 at 9:48 am

I think the argument for free speech is that people’s attention is one commons that can’t feasibly be protected without violating personal autonomy and all sorts of other ill effects. It’s an argument I agree with.

Actually, the tragedy of the commons still isn’t relevant, because people’s attention isn’t something that “runs out” over time. It’s more of a bandwidth thing that a resource thing, and the tragedy only really applies with it’s a resource thing.

My, I’m feeling eloquent today.

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james 04.19.06 at 9:53 am

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.

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abb1 04.19.06 at 10:05 am

But nobody will read Halli-blog unless it’s interesting, no matter where it’s advertised.

But the Swiftboat story was interesting. The Clinton-Monica story was interesting. Fox News is interesting, I know my parents watch it all the time, prefer it to any other news chanel; it’s very entertaining.

If enough money is invested in this, the blogging phenomenon as we know it has no chance, it’ll become something like amateure shortwave radio.

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pdf23ds 04.19.06 at 10:16 am

“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.

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KCinDC 04.19.06 at 10:20 am

abb1, regulation could actually make things worse, though. If there are onerous legal requirements for running a political website, then it’s effectively a requirement for a license that only powerful organizations with lawyers can get. As with radio, the amateurs won’t be able to get licenses and will go away.

I have similar fears about future regulations or technological “solutions” to ensure that sites are certified to be who they say they are and free of viruses, phishing software, or other abusive content (not to mention child porn).

That’s not to say that I think astroturfing and swiftboating aren’t a problems, just that I don’t know what to do about them.

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abb1 04.19.06 at 10:31 am

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.

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Sebastian Holsclaw 04.19.06 at 10:49 am

“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.”

Because that isn’t the only way speech is going to come out during a campaign. Let’s say we restrict her ability to pay a bunch of bloggers to promote her presidential campaign. What happens next? People that like her pay to promote her presidential campaign and now she can’t even be held accountable for it. What if we restrict that by (to take a non-hypothetical) banning such ads by private parties during a certain time before the election date? Then people pay for negative ads against her opponent. What if we ban that? Then people pay for issue ads which push one way or another. And if you try to ban those, you are banning a huge swath of political speech.

None of this is hypothetical, this is either what is currently in place or what campaign finance reformers are advocating right now.

Also if you try to regulate blogs you are going to get in to a huge mess about what counts as a “contribution” to a candidate.

It seems that people like Darr and Farrell are learning strange lessons from the Swiftboat episode. It was an advertising campaign (in the traditional media) that had its claims exhaustively gone over by both sides of the blogosphere. If there was a problem with the scenario it wasn’t in the blogosphere but rather in the traditional media. The blogosphere reacted as we want it to–it went over the claims in a depth that never would have happened in 1976 or 1980 or 1984 or 1992 or 1996.

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tib 04.19.06 at 10:51 am

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.

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abb1 04.19.06 at 11:16 am

Sebastian, I agree that the currect system of campaign advertisment is extremely flawed, but it doesn’t necessarily follow that the internet has to be exempt. Like Tib said above: at least we can prevent (well, we can hope to prevent) a full-blown coordinated totalitarian-style campaign with identical poll-tested slogans, images, talking points, etc. That’s something.

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Sebastian Holsclaw 04.19.06 at 11:32 am

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?

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Brett Bellmore 04.19.06 at 11:41 am

“a full-blown coordinated totalitarian-style campaign with identical poll-tested slogans, images, talking points, etc.”

Gee, I thought totalitarians got their way by shooting people, not by PR campaigns in an unregulated media. In fact, I thought one of the key characteristics of totalitarians was that they DID insist on regulating the media!

This is one of those fundamental disagreements that goes to the very heart of democracy and self-government. The people who want to regulate political speech, (And the money was never anything but a handle to get control over the speech.) simply do not trust a free people to govern themselves. THEY are the aspiring totalitarians, who beleive that the only way “democracy” can work properly, (Produce the outcomes THEY want, I suppose.) is if the information people are exposed to is tightly controlled, so that the public is led by the nose to arrive at predetermined outcomes.

If we’re going to have a democracy, we have to trust the public, and if we’re not going to trust them, we should stop pretending to be a democracy.

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abb1 04.19.06 at 11:42 am

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.

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abb1 04.19.06 at 11:48 am

Brett, don’t you think that injecting billions of dollars into the media on behalf of one political entity (or even two entities) is also a way of regulating the media? How can this not be obvious?

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james 04.19.06 at 11:49 am

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.

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Sebastian Holsclaw 04.19.06 at 11:52 am

“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”

Where does that assumption come from? Traditional campaigns rely on volunteers for all sorts of support. Opinion editors have the appearance of volunteering opinions which are very similar to various party lines all the time. Some Crooked Timber writers promote universal health care, should they be banned from doing so because it offers ‘support’ for Clinton? Crooked Timber writers aren’t fond of Bush. Should they have been banned from writing bad things about Bush in 2004 if these bad things also appear on a Democratic Party sponsored website? If a Democratic Party site attacked Bush’s National Guard record in 2004 should that have stopped Kevin Drum from writing about it? Should it have stopped Dan Rather from talking about it?

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abb1 04.19.06 at 12:03 pm

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.

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abb1 04.19.06 at 12:05 pm

Just like you can vote for anyone you want, but I can’t pay you to vote for me.

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Sebastian Holsclaw 04.19.06 at 12:11 pm

“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?

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abb1 04.19.06 at 12:38 pm

What are you talking about? All I’m saying is that it’s not unreasonable to suggest that the internet publications should be subjected to McCain-Feingold and other existing restrictions. Somehow in that law they do manage to define those specific things that are restricted.

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Henry 04.19.06 at 12:45 pm

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

bq. 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”:http://www.cipec.org/research/institutional_analysis/w98-24.pdf.

