It's midafternoon and I've got the exit-poll numbers from today's Virginia primary. I'd love to publish them, just as I have for the last three presidential primaries. But I can't. The lawyers from the Voter News Service--the ABC News, CBS News, NBC News, Fox News, CNN, and the Associated Press media consortium that produces the exit polls--have threatened to sue Slate if we continue to do so.
While my heart lusts for a battlefield pulped crimson with bodies from the legal departments of Microsoft and VNS, we have capitulated. Although we think VNS is stupid and wrong to want to keep this information secret, and to use the law against a publication that dares to disagree, the question of their legal right to do so is more complicated. So we stand censored.
For those joining the exit-poll controversy late, here's a quick primer: VNS polls a sample of voters after they cast their ballots. By combining these exit-poll results with historical data, real returns from sample precincts, pre-election polls, and the tail of a newt, VNS and the broadcasters predict--or to use their preferred terminology, "project"--winners of the various contests.
The VNS information cartel suppresses exit-poll data and waits until polls close to project winners because they fear members of Congress who say such news depresses voter turnout. (Take my word for it, there's no sound evidence that it does.) What the broadcasters fear most is that the government will pass pestering laws against exit polls. After that, they worry that the government will ultimately mess with their federal broadcast licenses. In a compromise struck with the government in the mid-'80s, the information cartel requires its members to keep the exit-poll data secret until the affected state's polls close.
Some secret! On Election Day, newsmen sanctioned by VNS break the embargo again and again, ladling the numbers out to the political and media elite who then pass the numbers along. (One political scrivener of my acquaintance telephones his White House sources for the numbers!) And all of this embargo-busting predates the Internet. In 1988, veteran pollster Warren Mitofsky was already talking about the "underground commerce" in Election Day exit polls.
So, when Slate started publishing exit-poll numbers as we received them, our motivations were many. First, we wanted to expose the TV anchors and talking heads as actors--rotten actors--who feign ignorance about the election's direction. Most election-night coverage, down to the fancy spinning video effects and the high-tech sets, is pure theater. The real story is usually over by dinner time, and the networks know it. But--seeking to extend the cheap drama while not offending the government--they filibuster on.
Second, and most important, we wanted readers to know that the broadcasters suppress the news--the exit polls--out of fear of government retaliation. This self-censorship is the real fraud. If the American voter is mature enough to handle tracking polls the day before an election, he's mature enough to handle exit polls at 2 p.m. the day of an election.
In threatening legal action against Slate, the biggest arrow VNS's lawyers drew from their quiver was a thing called the "hot news doctrine." The hot news doctrine grows out of a 1918 case that prevents free-riders from pinching news from the wire services while the news is still "hot." The ironies of the VNS hot news claim are so rich they deserve enumeration:
1) If VNS reported its exit polls in a timely fashion, one could have sympathy for their hot news claim. Instead, they're invoking the doctrine to shield their news until its temperature reaches absolute zero.
2) Ordinarily, VNS members wave the First Amendment flag against all comers. But in the case of the exit polls, they issue threats of legal action to suppress the news.
3) If VNS ends up prosecuting a hot news claim, how happy will its members feel if the result is a legal precedent that comes back to bite them in the ass? If media corporations can claim that information they produce is "hot news" and therefore the government must help them suppress it until it's cold, non-media corporations can make the same claim.
Anyway, the exit-poll genie is now out of the bottle. I wish VNS the very best of luck in policing the Internet this election season to prevent the posting of the exit-poll numbers. Early this afternoon, in fact, the National Review Web site posted the early exit-poll figures from Virginia.