Blogging and redistricting: What’s ‘fair’ is in the eye of the beholder

By Len Lazarick
Len@MarylandReporter.com

We’ve been told “Life is not fair,” but what’s “fair” when it comes to blogging and redistricting?

In the case of blogging, David Moon at Maryland Juice has gotten into an online argument with lawyers for Patch.com who sent him one of those snippy “cease and desist” letters for picking up some content from Patch on his website.

Often bloggers and others are deterred when lawyers from big firms like DLA Piper send threatening letters, and actually stop what they’re doing, but not The Juicer. As he does on other topics, Juice got in their face with a flippant pushback that mocked their complaint and told them he was not going to stop.

In his initial response, Juice positively referred to MarylandReporter.com and our policy of allowing full and free use of our original content by any media with attribution.

That’s how the Internet ought to be, Juice believes, and in our case, that’s what our foundation supporters want in order to provide more probing information about state government and politics.

But we also do a lot of “aggregating” in our daily State Roundup, and that’s where the legal concept of “fair use” comes into play. It’s here we take a much more restrictive interpretation of “fair use” than Juice does. We seldom use more than a line or two from an article in another source, often rewriting the information and attributing it both to the media outlet and the person who wrote it. We always link back to the original story, and we never use photos that are not in the public domain.

What constitutes “fair use” is a topic of great interest in the Internet age, and as participants in a recent roundtable at American University discovered, it is not a simple topic to pin down. Two professors at the university have been exploring the issue for some time, and Patricia Aufderheide and Peter Jaszi have been surveying journalists on the topic. You can read some of their work in an article they did on “Copyright, Free Speech and the Public’s Right to Know” as well as their book “Reclaiming Fair Use.”

Much of what is done on the Internet goes far beyond fair use, not just by unpaid bloggers but by other aggregators, such as Mike Allen’s daily Playbook on Politico.com, which often quotes articles at length.

What’s fair in redistricting?

In addition to Juice, what got me thinking about fairness was a statement from Maryland Democratic Party Chair Yvette Lewis after Republicans submitted petitions Thursday to put a congressional redistricting plan on the ballot.

“In the face of dwindling electoral success and political irrelevancy, Maryland Republicans have turned to the petition as a means to circumvent legislative procedure and impose their partisan agenda. The GOP attempt to overturn a fair, transparent and legal process, which was supported by the Governor and an overwhelming majority of the General Assembly, is nothing but a brazen attempt to hold onto political power despite being out of step with the values of most Marylanders.”

Was it a “fair” process?

The governor appointed a five-member advisory committee that included just one Republican, a former delegate who the GOP did not select. The map this committee came up with made it more likely that Republicans will lose one of the two seats in the U.S. House of Representatives they currently hold. Republicans typically get 35% to 40% of statewide votes and currently hold 25% of the U.S. House seats (two out of eight). To do this, the committee produced some of the most gerrymandered districts in the nation, and folks in Anne Arundel County wind up in four districts with little chance of electing a resident. Baltimore County, on the other hand, has three resident incumbent congressmen. This is fair?

(One member of the advisory committee, Richard Stewart, a token public representative with little real sway, was sentenced on Friday to two years in federal prison for not paying $4 million in taxes at his company.)

Transparent and legal?

Was it “transparent”?

The committee had multiple hearings around the state before it drew the lines, but it came up with its plan behind closed doors and held no hearing after it announced the plan. After a mere week of public comments, the governor tweaked the plan and submitted it to the legislature. Legislative committees held one long hearing on the plan that lasted a whole afternoon, then promptly approved it.

Was it “legal”?

A trio of federal judges did not overturn the plan, but in their opinion, the judges made clear that they thought some of the districts were ridiculous as drawn and would have made changes if the Supreme Court had given them more guidance. These districts would not likely survive if the same standards used for legislative districts were used.

Does a petition drive “circumvent legislative procedure”?

The Maryland Constitution gives the referendum to the people as a way to reject decisions by the legislature. No bill had been petitioned to the ballot for almost two decades, and only in the last year have Republicans created a process on the Internet that makes it easier to collect signatures.

There are already grumblings by Democrats that it is too easy to get things on the ballot, and there was already at least one bill in the last session that tried to make it more difficult.

And as to the vote by an “overwhelming majority” of the legislature: The Democrats with “an overwhelming majority” in the legislature supported a plan that screws Republicans among others. All 12 Republican senators and all 43 GOP delegates unanimously voted against the plan, with a handful of Democrats.

As for the GOP’s “dwindling electoral success,” as reported here May 25, Republicans now hold 158 local elected office compared to 157 Democrats. Republicans control all but six large jurisdictions in the center of the state, and they picked up six seats in the House of Delegates in 2010 while losing two seats in the state Senate.