Businesses marketing their goods on television in the ’50s often included fun gimmicks in their advertising campaigns so as to disguise to impressionable consumers that what they were watching, whether broadcast as a feature program or as a word from the sponsor, were essentially commercial vehicles designed to sell products. For example, the children’s serial, “Captain Midnight and the Secret Squadron” promoted the sale of Ovaltine® through the introduction of secret de-coder rings, which could help the viewer to decipher the puzzle offered up weekly by Captain Midnight. To obtain this de-coder ring, you just had to join the Secret Squadron. And to do that, “First, get a jar of the official Secret Squadron drink, delicious chocolate flavored Ovaltine®, the food drink for rocket power. Then cut out the wax paper disc that covers the Ovaltine® jar. And send that disc with your name and your address to Captain Midnight.”
(For an interesting history in the chronology of the product and the companies that owned it, see
The bad news is, “DE-CODER RINGS” won’t be sending out any such costume baubles. But the good news is, it provides you, instead, with a ‘gimmick’ that is genuinely priceless. Because it will enable you to decipher the true nature of those familiar images which are part of the brilliantly conceived and phenomenally successful sales and advertising campaign that gave us Barack Obama, the 44th President of the United States, under various iterations including (in chronological order) “Barack Obama”; “Obama for America”; and “Organizing for America, a product of the Democratic National Committee” (“DNC”). Plus, you won’t have to send me your personal information before obtaining this Rosetta Stone. Nope; you just have to read some selected provisions of the U.S. Code.
So, what is the U.S. Code, anyway? Here’s the definition on the web site of the Government Printing Office (“GPO”): “The United States Code is the codification by subject matter of the general and permanent laws of the United States.”
In other words, the U.S. Code is the systematic compilation of all of the federal civil and criminal laws of the land.
DE-CODER RINGS is presented in two (2) parts. Part (1 of 2) addresses what the Code has to say about the legal nature of electronic political advertising campaigns like the one copyrighted and commonly known as “Fight the Smears,” and begins a discussion of the legality of posting on these political advertising sites images such as the Certification of Live Birth (“COLB”) which appears on various named internet sites carrying that ad campaign. Part (2 of 2) completes the discussion of the criminal implications of producing and distributing the electronic image of that COLB and then compares and contrasts the legal implications of presenting such an electronic image, with the laws that would apply to any future production and/or transfer of hard copy images of either an officially released COLB or an actual Birth Certificate.
As you read DE-CODER RINGS (1 of 2) and (2 of 2), notice that the key to unlocking the legitimacy of political advertising, whether in the form of electronic images or hard copy, cannot be found by micro-analyzing the minutia of its visual presentation, but in realizing that the production and transfer of either electronic images or hard copy documents by anyone, whether in conjunction with a political ad campaign is likely governed by and, therefore, inextricably linked to maintaining compliance with provisions of the U.S. Code.
Discussion of the Federal Laws Governing Paid Political Advertising
In June 2008, Barack Obama, then still struggling to bamboozle Democratic voters (and the rest of the country) into buying into the meme that with the primary/caucus contests ended, there was no way Hillary Clinton could possibly still win the D Presidential nomination; publicly launched “Fight the Smears” (“FTS”), the web site his supporters had prepared several months earlier. Admittedly, part of the reason he and his marketing team were flailing miserably is that rumors had surfaced questioning whether he was even Constitutionally eligible to become the President. So, on June 12, FTS was publicly launched, putting his name – literally – on this electronic platform containing an image imprinted with the title, “Certification of Live Birth,” which image both the candidate and others associated with his quest for the nomination claimed was his “Certificate of Live Birth.”
(Here is an interesting side note. When I posted COUP (1 of 3) way back in August 2010, I posited that while only publicly unveiled in June 2008, FTS had been conceived and concocted well in advance.
For months now, rumors had been swirling that Obama was not Constitutionally eligible for the job. Specifically, he is not a “natural born” citizen, one of three requirements listed in Article II, section 1 of the U.S. Constitution. Then Communications Director Robert Gibbs (now WH Press Secretary) had come up with a seemingly brilliant on-line advertising campaign under the banner, “Fight the Smears,” designed to counter these mounting speculations. The focal point of the ad campaign was an image of a mock-up “Certification of Live Birth,” listing Obama’s place of birth as “Hawaii.” (It was even appropriately redacted so as to give the appearance of protecting the candidate’s privacy.) Ad copy accompanying the image reassured the public, this proves he is a “native” citizen. At the bottom of the page, in the footer, appeared the sort of attribution required by the U.S. Code for all political advertising expenditures: “PAID FOR BY BARACK OBAMA.”
Designing a political ad campaign such as “Fight the Smears” ‘to be used only in case of emergency’ was one thing; but actually rolling it out was another. Because its success gambled on the truth of this one contemptuous statement: American voters are too stupid to know that there’s a difference between “natural born” and “native”; and that “Fight the Smears” is nothing more than a PAID POLITICAL ADVERTISEMENT, anyway. Understandably, the Obama team held back on the nuclear “Fight the Smears” option for as long as it could.