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.

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decon 04.19.06 at 12:46 pm

When Darr gets her way, will this post count as an in-kind contribution to the “Friends of Carol Darr” campaign? What about the comments? Do we have to add and subtract value based on the pro and con comments? Good thing we here are well versed in utility calculations. And horrors — a newspaper editor might read this, and be unable to tell it’s an astro turf campaign rolled out by Carol’s friend Henry? By reading it I’m an accessory after the fact? And in commenting I make a contribution?

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Sebastian Holsclaw 04.19.06 at 12:47 pm

“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.

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Ginger Yellow 04.19.06 at 12:47 pm

tib:

“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. “

Precisely. It seems to me that this obsession with the threat of blogs, from politicians and the traditional media, is all about the fear of letting the little people do what the big people already do, or to be more generous in Darr’s case, exposing how corrupt the status quo is.

Abb1: are coordinated talking points so scary that it’s worth regulating political speech to avoid them? Isn’t the real danger of campaign finance a) the direct ties between donations and legislation as exemplified by Abramoff’s activities, and b) the ability of richly funded candidates to outspend poorer funded candidates and thus gain an electoral advantage not due to their respective “absolute appeal”?

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Henry 04.19.06 at 12:57 pm

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.

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Ginger Yellow 04.19.06 at 1:02 pm

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.

Nobody, not right wing blogs, not talk radio, not conservative magazines, not even Fox News forced the mainstream/”liberal” media to spend an entire month hemming and hawing over the Swift Boat claims the vast majority of which were proven false or irrelevant in the first few days. As demonstrated in the pre-blog 2000 election with the absurd anti-Gores campaign (and bear in mind that I hated Gore as a candidate at the time) the traditional media is perfectly capable of running or being a conduit for a smear campaign all on its own.

I’m certainly not entirely anti-campaign finance regulation in principle (I support it strongly in the UK), although 1st amendment jurisdiction makes it very tricky. What perplexes me is the attachment people have to the current system, which has allowed and possibly exacerbated horrendous abuses, and the desire to extend it to the closest thing the world has to genuinely free and democratic expression. I’m more than willing to look at things like disclosure.

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decon 04.19.06 at 1:08 pm

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.

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abb1 04.19.06 at 1:12 pm

Nothing frightens me (except the wife going shopping to Paris), certainly not coordinated talking points. But how does the existance of one unrelated issue negate the other?

They are not exactly unrelated, of course; this is all result of extreme lopsidedness in economic (and therefore political) power in the country, the world is not nearly flat enough. In an ideal world where economic power is more or less equally distributed I would agree with Sebastian.

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jet 04.19.06 at 1:19 pm

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.

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Adam Bonin 04.19.06 at 1:23 pm

I seem to have been called out by name here, so let me respond.

In answer to your initial question, this is what Carol Darr/IPDI said in their initial FEC filing regarding bloggers:

Some bloggers want it both ways, however. They want to preserve their rights as political activists, donors and even fundraisers — activities regulated by campaign finance laws — yet at the same time enjoy the broad exemption from the campaign finance laws afforded to traditional journalists.

. . .

The ramifications of the bloggers’ demand are enormous. The issue before the FEC goes to the heart of the fundamental questions that define a democracy’s relationship to a free press: Who should be treated as a journalist, and what special privileges, if any, should they receive?

The question is urgent and the implications are profound. . . . 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. . . .

[If] 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.

Is that an explicit enough demonstration that she believed “bloggers should be regulated but not the mainstream press”? (And to be clear, I have nothing against Carol Darr personally; I just think her beliefs are wrong.)

Crow tastes best after roasting for thirty minutes at 350 degrees, usually with a lemon-thyme rub under the skin.

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Adam Bonin 04.19.06 at 1:31 pm

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.

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Sebastian Holsclaw 04.19.06 at 1:35 pm

“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.”

The blogger case just heightens the contradictions in the underlying law. It exposes (even more than before) that McCain-Feingold is an anti-free speech mess.

Perhaps the statute ought not survive.

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Adam Bonin 04.19.06 at 1:36 pm

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?

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Henry 04.19.06 at 1:36 pm

ummm … nice try but no cigar. It isn’t an explicit demonstration at all. What Carol is saying is pretty clear – that people can’t or shouldn’t be journalists (able to take advantage of the media exception) and political activists (actors directly engaged in the political process) at one and the same time. She’d have exactly the same reaction to, say, a campaign seeking to coordinate directly with a traditional media outlet. As is quite clear from the testimony quoted from Seth Finkelstein in comment 28 above, her issue is with the media exception’s consequences, of which blogging is a particularly sharply drawn test case (because the barriers to entry are so low).

bq. 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.

88

Henry 04.19.06 at 1:39 pm

bq. 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.

89

Adam Bonin 04.19.06 at 1:43 pm

Except, Henry, “political activism” is wholly allowed by members of other media. They can be wholly partisan and non-objective; they can encourage readers to give money to campaigns; they can turn over their airwaves to candidates for office; they can even be the subject of campaign fundraisers themselves. There is no legal restriction against campaigns “coordinating” with press entities either. All this was affirmed by the FEC well before this year.

The only questions under the law are: are you generally engaged in “news, commentary and editorial”, and are you not owned by a candidate, party or PAC? That’s it.

90

Adam Bonin 04.19.06 at 1:50 pm

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.

91

Sebastian Holsclaw 04.19.06 at 1:52 pm

So is her problem with the media exemption itself or with applying it to blogs?

Henery, you say “her issue is with the media exception’s consequences, of which blogging is a particularly sharply drawn test case (because the barriers to entry are so low).”

The problem with this formulation is that the reason blogging is such a sharply drawn test case is not because of some media exception to campaign rules, but because individuals can do it on their own such as to make it indistinguishable from the politcal tract-making that the Constitution obviously protects.

