Seeking Arguments Why Blogs Should Be Treated Worse Than the Mainstream Media:

I'm writing a law review article on whether bloggers should be entitled to various protections that mainstream media writers get -- the media exemption from campaign finance laws (which the FEC just said bloggers should generally get), the journalist's privilege, protection under libel retraction statutes, and the like. For this, I'd like to thoroughly canvass the various arguments why bloggers should not get such equal treatment. I know I've seen plenty, and I'm sure I can find some of them, but I'm afraid I might miss many.

I'd therefore like to ask for your help: Can you point me to arguments -- whether from professional journalists, academics, government officials (legislative, executive, judicial, or otherwise), or bloggers -- why bloggers shouldn't be entitled to the special protections offered to the media? Specific citations or URLs would be especially useful.

I am not looking for arguments that bloggers should be entitled to such protections, or that no such special protections should exist. I am only looking for arguments that they should be denied such protections. If you have some, please post them in the comments. Thanks!

Roger Schlafly (www):
I see 2 main arguments against having a privilege for bloggers. (1) Since compelled testimony is considered good for justice, then having more privileges means less justice. (2) Nearly anyone can pretend to be a part-time blogger, so it becomes too difficult to figure out who is truly deserving of the privilege.

Scalia's dissent in Jaffee v Redmond 518 US 1 (1996) has a discussion of whether the psychotherapist privilege should apply only to those who satisfy strict licensing requirements. Some similar considerations apply to a journalism privilege.

(I am a blogger myself, so I'd personally like to have the privilege, but I don't think that it is going to happen.)
11.17.2005 8:17pm
just me (mail):
This seems the simplest:

Anyone can be a blogger in two minutes, i.e., no barriers to entry. Thus, everyone can grant themselves whatever "special" protection is offered. If the whole purpose of a journalist's privilege (or whatever) is to treat them differently from "everyone else," then that collapses.

Biggest example: journalist's privilege against testifying. So I, as Evil Terrorist Plotter, set up my blog, and go about my plotting. And when I get caught, and am asked about my co-conspirators, I just say that any knowledge I have was gained in "interviewing" them for my blog. (And that I don't really know who co-conspirator Juan Non-Terrorist is, anyway. :-))

Question: under ancient pre-blogger law, what's out there on determining the "bona fide" journalist status, for purposes of such privileges, where they exist? Because much of the above "problem" exist for anyone with a copier, or mimeograph, and 10 copies of the Neighborhood Watch Bulletin (which I started just as the subpoena was headed my way!).

(N.b., I don't share any of the first view or the counter-args; this view; I just pass it along as a "reporter").
11.17.2005 8:20pm
DRJ (mail):
Good discussions of this issue can be found here: rebecca's pocket and here: Jay Rosen
11.17.2005 8:31pm
Blogging seems predominately opinion-based, whereas journalists are supposed to report.

In a way, a "Blogging" exception is too broad. It's kind of like a "TV" exception. Perhaps only blog-journalism should be protected... and perhaps it already is?

There may be a greater tendency for blogs to be narrower in scope, merely promoting a particular candidate or position.
11.17.2005 8:41pm
Nicklaus 2 (mail):
Professor V,

Are you trying to catalogue every instance of such arguments being made publically, or are you trying to catalogue the whole range of more or less respectable arguments against bloggers' special protection that could be made? Maybe both?
11.17.2005 8:48pm
Al Maviva (mail):
Because bloggers are free to engage in unregulated political free speech, something that the Court is basically hostile to and which is inimical to the First Amendment, which only truly protects lap dancing and people who say f*** the draft. I know that's terribly flip, but that's my read on the Court's gloss of the Amendment - the fringes have come to be so respected that the Amendment has come to resemble a legal donut - much more substantial on the fringes than it is in the center, esp. when it comes to that very central issue of political speech.
11.17.2005 8:54pm
Matt Barr (mail) (www):
No URL but maybe something to go on. The market of sources is perfectly capable of determining whether to trust a journalist or a blogger to go to jail rather than reveal a source's identity, so bloggers don't need a privilege, they need to cultivate trust. They should be denied this benefit because a market is better at getting the right answer than a bright line rule. (Of course, this also means journalists shouldn't have a privilege, but it is first an argument it shouldn't be extended to bloggers.)
11.17.2005 9:27pm
Adam (mail) (www):
Democracy21, the Campaign Legal Center and the Center for Responsive Politics argued before the FEC that bloggers could be too partisan in their aims to merit treatment as "press". Others (okay, me) argued otherwise.

