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Strong words, especially since the bill did not contain any explicit restrictions on speech. There would have been civil penalties for failure to register, though, and opponents of the section argued that these penalties would have a chilling effect on the exercise of American citizens' protected right to petition the government.

The ACLU, which also issued a letter against section 220, argued that the registration requirement could not survive the strict scrutiny that US courts apply to restrictions on speech since there was no evidence that the government had an interest in requiring grassroots lobbying firms to register with Congress before engaging in paid efforts to stimulate grassroots lobbying. This averment fails to take the numerous accounts of deceptive Astroturf campaigns under consideration, although the ACLU did touch on the issue with its optimistic opinion that the American public could see through Astroturf and decide issues on their merits rather than on Astroturf propaganda, thus negating the need for any Astroturf legislation.

[We at the Justice aren't so sure - after all, look at all the bloggers who got taken in by the ATA press release.]

ATA's claim of criminal penalties in its press release turned out to be incorrect anyway, according to Fitzgibbons himself, who learned from Senator David Vitter's (R-LA) staff that the criminal provisions of the bill were never intended to apply to the grassroots component of the lobbying bill. ATA never released a clarification, however, and the blogs and news outlets that picked up the story all echoed ATA's original claim that the Senate was attempting to criminalize blogging.

The story was spread by users of Slashdot, reporters at The Inquirer and many politics and technology bloggers, whose reports all referred to ATA's release and passed on its claims as Gospel truth. Credit definitely goes to ATA and Fitzgibbons for identifying a message and an audience that would whip up support for the removal of a proposal that threatened to increase the transparency of ATA's direct mail endeavors. Let no one say that they are not skilled in their work.

The bill made no direct mention of bloggers, but Fitzgibbons had the vision to recognize in the blogosphere's endemic paranoia and aversion to fact-checking a perfect means of spreading opposition to section 220. After all, even with the clumsy wording, the bill would only affect bloggers who get paid a six figure salary from an employer or client (advertising revenue wouldn't count) to stimulate grassroots lobbying as a full-time gig.

But that didn't stop Fitzgibbons and ATA from spreading the Fear among the entire blogosphere, and it didn't soften the indignation that the hyperbolic rhetoric inspired among bloggers.

The truly ironic part of the whole affair is that Fitzgibbons and ATA established GrassrootsFreedom.com, a self-termed "blog," which contained potentially misleading information and included a form that allowed readers to submit messages to Congress in order to fight section 220. Thus, they essentially engaged in the very activity the provision was meant to expose.

The truly sad part is that it worked.®

Kevin Fayle is an attorney, web editor and writer in San Francisco. He keeps a close eye on IP and International Law issues.

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