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©2005 Perkins Coie LLP

Law firm website
by eLawMarketing

"1984"
Posted: 3/22/07

     So what is behind this now concluded investigation into the "mystery" of the "1984" video?  It is not quite a scandal, but is it perhaps more than a good “story”?  A flap? A kerfuffle? A “controversy?”  And if any of these, then what is it about? 

  It appears for some to be the occasion for fretting about the danger posed by the Internet to the imperative of “disclosure”.  A story on point appeared in the LA Times, , and the reporter drew from Carol Darr, a specialist, the surprising remark that disclosure protects us against the risk of foreign interest influence over our elections. Over the course of the day, the election law listserv also carried a vigorous exchange about accountability for online speech. 

  Some had to know, then, who created this ad. Now we know: what had been hidden was revealed, and it was evident from the intense attention to the question  of authorship that it was important—legitimate, appropriate, essential—that the spirit behind this bit of cyberpolitics be flushed out of hiding.

  A number of explanations, some held in conjunction with others, are generally offered for this gnawing fear of run-away Internet politics untamed by disclosure.  These are:

    1. "Disclosure" of the identity of political communications is justified by sound policy: some allege a right to know who stands behind a communication because this knowledge is useful in evaluating its truthfulness or judging its merit.  This has always had the faint ring of good sense, and it is a popular claim for that reason, but it makes little sense at all.  

   An argument is fully open to evaluation without attention to the person making it.  In fact, this is evaluation on the merits; it is precisely to keep the argument focused on the merits, not judged by the appeal or reputation of the author, that some authors choose not to reveal themselves.  It has always been remarkable that proponents of “deliberative democracy”, with their emphasis on reasoned debate, will favor a style of argument that forces reason into the background while propelling personal authorship to the foreground.

  On the case of this video, this argument is especially specious.  The “l984” made no factual claims; it was pure personal impression—the expression of a personal response to a candidacy. Now we know who created the video.  So in what different light will we now see this video?

   2.  Then there is the excuse that we need to hold "negative" speech accountable. Would there have been such a stir, and a hunt for the author, if the ad had been a wholly positive piece about Obama?  Of course not: it was “negative”, an “attack”, requiring the malefactors responsible for it to answer for themselves. Of course, one person’s criticism is another’s “attack”. But no matter: by playing on the disapproval of “attacks”—on the perception that a critic who does not speak openly is a coward who evades responsibility—the proponent of disclosure hopes to make the case .

   3.  Others say that we need to know who paid for such ad because it might have been a corporation or a rich man or a foreign interest, all looking to exploit their wealth for singular political influence. But it was known that “l984” could have been done for a song, which it was. And it was not placed for payment; it was created and put out for public viewing on blogs, YouTube and via email transmittal.

  Such are the reasons for chasing the author of “l984” and for the worried ruminations about online anonymous speech.  The author has said that he has given up his job, to avoid harm to his employer and to its clients.  He has also said that “This ad was not the first citizen ad, and it will not be the last.”

   Attention Citizens!  If any of you, like the now exposed ad creator, has also  made an “ad on a Sunday afternoon in [their] apartment using… personal equipment (a Mac and some software), uploaded it to YouTube, and sent links around to blogs”,  please be on notice: we must know who you are. 

  This is the meaning of the ad, now the episode,  fittingly known as “l984”.

Bob Bauer

[Note: the views expressed here are only the author’s, neither authorized by nor coordinated with this or any other any firm client.]