Thursday, July 12, 2007

Update on State Election Board Complaint

As you may or may not remember, on March 26, 2007, a woman named Monica Sitter filed a complaint with the State Election Board (“SEB”) of Wisconsin because of this button, which used to be displayed in the sidebar of our blog.

image

The button was placed there, along with several others, to show which candidates Owen and I, either collectively or individually, supported for public office.  Ms. Sitter, however, filed a complaint against Anette Ziegler alleging that Ziegler was in violation of election law because the button did not contain a disclaimer setting forth who paid for the “advertisement.”

We have received an update on the matter.  The SEB’s legal counsel has analyzed the facts and concluded that there’s no merit in the B&S complaint, since “the respondent and her campaign would not appear to be responsible for any obligation that the blog might have had to publish a “source identification.’”

Details on the entire process are below the fold…

Sitter’s complaint stated as follows:

I visited Boots and Sabers blog located at: http://bootsandsabers.com/.  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. 

1. The “Blogs for Ziegler” picture described in the Sitter complaint was not paid for by Judge Annette Ziegler for Supreme Court.

2. Judge Annette Ziegler for Supreme Court did not purchase any advertising on the Boots and Sabers blog.

3. On information and belief, the “Blogs for Ziegler” picture was put up by the administrator of Boots and Sabers on his own.

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.

5. Because Judge Annette Ziegler for Supreme Court did not pay for the “Blogs for Ziegler” picture described in the Sitter complaint, there was no violation of Chapter 11 of the Wisconsin Statutes, and no obligation on Judge Ziegler’s part to report anything.

 

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 “Slogs 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. It is precisely this use of a communication medium that gives one candidate an unfair advantage over another. A promotion is giving something of value to a candidate that other candidates would have to purchase. A promotion is a contribution. Chapter 11 strictly regulates contributions for a political purpose as including “anything of value” which “means a thing of merchantable value.” Wis. Stat. § 11.01(6). The Boots and Sabers promotion of Ziegler for Supreme Court falls under a heading of Promos and would need to comply with the requirements of Wis. Stat. § 11.30 mandating the disclosure of who paid for or sponsored the promotion or advertisement.

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 identity of the provider is not known. The advertisement is found under the section title of “Promos.” Promo is defined as: “A promotional presentation, such as a television spot, radio announcement, or personal appearance.” The American Heritage Dictionary of the English Language, Fourth Edition, Updated 2003. Found at: http://www.thefreedictionary.com/promo Furth.er, Answers.com lists a second definition of Promo from Barrons Marketing Dictionary. It states: “In broadcast, a local or network spot offering a short promotional message about an upcoming broadcast program; also called promotion spot.” Consistent with these definitions the Ziegler “Promo” found on Boots and Sabers website qualifies as an advertisement.

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.

 

Did you get all that?  She thinks that because the column header said “Promos,” our endorsement somehow becomes an advertisement.  How about next election, we title the column “Get a Life, Monica Sitter”?  Would that be an advertisement?

To which Ziegeler responded thus:

Again, Judge Ziegler did not request that Boots and Sabers place the image on the blog.  Nor did Judge Ziegler for Supreme Court pay Boots and Sabers for placing the image on the blog.  As stated previously, the practice of bloggers including images of support for candidates is very common with blogs on all sides of the political spectrum.  In none of these cases has the State Elections Board called for disclaimer on these voluntary placements of support.  Would Ms. Sitter call for a disclaimer on every voluntary and free expression of support for a candidate?

 

Would Ms. Sitter call for a disclaimer on every voluntary and free expression of support for a candidate?

Methinks she would, as long as it’s not her candidate.

Want to see just how absurd campaign finance reform has gotten?  This is from Lisa Goldman, counsel for Ms. Sitter.

However, on the points raised in Ms. Sitter’s complaint federal regulations are clear—they forbid both advertisements without proper disclosures.
 
