CBSNews.com chief political writer
Internet blogs are providing a new and unregulated medium for politically motivated attacks. With the same First Amendment protections as newspapers, blogs are increasingly gaining influence.
While many are must-reads for political junkies, are some Internet blogs also being used as proxies for campaigns? In the nation's hottest Senate race, this past year, the answer was yes.
Little over a month ago, the first Senate party leader in 52 years was ousted when South Dakota Republican John Thune defeated top Senate Democrat Tom Daschle. While more than $40 million was spent in the race, saturating the airwaves with advertising, a potentially more intriguing front was also opened.
The two leading South Dakota blogs – websites full of informal analysis, opinions and links – were authored by paid advisers to Thune's campaign.
The Sioux Falls Argus Leader and the National Journal first cited Federal Election Commission documents showing that Jon Lauck, of Daschle v Thune, and Jason Van Beek, of South Dakota Politics, were advisers to the Thune campaign.
The documents, also obtained by CBS News, show that in June and October the Thune campaign paid Lauck $27,000 and Van Beek $8,000. Lauck had also worked on Thune's 2002 congressional race.
Both blogs favored Thune, but neither gave any disclaimer during the election that the authors were on the payroll of the Republican candidate.
No laws have apparently been broken. Case precedent on political speech as it pertains to blogs does not exist. But where journalists' careers may be broken on ethics violations, bloggers are writing in the Wild West of cyberspace. There remains no code of ethics, or even an employer, to enforce any standard.
At minimum, the role of blogs in the Daschle-Thune race is a telling harbinger for 2006 and 2008. Some blogs could become new vehicles for the old political dirty tricks.
Like all media, blogs hold the potential for abuse. Experts point out that blogs' unregulated status makes them particularly attractive outlets for political attack.
"The question is: What are the appropriate regulations on the Internet?" asked Kathleen Jamieson, an expert on political communication and dean of the Annenberg School for Communications. "It's evolved into an area that we need to do more thinking about it.
"If you put out flyers, you have to disclaim it, you have to represent who you are," Jamieson said. "If you put out an ad you have to put a disclaimer on it. But we don't have those sorts of regulations for political content, that is campaign-financed on the Internet."
First Amendment attorney Kevin Goldberg called blogs "definitely new territory."
"[The question is] whether blogs are analogous to a sole person campaigning or whether they are very much a media publication, which is essentially akin to an online newspaper," said Goldberg, who is the legal counsel to the American Society of Newspaper Editors.
"Ultimately, I think, the decision will have to come down to whether the public will be allowed to decide whether bloggers are credible or whether some regulation needs to occur."
Generally, the Supreme Court has ruled that restrictions on political advocacy by corporations and unions does not apply to media or individuals. The reasoning has been that media competition insures legitimacy. This has historically been the argument against monopolies in media ownership.
Hypothetically, if The Washington Post discovered that The New York Times had a reporter being paid by the Bush campaign it would report it. If proven, the suspect reporter would be fired and likely never work in mainstream journalism again. Hence, the courts have been satisfied with the industry's ability to regulate itself.
The affiliations and identities of bloggers are not always apparent. Take writer Duncan Black, who blogged under the name Atrios. His was a popular liberal blog. During part of the period he was blogging, Black was a senior fellow at a liberal media watchdog group, Media Matters for America. Critics in the blogosphere said this fact wasn't fairly disclosed.
"People are pretty smart in assuming that if a blog is making a case on one side that it's partisan," Jamieson said. "The problem is when a blog pretends to hold neutrality but is actually partisan."
That is not a legal problem, however, but one of ethics. Black eventually claimed credit for his blog and his affiliation with Media Matters. Fellow bloggers heavily publicized his political connections. And Black continued blogging.
Defenders of Black point out that unlike the South Dakota blogs, he was not working on behalf of a campaign. And clearly, absent blog ethical guidelines, what Black did was not that different than many others.
"He is perfectly free to write the blog. You can criticize him for it but he had a perfect Constitutional right to do what he did," said Eugene Volokh, who teaches free speech law at UCLA Law School and authors his own blog, the Volokh Conspiracy.
"People are free to say whatever they want to say and not reveal any financial inducements and not reveal in whose pay they are," Volokh added. "Now there is an exception for speech that urges the election or defeat of a particular candidate." But where this exception relates to Internet blogs is unclear.
Beginning next year, the F.E.C. will institute new rules on the restricted uses of the Internet as it relates to political speech.
"I think those questions are going to have to be asked and answered," said Lillian BeVier, a First Amendment expert at the University of Virginia. "It's going to be an issue and it should be an issue."