It does indeed sharply draw the problems with the exception, but in exactly the opposite way from what she claims. It reveals that the special media exception allowing free speech only to the news media should always have been seen as an attack on the free speech of everyone else.

“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.”

People are allowed to aggregate themselves into groups for speech purposes. If Henery Farrell, Chris Bertram, John Holbo, John Quiqqin, Daniel Daives, Ted Barlow and Belle Waring (note that some aren’t even US citizens) want to pool their resources for advocacy purposes on a hypothetical blog called CrookedTimber, they should be allowed to.

92

Henry 04.19.06 at 1:53 pm

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.

93

Adam Bonin 04.19.06 at 1:57 pm

Henry, she’s never proposed a replacement to the media exception, nor can I imagine one that would solve the problems she alleges. Would she be forcing General Electric to sell NBC News? Legally mandate that Fox News be “more objective”?

I don’t accuse her of “hypocrisy”; I accuse her of opposing free speech.

94

Henry 04.19.06 at 1:57 pm

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.

95

Henry 04.19.06 at 1:59 pm

bq. I don’t accuse her of “hypocrisy”; I accuse her of opposing free speech.

and I’ve got a couple of corrupt democratic systems in Italy and Russia that I’d like to sell you …

96

Atrios 04.19.06 at 2:02 pm

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.

97

Ginger Yellow 04.19.06 at 2:03 pm

“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.”

The blogger case just heightens the contradictions in the underlying law. It exposes (even more than before) that McCain-Feingold is an anti-free speech mess.

Perhaps the statute ought not survive.

Once again (get it while it lasts!), what Sebastian said.

Henry:

What Carol is saying is pretty clear – that people can’t or shouldn’t be journalists (able to take advantage of the media exception) and political activists (actors directly engaged in the political process) at one and the same time.

Why not? Seriously. 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?

98

Adam Bonin 04.19.06 at 2:05 pm

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”.

99

Sebastian Holsclaw 04.19.06 at 2:08 pm

But her concern with the media exemption attacks the very core of free speech. Not only would she not allow blogs to have free speech, she doesn’t want there to be a free press either. If she want to eliminate the media exemption it would be to shackle the speech rights of everyone. The reason the media exemption was included in the first place was because the law would clearly be unconstitutional if it restricted press discussion of political issues. All that the blogger question has done was reveal how wrong it was to limit the 1st Amendment protections to elite members of the media. It is a protection given to all citizens.

100

Sebastian Holsclaw 04.19.06 at 2:12 pm

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.

101

john m. 04.19.06 at 2:22 pm

“The 1st amendment is supposed to protect politcal activism”

My italics.

102

Henry 04.19.06 at 2:25 pm

bq. 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.

bq. 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.

bq. 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.

103

Little Heroes 04.19.06 at 2:30 pm

Henry, first-time poster here, and sorry to be harsh as a first time. But your friend is out of it here. Regulating blogs in this context simply makes no sense.

Let me quote this back atcha.

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.

*snippity*

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.

So here’s the thing. Why on gawd’s green earth does she care that Blogs can be dominated by cash, but doesn’t care that other media outlets can be dominated by cash? I haven’t seen her, haven’t seen you, haven’t seen anybody even hint at why blogs are a particular problem that need addressing. Moon owns the Times, and she’s worried b/c some rich guy might start a Blog? It’s almost like she hasn’t even heard of FOX news.

And then it seems like she thinks Blogs are special because other media has “journalists” hold to a code of ethics. But unlike lawyers, Geraldo doesn’t lose his right to practice Journalism for acting like a partisan and throwing an election to Bush, or soliciting donations, or anything like that. No one don’t loses a right to be evil for violating the journalistic code of ethics.

So here’s the question. Let’s ignore freedom of speech. Let’s ignore the futility of regulating the INTERNET of all things in this manner. Let’s ignore all that.

Why Blogs?

104

Adam Bonin 04.19.06 at 2:38 pm

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.

105

Patrick Nielsen Hayden 04.19.06 at 2:38 pm

“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 certainly saying I’m inclined that way. I’ll go further and say that the progress of this argument has made me feel this way more strongly, not less.

106

Atrios 04.19.06 at 2:40 pm

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.

107

james 04.19.06 at 2:43 pm

Henry and I’ve got a couple of corrupt democratic systems in Italy and Russia that I’d like to sell you …

This is the point. The political speech in Russia is state restricted and state controlled. Precisely the kind of regulations you seem to be advocating for.

The Italian system does not match what you are advocating against. In the United States there is a legal limit to the number of major media sources an individual can legally own in a given region of the country. The restriction was reduced to a certain degree (with respect to radio) by the Clinton administration. This law already prevents a Berlusconi type scenario. Also, Berlusconi’s most effective media pr was the gifting of his autobiography to every household in Italy.

How, exactly, does a call for state restrictions on the speech of the general public resolve any of the issue raised by the Russian or Italian Democracies?

108

abb1 04.19.06 at 2:44 pm

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?..

109

Adam Bonin 04.19.06 at 3:22 pm

I’d like to refocus for a moment, Henry, just so I can understand why you believe Ms. Darr has never stated “that bloggers should be regulated but not the mainstream press”. With which of these statements are you arguing?

1. That Darr in fact said the things I quoted in post #83.

2. That the dichotomy between “journalist” and “partisan activist” the she demands “at a minimum” for bloggers is not one which applies to participants in other media under current campaign finance law.

By way of example, Sean Hannity fundraises for Sen. Clinton’s electoral opponents on the air and is the special guest at Rick Santorum fundraisers; Paul Begala and Jim Carville host CNN’s Crossfire without ever having to disclose a client conflict; radio talk shows can turn over the airwaves to Bob Dornan as a guest host while he’s in the middle of a congressional campaign; the Philadelphia Daily News tells readers how to send John Kerry money, as Charles Krauthammer did to the RNC (to stop Howard Dean). None of this is objectionable under the law.

