Law Blogs and the First Amendment

Back after lunch.

Glenn Reynolds talks about libel. [Note: I missed blogging part of this as my Mac rebooted. Isn’t this supposed to be why Apple’s OS trumps Windows?] He points out that blogs quickly and prominently correct errors, limiting harm from defamatory postings. Since they’re open to everyone, Tornillo-style regulation is superfluous. He also cites the becoming-infamous Maine blogger libel suit.

Eugene Volokh covers extraconstitutional speech protections. He notes that freedom of speech is not limited to the First Amendment, and cites the potential protections of Larry Lessig’s other modalities of regulation – not just law, but also markets, norms, and architecture / code. A norm in the U.S. protective of speech is the perception that it’s wrong to retaliate against people for relatively mainstream views. He also looks to academic freedom, Section 230 of the Communications Decency Act (47 U.S.C. 230), anti-SLAPP statutes, libel retraction laws, the media exemption from campaign finance law, the journalistic privilege, and press credentials in covering certain high-profile events. Moreover, there are laws protecting speakers against private retaliation by employers, such as for political activity (CA, LA, SC) or any off-premises lawful activity (CO, ND). Extra protection against government varies by medium. We have to consider the value of the speech when examining protection (or a regulation that might impinge upon it). The journalist’s privilege exists because we think speech from confidential sources is particularly valuable. He thinks the analogy of blogs to newspapers is incorrect and not helpful – the better parallel is magazine articles or op-ed pieces (which have strong protection). Blogs increase diversity of perspective, knowledge bases, topics, and ownership, as well as serving as a check / balance. The broader these legal protections, the greater the harm to countervailing government interests (evidence-gathering in court, for example). The worry about the journalist privilege is line-drawing: if anyone with a blog is a journalist, we’ll place a lot of information out of bounds. Hence, we might need the privilege to vary with readership / audience. (States vary in how much they discriminate in protection by medium – depends on legal definition.) Is medium discrimination constitutional? For government provision of benefit – must only be viewpoint-neutral and reasonable. For exemption from a content-based speech restriction: strict scrutiny. For exemption from a content-neutral speech burden (for example, section 230): it’s not clear.

Eric Goldman talks about liability for bloggers. These issues also arise in situations of co-authoring books – blogs aren’t unique. He focuses on co-blogging. The law doesn’t handle joint, coordinated multi-person activities that aren’t commercial particularly well. Eric cites the open source movement, or corporate volunteers (people who work for companies for no pay). He puts forth two scenarios: group blogging or guest blogging, and co-blogging. Group blogging is pervasive, but the law doesn’t have a good model for it. Partnership or employment law might theoretically apply. Eric thinks that co-bloggers could face complications. Section 230 immunizes bloggers, generally, from liability for what commenters post. In co-blogging, though, 230 might not apply – content might be characterized as provided by a partner or an employee. Plaintiffs might try to take advantage of this. Bloggers may not own the posts they create, limiting their ability to withdraw or distribute this content (especially if they’re considered an employee, since the work for hire doctrine kicks in). The posts might also be collective works (see 17 U.S.C. 201(c)). There probably won’t be much litigation over blogging, though, especially since there’s little cash to fight over. In terms of ownership, private ordering may mitigate the need for suits. There are unanticipated risks: bloggers might die, leaving their estates to fight over assets, or third parties might sue. Prophylactic steps for co-bloggers: document their relationship via agreement, form a limited liability entity, and engage in safe blogging (trust your co-bloggers). He wants blawgers to lead by example with safe practices.

