Shadow Government: Private Regulation, Free Speech, and Lessons from the Sinclair Blogstorm

Abstract

This paper analyzes the apparently emerging phenomenon of private regulation through ad hoc online coalitions. It evaluates the online cost structures that permit and shape the collective action underlying this phenomenon. It also evaluates the motivations and capacity necessary in particular circumstances to inspire such regulation. The paper concludes that a necessary motivation is the perception of both a market and a government failure, and the necessary capacity is essentially a function of willing participants. As this paper's primary case study targeted speech, many of the paper's conclusions are particularly relevant for future instances of private speech regulation. As a result, the paper addresses some normative implications of campaigns aimed at private speech.

The primary case study centers on the online coalition that coalesced and dissolved around the acts of Sinclair Broadcasting Group less than a month before the 2004 presidential election. The onling campaign attempted to punish a private party; other campaigns in the following weeks attempted to aid other private parties. All such campaigns will become more common. This paper attempts a first analysis of their mechanisms, possible effects, and implications.

Keywords: Private regulation, free speech, collective action, peer production, online communities