So what am I missing?

110

Barry 04.19.06 at 3:46 pm

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.

111

Henry 04.19.06 at 3:58 pm

James – the point I was trying to make is exactly that limits on the number of major media sources that an individual can own is indeed a limit on free speech. Re: the Russian example, I was thinking not so much of press regulation as of the regulation of speech on the Internet, where an effective lack of implemented regulation co-exists with the domination of government-friendly voices. Cf Marcus Alexander’s “paper”:http://www.henryfarrell.net/internet/alexander.pdf on the topic.

Duncan, Adam – in the same “comment”:http://ipdi.org/UploadedFiles/Comments%20to%20FEC%20in%20Internet%20NPRM.pdf that you quote from, we also see

bq. The bloggers are correct about the broad scope of this exemption: the news media can interview candidates, get leaked stories from them about their opponents, hold editorial board meetings with them, endorse them and even follow them around all day long if they are so inclined, none of which is subject to regulation by the FEC, regardless of how much money they spend.

Let me parse out what I believe Carol is saying here (I haven’t asked her particularly about this, but insofar as I can reconstruct a conversation we had around the relevant period last year, I believe that the following more or less represents her position). The media exemption presents a massive loophole that can easily be exploited by political actors. The only bulwark against this is journalistic ethics – and that is not exactly a strong bulwark these days. Blogs pose the question of the relationship between politics and the media in an especially visible way, because bloggers are at the one time political activists and journalists. 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. But you’re going to have your work cut out for you – and the new technologies may render the choice moot anyway (“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.”) This isn’t a claim that bloggers should be regulated more strictly than journalists. It’s a claim that bloggers – if they want to claim journalists’ exemptions – should behave as journalists are supposed to. And, as noted _passim_, Carol happily accepts the corollary that if journalists themselves are going to be allowed to take advantage of the journalistic exemption, they need to behave in exactly the same way. In other words – as I understand her, she supports the extensions of restrictions to Hannity etc.

Patrick – it sounds as if we probably disagree on fundamentals then. I’m certainly in favour of the kinds of restrictions on media ownership etc that James mentions, and on the fence over disclosure requirements for media. My worry with (a) is that it’s quite possible for Berlusconi types to accumulate gross political power and subvert democracy without such restrictions, and with (b) the obvious problems about non-disclosure of interests, dishonest debate etc. If I were pushed, I would probably agree with Adam that some form of self-regulation on disclosure is likely to work better than law.

112

Henry 04.19.06 at 4:03 pm

bq. 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

Nope. We could posit the counterfactual – would the Swift Boats bullshit have gotten into circulation without the influence of right wing blogs at the outset – and as always, with counterfactuals, it’s impossible to arrive at a definitive answer. But I strongly suspect that the transmission belts between right wing blogs and the media are more powerful than the transmission belts between Rush Limbaugh and the print and tv media. I suspect that many more journalists read PowerLine than listen to talk radio (I admit that I don’t have any very substantial to back up this suspicion). Whichever which way, right wing blogs were clearly a part of the booster strategy and imo an important part.

113

Brett Bellmore 04.19.06 at 4:04 pm

If there’s a pattern it’s this: 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.

114

Sebastian Holsclaw 04.19.06 at 4:09 pm

“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.

115

Adam Bonin 04.19.06 at 4:14 pm

Henry, if Carol “happily accepts the corollary that if journalists themselves are going to be allowed to take advantage of the journalistic exemption, they need to behave in exactly the same way. In other words – as I understand her, she supports the extensions of restrictions to Hannity etc,” well, she’s never said it publicly at any point in this debate, just as the whole “Oh, GE owning NBC is bad too” claim never came up until this week either.

The “restrictions” that you’re referring to there aren’t legal restrictions but ethical standards of the profession, and the Federal Election Commission is neither legally or factually competent to enforce any notion of “how journalists are supposed to behave”. The FEC regulations campaigns, parties and PACs, and it regulates money; drawing independent actors like journalists and bloggers under its jurisdiction is precisely what we urged them to refrain from doing.

Frankly, I don’t know how any government agency or court is supposed to distinguish between “good activism” (newspaper endorses candidate) and “bad activism” (cable news channel is overly biased?) without getting into the kinds of line-drawing disputes which will end up chilling a lot of worthwhile speech.

Henry, you keep going back to the Swift Boat example, but I don’t get it: what part of that message needed anything other than better Democratic speech in response in order to defuse the issue?

116

decon 04.19.06 at 4:28 pm

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.

117

anon 04.19.06 at 4:42 pm

It suprises me that Henry keeps bringing up Berlusconi. I seem to remember that he lost in a democratic election recently, despite his media oligopoly.

Further, Henry continues to ignore the qualitative difference between the print and broadcast media, requiring millions of dollars of investment as a barrier to entry, and exerting monopolistic or quasi-monopolistic control on that aspect of communication in their geographic areas, and the Internet. At least until SBC->ATT has its way and sets up toll booths, the barrier to entry is low. Last time I looked, it costs nothing to establish a blog on blogspot. Glenn Greenwald is a perfect example of how quickly a well-written blog with something to say that reverberates with a large audience can achieve an audience.

118

Patrick Nielsen Hayden 04.19.06 at 4:48 pm

“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.

119

Seth Finkelstein 04.19.06 at 5:12 pm

Patrick (#118) – You mean you can’t trust academics, who aren’t exclusively motivated by money and political power, but you can trust professional demagogues who have every incentive to clothe their money and power grabs as a populist uprising?

What’s wrong with this picture?

