Original URL: http://www.theregister.co.uk/2007/01/22/bloggers_astroturfing_bill/

Bloggers unite to save astroturfing for Mankind

Is this a bandwagon you really want to jump on?

By Kevin Fayle

Posted in Law, 22nd January 2007 21:26 GMT

Silicon Justice Apparently, the blogosphere buys into every press release they read.

In an all-too-familiar scene, bloggers, Slashdot readers and several news outlets were taken in by the hype surrounding a provision in the Senate ethics reform bill that would have required grassroots lobbying firms to register with the US Congress.

Conservative direct-mail guru Richard Viguerie whipped the blogging community into a frenzied, and largely misdirected, opposition to the provision by trumpeting the section's supposed threat to First Amendment rights, freedom, Mom and apple pie.

Section 220 of the reform bill, the grassroots provision, was removed by an amendment prior to the bill's passage late last week, largely because of a blitzkrieg campaign in the media, the blogosphere and on Capitol Hill by Viguerie's advertising firm, American Target Advertising.

Viguerie, for those not familiar with the tarnished panoply of backroom players in American politics, pioneered the use of direct mail techniques for conservative causes, and has been called the "funding father" of the modern conservative movement. His ad agency currently handles direct mail campaigns for non-profits seeking to stimulate grassroots activity or raise funds from the general public.

Section 220 was designed to shed light on so-called "Astroturf" campaigns - seemingly grassroots campaigns that are in fact funded and guided by lobbying or PR firms, usually on behalf of large corporate clients. It would have required lobbying firms or individuals who were retained for "paid efforts to stimulate grassroots lobbying" to register with the US Congress, similar to the registration requirement currently in place for K Street lobbyists.

Because of clumsy wording that would have included an employer in the definition of a "client," the requirement would have applied to anyone who, in the service of their employer, engaged in the stimulation of grassroots lobbying designed to influence more than 500 people, as long as the organization spent over $25,000 per quarter on the activity. Thus, anyone who was paid $25,000 per quarter to maintain a weblog with a readership of more than 500 people would have to register with Congress under section 220 if they spent all of their time encouraging the general public to contact an executive or legislative official over a matter of public policy.

While this undoubtedly represents an onerous burden for all those richly paid, grassroots-stimulating bloggers out there, the Senate could have easily fixed the problem by changing the definition of "client" as it applies to grassroots lobbying to exclude an employer. That way, an organization that wanted to start a grassroots blog campaign wouldn't have to register as a grassroots lobbying firm, since it would fall outside the definition for "paid efforts to stimulate grassroots lobbying."

That solution wouldn't have worked for American Target Advertising, however, since it is retained by actual external clients to stimulate grassroots lobbying. Even with the fix, section 220 still would have forced the agency to register as a grassroots lobbying firm.

Thus, instead of putting pressure on the Senate to fix a well-intentioned - but poorly executed - proposal, ATA launched a scare campaign aimed at convincing the blogging community that the federal government was waiting in the wings to send its critics in the blogosphere to jail if they failed to register as grassroots lobbyists.

According to a press release entitled Congress to Send Critics to Jail issued by Mark Fitzgibbons, also of ATA, on behalf of Richard Viguerie, section 220 threatened to plunge the United States into the darkness of totalitarianism. GrassrootsFreedom.com, a website created by ATA and Fitzgibbons specifically to combat section 220, stated that section 220 "may be the biggest threat to free speech ever".

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.