Clash of the Titans

The liberal blogosphere and the polling-nerd community were rocked yesterday when Markos Moulitsas, founder of the liberal superblog Daily Kos, announced he was suing Research 2000, the site’s polling contractor, for fraud. A report by three statistical analysts concluded that the results that Research 2000 turned into Daily Kos “could not accurately describe random polls”—the data, they wrote, produced trends that were too smooth and consistent to be believable. Research 2000 has denied the claims and issued a cease-and-desist order to the polling-analysis site FiveThirtyEight, where founder Nate Silver has written about his own concerns about Research 2000’s data. The signature on that letter, and Daily Kos’s council, give a hint of—issues aside—how tense and interesting this legal battle could be.

Research 2000’s lawyer—and the signatory on that cease-and-desist letter—is Richard W. Beckler of the law firm Howrey. It’s clear why his government experience would make him attractive to Research 2000: Beckler was former chief of the Justice Department’s criminal-fraud section, and he’s done a wide variety of fraud work in his private practice. But he also has something of a political pedigree. Beckler defended former national-security adviser John Poindexter in the aftermath of the Iran-Contra affair. After Poindexter was convicted, Beckler appealed on the grounds that Poindexter’s testimony to Congress—provided after he’d been promised legal immunity—should not have been used against him at trial. Beckler and Poindexter won the appeal and set a significant precedent that congressional grants of immunity stand up in legal proceedings.

On Daily Kos’s side is Adam Bonin of Cozen O’Connor, a lawyer with deep connections and experience in the political blogosphere. He chairs the board of directors of the Netroots Nation conference, cochairs the Philadelphia Lawyers’ chapter of the American Constitution Society—the liberal answer to the Federalist Society—and is a featured writer on Daily Kos. And like Beckler, Bonin has taken on unique cases and defenses. He represented Daily Kos and the liberal political blog Eschaton before the Federal Election Commission during considerations of whether political speech online should be regulated and won. The FEC eventually ruled that the Internet needs to be recognized “as a unique and evolving mode of mass communication and political speech that is distinct from other media in a manner that warrants a restrained regulatory approach.” And Bonin represents insurance companies that are suing al Qaeda financiers to recoup damages from September 11, 2001.

The issues at stake in the Daily Kos/Research 2000 dustup have significant implications for polling and transparency. And with Bonin and Beckler at the forefront, the case is bound to be more interesting still.

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