Hint: Take a look at the class of some of those supposed advocates of The People.

120

Henry 04.19.06 at 5:19 pm

Patrick – let me clarify – I’m presuming that you’re referring to the “more serious response” bit in the initial post. What I was trying to say, in telegraphic form, is something like the following. I suspect that we’re going to be facing into some real problems over the next several months, wrt the use of blogs by one or another special interests, people working for candidates etc. I also suspect that the primary targets for this aren’t going to be the national press – it’ll be attempts to mau-mau the local press along the lines of the Thune campaign. And I think that’s bad news for anyone who wants blogs to have a genuinely populist energy. If it’s hard to distinguish real blogs from astroturf blogs, then the ability of blogs to play a real political role is going to suffer dramatically. As noted somewhere in the heap of comments above, this is a major problem for genuine grassroots groups trying to influence the policy process – they have no very good way of distinguishing themselves from a fax machine in the backoffice of some scumbag K street lobbyist. The major currency of bloggers is authenticity – I worry that this is going to get seriously devalued.

When I see Duncan and others piling up on Carol, I’m a little pissed because she’s someone who I know and like as a friendly acquaintance. But I’m also worried because it’s not a serious response to the problem. The fear that blogs can be used to inject vicious bullshit into the debate and swing races is a real fear; again cf the Daschle race. When I say I’m looking for serious responses, what I’m looking for is responses that either (a) acknowledge that there is a problem, and figure out ways to deal with it, or (b) provide some real reassurance (and I admit that I’d be hard to convince) that there isn’t a real problem here after all. 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.

121

Brett Bellmore 04.19.06 at 5:24 pm

Oh, there’s a problem here, it’s just that it’s inherent to a society with freedom of the press, and of speech, and you can’t get rid of the problem, without getting rid of the freedom. People you don’t like, saying things you object to, is an unavoidable aspect of a society where people you do like are able to say things you agree with, without fear.

It’s not a problem, it’s a price.

122

Seth Finkelstein 04.19.06 at 5:27 pm

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?

123

decon 04.19.06 at 5:28 pm

There are deep issues here that I’d like see others grapple with. Off topic, but what the heck…..

An informed citizenry is the cornerstone of a thriving democracy, or at least some old bird said so. At the heart of the problem we are discussing, are ignorant Americans, an American president focused on fooling 51% of them all of the time, and a press that is, in my view, badly broken.

Jefferson intended, or so I suppose, that a “free” press would facilitate an informed citizenry. There have been moments in US history when a badly informed citizenry allowed opportunistic politicians to rush to war — I would count the American civil war and the current Iraq war as cases in point.

Today our “free” press consists of a struggle for market share in which 99.9% of the market is captured by participants who claim “objectivity” but who create infotainment and relegate depressing and boring happenings to the back page and late night reels.

How do you subsidise or create incentives for a “good” critical press that popularizes issues of with serious consequences while informing the citiznery, and without that apparatus being captured by the same forces who won’t to fool all of the people all of the time…..

124

Sebastian Holsclaw 04.19.06 at 5:29 pm

“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.

125

Brett Bellmore 04.19.06 at 5:33 pm

Well, looking back at the press as it was in Jefferson’s time, perhaps you drop the pretense of objectivity and fairness, and let the media be openly partisan mouthpieces for political factions.

Because that’s what they were when the 1st amendment was ratified, and for a long time after.

126

decon 04.19.06 at 5:35 pm

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

127

decon 04.19.06 at 5:39 pm

And an apology for my ill temper in #80. I like what Henry writes almost all the time. I’ve even met him once. Nice guy. Kudos to Henry for sticking his neck out, if not for sticking to his guns. Interesting and informative discussion for me.

128

Atrios 04.19.06 at 5:43 pm

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.

129

Brett Bellmore 04.19.06 at 5:43 pm

I sincerely doubt that the Civil war was a result of the press being open about their partisan nature.

130

Henry 04.19.06 at 5:48 pm

Sebastian – perhaps the confusion is because I’m engaged in two somewhat different debates here. One is the abstract question of whether some regulation of free speech is appropriate – where my position is yes, that certain kinds of regulation (viz. on media concentration etc) are reasonable, and under some circumstances at least, necessary. The second is the practical question of whether regulations are appropriate in this instance for this set of issues. Here my answer is probably not; viz. where I say above

bq. 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 certainly don’t think that Darr is committing thoughtcrime as some of her critics in this thread seem to believe by arguing differently.

decon – as I specifically noted in the post, I didn’t have any very good evidence to back up my suspicion. That’s why I called it a “suspicion” rather than an “assertion” or a “claim.” I do know that there are stats saying that 40-some percent of journalists read blogs at least weekly; I don’t know if there are similar figures for talk show radio. But at least put it this way – journalists are a lot more prepared to talk about blogs and admit to reading blogs in public than they are prepared to talk about talk radio. Re: your questions on the free press – I’d recommend you read Yochai Benkler’s new book on the topic of how new info tech is changing the role of the press and other forms of communication – it’s very good.

Which brings me on to Seth’s point. I’m actually pretty bullish about the potential of blogs – including raw partisan meat blogs – to reshape American politics in a more populist direction. Not to say that I agree with everything they say, or that I’m not frequently annoyed by them – but in the end of the day, I’m an academic not a politician or a movement builder – I’m not trying to do as a blogger what they are trying to do. I hope to have more to say whenever I get around to reviewing the Armstrong/Kos book. And on Benkler’s book, I’m bullish about some of his arguments too. But (to anticipate what I’m going to say a week or two from now when I write a proper post on it) I don’t think he pays as much attention as he should to the vulnerability of decentralized, disaggregated forms of social activity to invasion. More on this later.