By obtaining the computer source code for that FTS page, loyal “jbjd” reader “azgo” proved I was right. (“I use Firefox as my search window, I press down on the icon on the left side of the address bar at the top of the window. A box appears with a “More information…” button, then I click and get the “Page Info” window as you see below.”) Pay special attention to lines 8 and 9.)
Advertising copy on the FTS campaign launch asserted once and for all, this electronic image of the COLB would “fight” the “smears” that the man who would be President of the United States was not a Natural Born Citizen by “prov[ing]” he is “native” born. (I know, this made no sense on its face, as the Constitutional language in that one provision pertaining to eligibility – Article II, section 1 – does not state that being a “native” “citizen” confers eligibility but only being a “citizen” who it describes is “natural born.”) I have been characterizing FTS as paid political advertising that was only designed to persuade consumers to buy (into) the product (candidate) Barack Obama. As evidence of this claim the web site is nothing more than political advertising, I pointed out the ever-changing accreditations in the footer of the site, which changing credits correspond to Obama’s altered political status – nominee wannabe -> nominee -> President-elect/President – as required by the U.S. Code.
Let’s further examine the legality of what we already know about the contents of FTS, in light of that Code.
DISCLOSURE OF FEDERAL CAMPAIGN FUNDS
- § 431. Definitions
- § 432. Organization of political committees
- § 433. Registration of political committees
- § 434. Reporting requirements
- § 437. Reports on convention financing
- § 437c. Federal Election Commission
- § 437d. Powers of Commission
- § 437f. Advisory opinions
- § 437g. Enforcement
- § 437h. Judicial review
- § 438. Administrative provisions
- § 438a. Maintenance of website of election reports
- § 439. Statements filed with State officers; “appropriate State” defined; duties of State officers; waiver of duplicate filing requirement for States with electronic access
- § 439a. Use of contributed amounts for certain purposes
- § 439c. Authorization of appropriations
- § 441a. Limitations on contributions and expenditures
- § 441a-1. Modification of certain limits for House candidates in response to personal fund expenditures of opponents
- § 441b. Contributions or expenditures by national banks, corporations, or labor organizations
- § 441c. Contributions by government contractors
- § 441d. Publication and distribution of statements and solicitations
- § 441e. Contributions and donations by foreign nationals
- § 441f. Contributions in name of another prohibited
- § 441g. Limitation on contribution of currency
- § 441h. Fraudulent misrepresentation of campaign authority
- § 441i. Soft money of political parties
- § 441k. Prohibition of contributions by minors
- § 442. Authority to procure technical support and other services and incur travel expenses; payment of such expenses
But trust me, by applying just the following select sections of the Code involving political advertising funding credits, to “FTS,” you will begin to develop an understanding as to the interplay between law and practice.
- § 441d. Publication and distribution of statements and solicitations
“azgo” volunteered this U.S. Code reference prototype to simplify your analysis. (Just a word of caution. By citing to particular provisions found in the Code, I am not claiming that these exclusively govern political campaign advertising. I merely intend to illustrate the point that, an explanation underlying the advertising copy visible on the screen, can be found in the Code.) The quoted accreditations appeared in the footer of the FTS web page, evolving along with the corresponding political status of Barack Obama, in parentheses. The provision of the Code satisfied by that wording follows.
- “Paid for by Barack Obama” (D Presidential nominee wannabe) = complies with § 441d. (a) (1).
- “Paid for by Obama for America” (nominee) = complies with § 441d. (a) (2).
- “Paid for by Organizing for America, A Project of the Democratic National Committee, 430 South Capital Street SE,Washington, D.C., 20003. THIS COMMUNICATION IS NOT AUTHORIZED BY ANY CANDIDATE OR CANDIDATE’S COMMITTEE” (Emphasis added by jbjd) (President-elect and President) = complies with § 441d. (a) (3).
Okay, get that? Based on this rudimentary analysis of the disclosure of its funding sources, the electronic political advertising platform called FTS meets the legal requirements spelled out in this section of the U.S. Code. Yep; nothing in this section of the law requires that what is said in these publications or solicitations must be true. It just says, you have to disclose who is paying for the words.
So, does this mean, the Code condones the “production,” “transfer,” or “possession” of any document incorporated into such political advertising, including a mock-up or image thereof of any documents advertisers variously claim is either an official “Certification” or “Certificate” “of Live Birth”? Hardly. Only, that’s not dealt with in Title 2 of the Code but in Title 18, Crimes and Criminal Procedure, Part I, Crimes, Chapter 47, Fraud and False Statements, §1028, Fraud and related activity in connection with identification documents, authentication features, and information.
This aspect of the legality of conduct related to political speech will be covered in DE-CODER RINGS (2 of 2).