Hands off blogs: Mandatory disclosure of “blogola”?

First published in the New Jersey Law Journal on January 26, 2007:

No one is free from bias of some sort or another, especially people who spend their time (paid or otherwise) writing opinions — whether in daily newspaper columns, legal newspapers or blogs, the newest, most exciting and most democratic medium of expression in the real and virtual worlds.

Opinion writers are understood by axiom to have an opinion; and it is just as axiomatic that opinions can be “negotiable” in all sorts of ways, overt and subtle.

Yet in the emerging world of blog publishing, there is a troubling trend toward mandatory disclosure of one kind of bias — the kind directly attributable to payment of material compensation to a blogger addressed specifically in a Dec.7 Federal Trade Commission informal opinion involving a company called PayPerPost Inc. — that is misguided, contrary to free speech principles and a threat to the growth of a dynamic economic and cultural phenomenon.

Almost two years ago, the blogosphere — the community, or group of communities, of ardent blog writers, commentators and readers — hiccupped with the discovery that a top liberal blogger, Markos Moulitsas Zúniga, of the DailyKos.com blog, a vocal supporter of the Howard Dean campaign during the 2004 election, had been a paid consultant to Dean. The blogosphere erupted with that characteristically exaggerated self-importance bloggers love to show, in this case in a debate over whether, how and what had been disclosed.

The discussion was led in part by a leading blogger of the center right, law professor Glenn Reynolds of Instapundit.com. Reynolds wrote, as to the standard of disclosure, “[T]he issue is a cultural one more than a legalistic or formally ‘ethical’ one. I don’t want a Code, which people will promptly lawyer to death. . . . I want attitudes and norms.” Other bloggers chimed in that indeed, no one wanted rules and regulations — bloggers are a notoriously libertarian group — and that there should be a community standard mandating “transparency.”

Commenting at Reynolds’ blog, and continuing the discussion on my own blog, I expressed my skepticism about the need for or value of a disclosure “norm.” I argued that being paid to express an opinion is not so different from being affected by one’s likelihood of getting tenure, a promotion or a choice committee assignment. The real difference between bias occasioned by cash and that occasioned by social, professional or other ambition is that one is merely liquid, and this distinction did not by itself prove a need for a particular standard of disclosure or transparency.

This issue has arisen again in light of a new level of involvement by the FTC in what is done and said on blogs. PayPerPost Inc., which directs payments to bloggers willing to write about its clients’ products for payment, agreed in December, in light of that FTC informal staff opinion, to require disclosures by its pay-to-say bloggers.

Another “credibility” bubble emerged at the same time when it was learned that Microsoft had provided free laptop computers to certain bloggers and columnists who write about technology to induce them to write about new Microsoft products.

There is no free-speech exemption to fraud and consumer protection laws, and blog communications are no more entitled to be materially misleading or deceptive than door-to-door salesmen, telephone marketers and infomercials. But the FTC and other agencies should not repeat the error made by many courts early in the history of the Internet, especially in the area of trademarks, of assuming (without proof) that Internet communications are somehow more intimate or compelling, and users more amenable to being deceived, than other forms of expression.

To the contrary, the Internet is known by consumers to be the most wide-open forum of communication, information and symbols, pleasant or otherwise, ever enjoyed by a civilization, and as pure a test of our vaunted belief in the marketplace of ideas as has ever been experienced.

Blogs are an effective and powerful new medium. The key to their development is not to protect them from themselves but rather to permit them to be what they are: free and unfettered. Blog readers and regulators alike need to trust the market and their own common sense, and reach for the opiate of regulation last, not first. Consumers of blogs have to be skeptics and take advantage of the opportunity for self-education provided by the blogosphere in unprecedented scope.

Those who disclose more, and more accurately, will be more trusted on that account. Ultimately all a blogger, a lawyer, a politician or anyone else has is his persuasiveness, his intellectual honesty and a track record of trustworthiness. In the pure market of expression, that is all the regulation needed.