131

Bruce Baugh 04.19.06 at 5:54 pm

One aspect of this that I haven’t seen Patrick spell out here, but that I (at least) connect to his concerns: even though I have a lot of respect for Henry’s integrity, intelligence, and willingness to learn, I have no respect at all for those qualities’ strengths in many of the people who turn policy into specific action. I am broadly opposed to any fresh grant of power under this administration, and under any other until there’s been a thorough house-cleaning. I have too much first-hand experience (thanks to hard-to-diagnose, hard-to-treat medical problems and life on the fringes of research) of how measures intended to protect innocent people end up becoming tools for protecting an entrenched powerful class instead.

I don’t think this amounts to a reason never to regulate. But I do add it alongside other concerns when it comes to do anything for the duration of this administration and its legacy.

132

Henry 04.19.06 at 5:54 pm

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

Yeah, agreed. And assuming we agree that outright lies along Swift Boat lines are a bad thing, what do we do about it? Is there anything we can do usefully about it? (I’m not asking rhetorical questions – I can sort of map out the problem, and the difficulties associated with various possible solutions – but I can’t see how to get from there to here).

decon – given that my original post was somewhat pissy, I’m in no good place to expect apologies from others for bad tempered comments. Don’t worry about it.

133

Sebastian Holsclaw 04.19.06 at 6:04 pm

“And assuming we agree that outright lies along Swift Boat lines are a bad thing, what do we do about it?”

It depends on what you mean by ‘we’. If ‘we’ are bloggers there are probably lots of things we can do. We can probably commit to debunking lies that we see. We can try to point out a history of doing certain things. We can point out financial influence.

If ‘we’ are the government I doubt there is much we can do without restricting free speech much more than I think would be a good idea. I especially object to making a class of citizens with better free speech rights than the rest of us.

134

pdf23ds 04.19.06 at 6:45 pm

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.

135

Patrick Nielsen Hayden 04.19.06 at 6:58 pm

Seth Finkelstein asks me:

You mean you can’t trust academics, who aren’t exclusively motivated by money and political power, but you can trust professional demagogues who have every incentive to clothe their money and power grabs as a populist uprising?

Don’t be silly. Where did I say I trust those guys? As Phil Agre observed several years ago, deceiving us has become an industrial process. And it’s only gotten worse since then.

The question is what to set against this kind of demagoguery. Federal campaign-finance regulation, the fabulously effective apparatus that has bequeathed to us the fair and balanced national politics we enjoy today? Or something else? As Sebastian Holsclaw observes in #124:

[E]very single time the federal government has tried to deal with the question [of who may or may not speak, under what circumstances] 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.

I’m not a libertarian. But this is a good libertarian argument, based in assertions which are substantially true.

136

Seth Finkelstein 04.19.06 at 7:22 pm

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]

137

luc 04.19.06 at 7:31 pm

Given that freedom and freedom of regulation always has been a central part of internet culture, I can’t see that it wasn’t to be expected that Carol Darr would get some scorn for the quotes given here.

From Stallman to Raymond, left to right, this has always been a contentious issue.

But what I don’t understand here is the politics. Darr is from IPDI. IPDI created together with amongst others the EFF, a set of “principles” about this issue.

And these principles don’t look at all as something that the internet community would get upset about. Given the involvement of the EFF I had expected support for it. So how could Carol Darr end up on the wrong side of public opinion?

138

Atrios 04.19.06 at 7:37 pm

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.

139

Adam Bonin 04.19.06 at 7:41 pm

As a factual matter, EFF itself played no role in this; the Center for Democracy and Technology did. Its comments to the FEC were far more freedom-affirming than IPDI’s were. See http://www.cdt.org/speech/political/20050603cdtcomments.pdf .

The best way to piss off a blogger is to tell him he’s not as good as a “real” journalist. That was Darr’s first failing. From there, well, not-saying all the things that Henry insists she meant to say only triples the foul.

Henry, there is no problem with “bad speech” on the Internet that isn’t best responded to with good speech. We can do it for free; we can reach infinite audiences. And sometimes we’ll still lose elections we wish we’d won, but that doesn’t mean that the medium failed. The problem with the Swift Boaters’ message wasn’t that it was said, or how it was paid for and disseminated — it was that John Kerry’s campaign ignored it for days rather than responding immediately.

140

Seth Finkelstein 04.19.06 at 7:42 pm

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 :-( !

141

Brett Bellmore 04.19.06 at 7:49 pm

It’s no pretext: There is in fact no bright line, and any law that enables the government to silence one group of speakers, threatens the liberty of all speakers.

And even “big money interests” have civil liberties.

142

Atrios 04.19.06 at 7:51 pm

er..swift boat, that is

143

Gary Farber 04.19.06 at 8:09 pm

I had a brief exchange with Duncan Black on the issue of the two bills then pending here. I never did get an answer back from anyone as to exactly how it was that the interests of blogs that need to spend over $10k a year are the same interests as those of all blog users.

144

decon 04.19.06 at 8:21 pm

#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…

145

decon 04.19.06 at 8:22 pm

… er #129.

146

Jake McGuire 04.19.06 at 8:48 pm

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?

147

Brett Bellmore 04.19.06 at 8:50 pm

I make no claim about whether an openly or covertly partisan press is more likely to result in an informed citizenry. I simply pointed out that the press the 1st amendment guaranteed the freedom of WAS openly partisan, basically political propaganda put out by various factions, with a levening of general news to fill them out.

THAT is what the 1s amendment was designed to protect. Barely disguised campaign advertisments. Not the modern illusion of objective journalism.

It’s mind boggling that people try to pretend that the 1st amendment doesn’t protect EXACTLY what it was written to protect.

148

decon 04.19.06 at 9:01 pm

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

149

asg 04.19.06 at 10:20 pm

Re #148: It’s only an excellent point if you think it matters what the 1st amendment was designed to protect. Just wave your hands in front of the monitor and mutter “living document”.

