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Friday, July 13, 2007

Exhibit 1: folkbum's rambles and rants

by folkbum

I've done a lot of things and met a lot people that I never would have had I not started blogging way back when. It has almost always been a positive experience for me, and there's very little of it I would trade in given the chance.

One thing I never expected, however, was to be dragged into court.

I haven't been sued or anything yet--don't get me wrong. But I discovered today that apparently I have been a key ingredient in an ongoing State Elections Board complaint filed against a different Wisconsin blogger. Some highlights as narrated by Owen's buddy Jed:
Sitter’s complaint stated as follows:
I visited Boots and Sabers blog located at: When on the blog I saw under the heading “Promos” an advertisement that stated “Blogs for Ziegler” with a picture of a laptop showing “Annette Ziegler Supreme Court” on its screen. I believe this is advocacy for a candidate for an election. Nothing in this ad identifies who sponsored and paid for the ad. When I clicked on the ad I was redirected to Annette Ziegler’s website for her campaign for Supreme Court of Wisconsin.
Ziegler’s campaign then broke out the clue bat.
[. . .] 4. On information and belief, the practice of posting “Blogs for” pictures that link to a candidate’s Web site is a common practice by blog administrators to show support for a particular candidate. See example of “Linda Clifford” logo from the blog folkbum’s rambles and rants attached as exhibit 1.
[. . .] To get around the obvious fact that the “Blogs for Ziegler” button was the responsibility of no one other than your humble hosts, Sitter came up with this load of crap:
Judge Ziegler argues that the Boots and Sabers “Blogs for Ziegler” is not a paid advertisement and was not placed on the website by Ziegler’s campaign. Ms. Sitter concedes that no violation has occurred by Ziegler’s campaign if the website owner chose to “endorse” Judge Ziegler and place his or her endorsement on the website. See Wis. Stat § 11.30(4) stating, “This chapter shall not be construed to restrict… editorial comment or endorsement.”

Wis. Stat. § 11.30(4) reiterates that “[n]o owner or other person with a financial interest in a communications medium may utilize such medium in support of or in opposition to a candidate or referendum except as provided in this chapter.” Endorsements of candidates for office are an exception. However, promotions acting in support of a candidate are not. [. . .] The Ziegler promotion on Boots and Sabers website is an advertisement, not an endorsement, and therefore is a violation of Wis. Stat. § 11.30 by the owner of Boots and Sabers website or any party who paid for the promotion. [. . .]

The webblog folkbum’s rambles and rants endorsement of Clifford attached as exhibit 1 to Ziegler’s answer is an endorsement. It can be found with other endorsements under the heading: “folkbum’s rambles and rants officially endorses.” This communication would constitute a Wis. Stat. § 11.30(4) exception to the requirements of Wis. Stat. § 11.30. Folkbum’s rambles and rants blog has unequivocally placed its endorsement within a section designated for endorsements. Therefore, folkbum’s rambles and rants endorsement need not comply with Wis. Stat. § 11.30 reporting and “paid for” requirements.
There's a lot of legalese in there, but I think in the end both sides--the Annette Ziegler campaign attorneys and the attorneys for Monica Sitter--are using this blog as an example of how to do things it right. Sitter's side noted that I clearly separate paid ads from editorial content such as endorsements (when I finally get moved to the new template, they won't even be in the same sidebar anymore). Ziegler's people argued that whatever I did was cool. It kind of would have been nice to know all of this was going on, though. I was quite gobsmacked to see it last night for the first time.

In a way, I feel kind of dirty being used by Ziegler's people and in defense of my sworn nemesis; but Sitter's complaint is, indeed, crap. It's crap for several reasons, not the least of which is something I've maintained all along: Blogs, at least locally, are just not as powerful as some people think they are. Even though Owen has traffic to die for, the number of people--specifically, Wisconsin residents likely to vote--visiting his site is still very small compared to the number of Wisconsin voters generally. Moreover, the subset of his traffic last spring who didn't already have their minds made up about the Supreme Court race was undoubtedly much, much smaller. The amount of people swayed by that "Blogs for Ziegler" graphic was probably somewhere near zero, and had Ziegler's campaign actually paid for it, they would have been throwing money away. For me, the same is true, but on 1/10 the scale.

More importantly, though, I thought Sitter's complaint was crap because any attempts to restrict Owen or me (or any other blogger) from making endorsements and promoting candidates and causes we like would place bloggers into a category or media all by themselves. Broadcast and print media do not suffer from restrictions on who, what, when, or how they endorse, and bloggers should not be treated any differently. This was a key element in the fight bloggers fought a year or so ago and won at the federal level. You can read at the Net Democracy Guide what the Federal Election Commission expects of bloggers, including this:
Q: My blog is closely associated with several candidates. I link to campaign web sites and republish campaign material on my site. I even have links directly to the candidates' donation pages. Am I still exempt from the rules?

A: Yes. The rule is clear that these ordinary Internet activities do not constitute an in-kind contribution to a campaign or trigger other campaign finance requirements, provided that the blogger is not being compensated for these activities. If you are compensated for these activities, as discussed more fully below, the primary campaign finance obligations would rest on the campaign that is paying you.
Had Annette Ziegler been a candidate for federal office, everything Owen did would not only have been legal, it would have been explicitly explained as such in existing FEC regulations. However, because the state of Wisconsin has not considered bloggers and electronic media in its campaign-finance legislation, the question remains up in the air. Owen's case here is the test case, and the State Elections Board's Counsel George Dunst has recommended tossing Sitter's complaint. (And we all know what value Dunst's opinions have anymore, eh?)

All of this brought to mind an email I got last fall from James Wigderson, asking for my reaction to a potential post of his. He never pulled the trigger and published the post, but here's a taste:
I'm going to pick on Jay Bullock for a moment because I like the additional traffic. Defending his presence in a Jessica McBride column, Bullock declares his blog, folkbum's rambles and rants, is not affiliated with the Democratic Party. Fair enough.

Um, Jay? I count seven ads that are either uncoordinated independent expenditures or else undocumented campaign contributions. They are for: Steve Kagen, Bryan Kennedy, Doyle/Lawton, Kathleen Falk, Feingold for President, Fair Wisconsin and No Death Penalty Wisconsin. On top of that, Jay has a box asking for contributions to the Democratic National Committee and the sister organizations Democratic Congressional Campaign Committee and Democratic Senatorial Campaign Committee.

Not a big deal, except Jay charges for advertising. [. . .]

As the blogosphere becomes more visible, they will become increasing targets of scrutiny by campaigns looking to silence them. I strongly suggest any blogger that charges for ads take a serious look at the campaign finance rules before they plug their favorite candidates.
I wrote Wiggy back that I felt safe on the federal campaigns, given the FEC's stance, and that I was willing to risk it with the State Elections Board, figuring that I could argue that I was still following the FEC, and acting in good faith that way.

In addition, I pointed out in response, months before the SEB arguments detailed above, that I had clearly labeled the ads, and clearly labeled the endorsements, and didn't pretend one was the other. I've always tried to play it relatively safe with this blog, and drawing as bright a line between those two things just always seemed like a no-brainer to me. I'm not suggesting that Owen was wrong to label his endorsements "Promos," given that Sitter's argument there relied on an internet dictionary to make its point. (Really!) But perhaps a better choice of words would have, in the end, avoided all the mess.

Of course, there's still a chance I might get dragged further into this; I'm hoping my new favorite attorney would be willing to help, if need be. Either way, at least I get to go down in history as something: Exhibit 1.

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