Regarding the Boots and Saber’s advertisement promoting the election of Ziegler to the Wisconsin Supreme Court, the FEC explanation states, “While the Commission recognizes that online business practices for the charging of ad space vary greatly from one website to the next, the Commission would also like to make clear that when the customary business practice of a particular website regarding the payment for space is not followed, the vendor is making an in-kind contribution.”  FEC Memorandum, Final Rules and Explanation and Justification for the Internet Communications Rulemaking, 3/24/06, Agenda Document No. 06-20, p. 41. 

 

She would like to see our personal endorsements treated as in-kind contributions.  WTF happened to free speech in this country?

 

(8) Comments
Posted by Jed at 1448 hrs
Law + Politics + Politics - Wisconsin

  1. If Rupert Murdoch decided to make a full page front page personal endorsemnt on each of his magazines and newspapers the value would very easily be clear.

    If you charge for space for some advertisers and give some their space for free you have made an in-kind contribution.

    The distinction needs to be in the difference between a personal endorsement and an “ad.”

    That B&S;accepts paid ads puts it in a different spot than The Happy Circumstance.  I could argue that nothing on my site was paid for and hence not “of value.”  (Insert jape here.)  Does taking the time to call it a personal endorsement isolate it from a complaint such as this?  Should it?  Does traffic make a difference?  Should it?

    I’m on your side.  I think the complaint was foolish and needlessly partisan.  It does raise some questions about drawing lines that will only become more contentious but I think the SEB got it right.

    Maybe a quick disclaimer that BlogX is not affiliated yada yada would be prudent in the future.

    Posted by .(JavaScript must be enabled to view this email address) on July 12, 2007 at 1650 hrs


  2. grumps,

    What’s different from posting a button on the blog than me telling people at a cocktail party that I support Justice Ziegler?  Nothing.  It’s just me telling people my opinion.  It’s just a matter of medium.

    Posted by Owen on July 12, 2007 at 1654 hrs


  3. Found at: http://www.thefreedictionary.com/promo Furth.er, Answers.com lists a second definition of Promo from Barrons Marketing Dictionary.

    Gee, don’t you think Wikepedia would be a more authoritative source to cite for Internet related “legal” issues?

    Site must have been down that day, huh Monica (whoever you are?

    Posted by .(JavaScript must be enabled to view this email address) on July 12, 2007 at 1706 hrs


  4. Hot dog!  I’m exhibit 1!  I always knew I’d be somebody.

    More seriously, I’m glad I made the decision a long time ago to keep the paid ads under a clear label and the endorsements I make under an equally clear label.  Obviously, it’s what save my ass from having to hire you, Jed.  smile

    This question:

    Would Ms. Sitter call for a disclaimer on every voluntary and free expression of support for a candidate?

    is an interesting one, especially in light of the arguments around me and your reading of her counsel’s argument at the end.  I think my practice—of making obvious distinction between ads and editorial comment—is an appropriate way to go and actually mirrors FEC blog regulations as explained here.  I think bloggers ought to take as much precaution as possible so as not to seem to be offering anything in-kind.

    In the end, the SEB was right, and I’m glad there’s that precedent.  I’ve tried working on My State Representative about copying the FEC guidelines for state and local races, but he hasn’t gotten all that excited about it.  Yet.

    Posted by folkbum on July 12, 2007 at 2041 hrs


  5. I agree with you, Owen, but you’ve created a space where you give opinions in exchange for money (the ads.)  I see a need for a clear separation between the ideas which are compensated and the ideas which are your own.

    This isn’t a new concern.  Lowell Thomas and Roy Leonard were masters at reading an ad as if it were content on their radio shows.  It was sometimes tough to tell where the paid advertising started.

    Posted by .(JavaScript must be enabled to view this email address) on July 13, 2007 at 0633 hrs


  6. We don’t give opinions in exchange for money.  We have never accepted a dime for our opinions.

    Posted by Jed on July 13, 2007 at 0725 hrs


  7. I have no doubt of that.  But, would the casual reader be able to tell that you make the distinction?

    Posted by .(JavaScript must be enabled to view this email address) on July 13, 2007 at 1623 hrs


  8. I would think the casual reader could tell what’s an ad by the fact that it says “Blogads” over our ads.

    Posted by Jed on July 13, 2007 at 1627 hrs


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