As for Henry and my “unserious” comment (what does it tell you that quoting from the piece he linked renders a comment “unserious”), it doesn’t surprise me that some election reform groups are just as unconcerned with the real-world enforceability issues associated with Ms. Darr’s proposed regulations as she is. Activists and academics often share a casual attitude towards messy implementation issues.

150

Adam Bonin 04.19.06 at 10:31 pm

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.

151

luc 04.19.06 at 10:40 pm

Adam, not that it matters much, but the EFF claims that the text you link to are “our joint comments to the FEC” (here), and it contained those principles which the IPDI signed on to. That’s where I got the impression that there was more cooperation.

152

Adam Bonin 04.19.06 at 10:48 pm

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.

153

Seth Finkelstein 04.19.06 at 11:25 pm

Adam, in a world of Fox News and right-wing rant-radio, I am utterly unable to take seriously the idea that small and independent bloggers were ever in realistic danger. It’s just laughable, in my view. I realize there’s a lot of rhetorical mileage (and page-views) in waving the flag, err, First Amendment, but as a statement of fact, such a supposed threat doesn’t pass the giggle-test to me.

Yes, political campaign consultants have rights too. But the puppies-in-peril presentation is almost a parody of blog triumphalism.

154

Atrios 04.19.06 at 11:49 pm

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.

155

Seth Finkelstein 04.20.06 at 1:04 am

Mere sanity-checking. If the Fairness Doctrine is not coming back, if media concentration rules are being undone, if the FEC took no action in the Sinclair Broadcast Group incident … it absolutely beggars belief that small and independent bloggers could be at risk.

LawMeme – No, Blogging Will Not Be Regulated by the FCC

“This bout of bloggeristic panic does a few things, none of them productive. First, it redirects an honest debate over McCain-Feingold into an unhelpful debate over a parade of horribles associated with a questionable interpretation of one small offshoot of the act. Second, it fuels Big Bad Big Brother fears about the wrong things: go worry about the material witness statute or the driver’s licence biometric standards. Third, it just reinforces the belief that the number one thing the government, like everyone else, cares about is blogs. They’re just not that into you. And fourth, it completely ignores the ongoing role of the courts in protecting free speech rights.”

156

abb1 04.20.06 at 2:07 am

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.

157

Brett Bellmore 04.20.06 at 5:20 am

“Mere sanity-checking. If the Fairness Doctrine is not coming back, if media concentration rules are being undone, if the FEC took no action in the Sinclair Broadcast Group incident … it absolutely beggars belief that small and independent bloggers could be at risk.”

Bunk. All it would take is the election of a President opposed to free political speech, (McCain, for instance.) and in a few years the FEC would be firmly on the side of censorship. And we already know the courts are, they’re no help in this area. For that matter, it’s still possible the courts may force the FEC to bring on more onerous regulation of the internet.

Abb1, you seem to have some excentric definition of a “free press” which has nothing to do with whether the “press” is “free”, but only whether you like what they publish.

158

abb1 04.20.06 at 5:46 am

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.

159

Brett Bellmore 04.20.06 at 6:21 am

And you’re like somebody who insists the car is broken if the people behind the wheel are driving north, and you’d rather go south.

The press IS free. Which means it doesn’t have to publish what YOU want, either.

160

abb1 04.20.06 at 6:36 am

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?

161

Adam Bonin 04.20.06 at 7:03 am

Seth, respectfully, the leading pro-reform groups (Democracy 21, the Campaign Legal Center and the Center for Responsive Politics) argued before the FEC in November that a website which “intends to endorse, expressly advocate, and urge readers to donate funds to the election of Democratic candidates for federal, state, and local office” ought to have to register with the FEC as a political action committee. They also “”>urged Congress to pass a bill which would have done massive damage to this medium.

Also, why should we only be worried about “small” bloggers? Are successful bloggers more worthy of being regulated?

162

decon 04.20.06 at 8:17 am

#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.

163

asg 04.20.06 at 10:37 am

#162: Apparently the sentence “Just wave your hands in front of the monitor and mutter “living document”” was not enough to convey the contempt in which I hold the view that what the Constitution was intended to do doesn’t matter.

164

abb1 04.20.06 at 11:02 am

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.

165

Rich Clayton 04.20.06 at 3:07 pm

Henry,

Adam B.’s sarcastic remark about “precious bodily fluids” was in regard to Darr’s comments about possible foreign ownership of blogs, not about the SBVFT. As such, and given Darr’s failure to have either raised this point in her FEC testimony (she only brought it up on the chat), or to explain how blogs are different from any “traditional” media outlet that can also be owned by non-US individuals and companies. You’re really overreacting to the perceived slight of a friend here, and failing to appreciate just how wrong her position is.

166

Adam Bonin 04.20.06 at 3:14 pm

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

167

Seth Finkelstein 04.20.06 at 3:40 pm

Adam (#161) regarding Also, why should we only be worried about “small” bloggers? Are successful bloggers more worthy of being regulated?, note what I said in #153 – “Yes, political campaign consultants have rights too. But the puppies-in-peril presentation is almost a parody of blog triumphalism.”

This issue has always been about Big Money, attacking (or defending) the principle of campaign finance law, and the interests of those who are professional campaign players. Which are complex and important issues. However, it has never been about small and independent bloggers, in a realistic sense. That is not to say that campaign consultants should lose. 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.

168

Sebastian Holsclaw 04.20.06 at 3:53 pm

“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.

169

Adam Stephanides 04.20.06 at 4:27 pm

A few quick points:

1. Henry repeatedly uses the dangers of “Astroturf” blogs to show that regulation of political blogging is in principle desirable. But nothing in Carol Darr’s comments either quoted in 28 or linked to in 111 refers to “Astroturf,” and none of the concerns she raises would be alleviated by requiring bloggers to disclose their sources of funding.