To the comments:

Betsy Malloy is a co-blogger with Tom Mayo. She focuses on a group of bloggers who have received more limited protection: anonymous bloggers. How does the First Amendment apply to them? The U.S. has a tradition of protecting anonymous speech, among other reasons due to concerns about the tyranny of the majority. The Supreme Court has struck down statutes requiring pamphleteers to disclose their names. Anonymous posting also mitigates source bias. Finally, bloggers might feel more free to discuss some topics since they won’t be labeled based on stereotypes or other characteristic-based judgments. The risk, of course, is defamatory speech. Hearings to unmask anonymous bloggers don’t protect writers particularly well. She cites the Delaware defamation case of anonymous criticism of a city councilman. Being too ready to unveil bloggers’ identities can create a chilling effect that undercuts speech we value…

Daniel Solove talks of a tale of two bloggers, who blog about Congress and sex. One is Eugene Volokh. The other is Jessica Cutler of the Washingtonienne. He points to Glenn’s book An Army of Davids, and says we have a rather romantic vision of who David is (Eugene, not Jessica). 50% of blogs are written by people under 19, and 20% of teens with Net access blog. Most blogs are, in effect, diaries. Gossip on-line becomes permanent, widespread, and easily accessed. It may be hard to engage in self-exploration if all of our missteps are recorded. Daniel thinks that most Internet views on this are quite libertarian; he doesn’t think there’s an unfettered right for Jessica to talk about other people’s lives. If we confer power on David, we should hold him / her to some standard of care. The law tends to protect strongly speech on-line. Daniel thinks the prevailing interpretation of Section 230 creates the wrong incentives and allows bloggers to be irresponsible. He’s worried about privacy issues. Legal regulation thinks implicitly about Eugene, but should pay more attention to Jessica.


– (Jim Lindgren) Should / could Jessica be sued? She’s publishing true information about her personal life. A: (Daniel) It’s contentious, but the tort of disclosure of highly offensive private details would likely apply. He doesn’t see these details as of legitimate concern to the public. (Eugene) Difficulty is that the tort is written vaguely: it’s not clear on guidance to the speaker. What about cases reporting on people’s past crimes? Some of Jessica’s stories seem to allege receiving money for sex – which is, after all, unlawful. (Daniel) Line-drawing problem. It’s hard to come up with a bright-line rule when dealing with privacy. Is free speech absolutism better or worse than a fuzzy line with greater privacy protection? Since these cases are relatively rare, there is a smaller body of case law to provide answers / standards. (Eugene) What about publishing information that’s public record – for example, he finds out Bambauer is a closet Communist? What do we give up under this rule? (Daniel) It depends on the newsworthiness of the information.

– On journalist privilege: would it make more sense to focus on the functional activity (intent to gather news) as the metric, rather than readership? Risk is penalizing unpopular bloggers – contrast this to lone pamphleteers. A: (Eugene) If the blogger speaks only to a few people, there’s less benefit to the public. He notes that state privileges apply to grand juries and other contexts (petits juries). Eugene puts up the NY Journalist Privilege: absolute for anyone who for gain / livelihood writes news intended for a professional medium that has regular function processing news intended for public dissemination.

– Some people feel they need security in blogging (e.g., Baghdad bloggers). A: (Betsy) Most defamation claims are in state courts, and the standards vary greatly (some states have very low standards). The First Amendment should apply early on to protect the blogger. (Eugene) What if there’s a plausible showing of defamation? (Betsy) Not just a plausible showing (summary judgment standard), but also a balancing test of harms. She states that courts don’t tend to examine the value of the speech at issue (war reporting vs. stock tips) – there should be variable protection based on the post’s content.

– Balancing of Section 230 considerations: promote self-regulation vs. protecting intermediaries. A: (Eric) Congress drafted badly. He thinks the caselaw is unclear, but that Congress intended to promote efforts to clean up the Net (porn, etc.). (Eugene) CDA attempts to overturn Stratton Oakmont and Cubby; Cubby involved Compuserve, which didn’t filter. Thus, it makes sense that Congress tries to protect those who self-police, and also undo Stratton to protect those who don’t filter.

[OK, that’s it – gotta run.]

One Response to “Law Blogs and the First Amendment”

  1. […] It’s not up to Lithwick’s usual standard — it might have been chopped up in the editing process. She sets up law professors (and bloggers) Eugene Volokh and Daniel Solove (of Volokh Conspiracy and Concurring Opinions respectively) in their familiar roles opposing and supporting greater privacy protection for subjects of public reports. They made some of the same points in greater detail on a panel at the Berkman Center’s Bloggership conference last spring. […]