2. Like ginger yellow said, I don’t often agree with Sebastian Holsclaw, but in 114 he’s right on the money: the First Amendment doesn’t and shouldn’t allow the government to create a special class, whether called “journalists” or whatever, with first-class free speech privileges while the rest of us have to make to with second-class free speech privileges. If the Supreme Court says it does, so much the worse for the Supreme Court. And the First Amendment aside, it’s a bad idea anyway. If we are going to regulate political speech, it should be done without creating different classes of free speech rights depending upon whom one’s employer is.

3. Henry: “The fear that blogs can be used to inject vicious bullshit into the debate and swing races is a real fear; again cf the Daschle race. When I say I’m looking for serious responses, what I’m looking for is responses that either (a) acknowledge that there is a problem, and figure out ways to deal with it, or (b) provide some real reassurance (and I admit that I’d be hard to convince) that there isn’t a real problem here after all.” There’s a problem, but it’s not specific to blogs, and brett bellmore is right that it’s an unavoidable consequence of free speech. As several commenters have pointed out, the case hasn’t been made that “vicious bullshit” is any more prevalent in campaigns today or in 2004 than in the past, let alone that blogs play or will play a causal role in this supposed increased prevalence. Really, it wasn’t that long ago that much of the print “mainstream media” was openly partisan: witness the Manchester Union Leader under Loeb, or the Chicago Tribune under Col. McCormack, or even Time in the 1950s.

170

Adam Bonin 04.20.06 at 4:57 pm

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.

171

Seth Finkelstein 04.20.06 at 5:37 pm

Adam, seriously, with respect, that “news” summary was written by a notorious partisan hack, a yellow journalist who was pushing the scare in the first place, and has a long track record of writing wolf-crying stories about the government supposedly planning to attack blogger’s free-speech.

If anything, it’s supportive in the sense that it’s evidence that journalists are already political operatives :-).

In terms of the reasoning process, of weighing evidence, I’m impressed that one side is political consultants and anti-campaign-finance-law think-tankers, while the overwhelming opinion of academics and disinterested lawyers was that there was never a serious threat to average citizens. The mau-mau-ing of Carol Darr isn’t coming just from the mudpit flamers, but a high-level action to intimidate her. Maybe that’s life in the big city, and politics is a tough business – but it goes a long way towards convincing me who to trust overall (which, sigh, is not an agreement with every statement made by that side).

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Adam Bonin 04.20.06 at 5:55 pm

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.

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Krempasky 04.20.06 at 6:22 pm

Henry – I admit – I haven’t read the entire thread. But come now. This is just weak stuff.

“But it doesn’t change the fact that Thune’s bought and paid for astroturf blogs helped swing the race in South Dakota”

Yeah. And? Let me help: They disclosed it, too. No one but the most ardent of regulators actually contemplated forcing bloggers to disclose anything – not just because it’s patently anti-freedom – but BECAUSE IT’S NOT ALLOWED BY LAW. Disclosure falls on those who write checks – not those who take them.

And as far as Carol goes – she’s one of the nicest, most pleasant people I’ve ever met that manages to get freedom and speech (and the combination of both) so mind-bendingly wrong. She’s a great person, but I’m glad she’s not voting on our ability to speak freely.

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james 04.20.06 at 6:30 pm

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.

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Sperm Donor 04.20.06 at 6:54 pm

I think it was a famout Supreme Court justice that said that the antidote to erroneous or misleading political speech is NOT shutting down that speech, but instead it is MORE counter-speech.

It has something to do with the “market place of iideas” where competing thoughts and points of view compete with one another and do battle with one another to win converts and adherents.

Thus, if there are going to be LIES disseminated on the Internet, the remedy is to have other people disseminating the truth in the hope that people, who have a choice to be exposed to both, will eventually make the right choice.

To me, this point of view is intimately related to the idea of “democracy.”

In this sense, the Internet is truly a democratic, market place of ideas and points of view where ANYONE can say whatever he or she wants, and anyone has the choice as to buy into it, shit on it it, or choose another point of view.

In this sense, the Internet is more FREE than corporate media, where there truly is NO market place of ideas, but instead the choices are made by a relative few editors and owners as to what the public will be exposed to.

Yet, paternalistic IDIOTS like Darr want to regulate the Internet?

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John Quiggin 04.21.06 at 12:00 am

“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.

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abb1 04.21.06 at 1:15 am

The system is also predicated on promoting the general welfare, James. You do have a point about the fame, but if you take a couple largest corporations in the US, their combined net worth is probably higher than that of 90% of the US population combined. So, at this point there’s no doubt whose interests are served by the so-called ‘free speech’ and it’s not interests of famous or charismatic.

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Adam Bonin 04.21.06 at 9:14 am

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.

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Atrios 04.21.06 at 2:05 pm

John,
sure it’s a breach of ethics but there are no laws governing it. In addition while think tank donors may be somewhat publicly available knowledge, it isn’t as if it’s the kind of thing which is generally disclosed to readers at the bottom of the op-ed, or when they appear on radio/tv.

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corduroy 04.21.06 at 5:16 pm

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!)

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john m. 04.22.06 at 3:24 am

Wenyi Wang arrested and charged. Go free speech and the land of the free.

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Krempasky 04.22.06 at 2:38 pm

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.

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Adam Bonin 04.23.06 at 10:27 am

And to make Mike Krempasky’s point more explicit, the FEC is governed by six Commissioners, three Dems and three Republicans at all times, and it takes four of them to do anything. Moreover, it’s been the Republicans on the Commission who generally have been the more anti-regulation types.

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Adam Bonin 04.23.06 at 3:15 pm

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.

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