In addition, the Institute for Politics, Democracy &the Internet argued before the FEC in June that to grant bloggers the rights as journalists would (a) eviscerate the line between journalist and activist, (b) open a huge loophole for corporations to speak about political candidates and (c) "the privileged status the press currently enjoys will
diminish. When that happens, an erosion of its most important privilege, its ability through shield laws to protect the anonymity of its sources, will surely follow. While the FEC has no jurisdiction over shield laws, a change in the rules defining the news media in one arena is bound to affect other laws. As the pool of those considered journalists quickly expands, it is inevitable that the media's fragile privilege to refuse to answer questions about sources posed by prosecutors and grand juries will narrow."
11.17.2005 10:29pm
Dave_in_Milwaukee (mail):
Incorporation as a corporate entity is the method by which personal responsibility for one's actions and statements is evaded by individual private actors, just like action "under color of law" is how personal responsibility for one's actions is evaded by people in government.

People who set up blogs, without first setting up a corporation (such as at least an LLC), are unlike the mainstream media, which are all organized as corporations. Bloggers who operate without having taken the minimal trouble and expense to construct an LLC corporate veil to separate their (personal) opinions from their personal assets, may not be entitled to the same degree of protection as media entities which have taken such trouble to construct such a veil of corporate separation.

Is registering to do a blog now considered the legal equivalent of creating a corporate entity, say equivalent to an LLC, in terms of isolation of legal attacks on assets, as a method of creating a firewall between personal assets and corporate assets? I have not heard this claimed yet, but would be interested in hearing such a claim argued.

As neither a lawyer nor (yet) a blogger, I am submitting this as my best understanding of how the system works. I'm an interested party in the sense of being "on the verge of blogging," but holding back to some extent due to concerns similar to this, and related concerns.
11.17.2005 11:13pm
ras (mail):
The only arg I can see against bloggers being treated as journalists is if journalists are then to be registered as an elite class of persons with superior rights to the rest of the people.

In that case, recognizing bloggers as journalists would indeed broaden those new rights beyond their initial, elitist intent.
11.17.2005 11:53pm
Since I think the principled differences are weak, the only justification is one of administrative convenience. This is not really an argument for why bloggers should be treated differently so much as a reason why they might be treated differently.
11.18.2005 12:28am
Jay Tea (mail) (www):
OK, I'm NOT a lawyer and I'm not citing an argument, but making it one here:

* * * * *

In traditional journalism, there are financial constraints and investments at play. It is simply too risky for those institutions (newspapers, radio and television stations, networks, magazines, etc.) to engage in sheer, reckless adventures in slander, libel, and fabrication. They have too much to lose to engage in such risky conduct.

A blogger, on the other hand, has no such constraining considerations. To use myself as an example: I don't even own the site on which I post, and my own financial situation is such that I am essentially "judgment-proof;" you can't take something from one who has virtually nothing. As the song goes, "freedom's just another word for nothing left to lose."

So since there is no innate constraints from either economics or society, bloggers are far freer to run amok and flout the laws and customs of responsibility and accountability. With that in mind, it is only appropriate that the law should have such means at its disposal to bring them up to a comparable level of accountability.

* * * * *

Geez, how do you lawyers do this on a regular basis? I just basically called for my own regulation and/or banning, and I feel dirty just doing it.

Actually, I might understand it a bit more than I'm letting on -- I'm also feeling a real rush of power for doing it. Is this you folks' dirty little secret?

11.18.2005 1:23am
Brian G (mail) (www):
Bloggers should be denied protections because it is inherently discriminatory and biased in favor of whites, and the government has a compelling governmental interest in diversity until the year 2028, just like Justice O'Connor said. After all, do you know of any Wiccan, peyote-smoking black lesbian bloggers that are the daughter of a share-cropper who can't decide what bathroom to use because they are unsure of their gender and uncomfortable in a heteronormative society? I don't. Therefore, the blogosphere discriminates against them and Congress has the power to regulate the blogosphere under Aticle I, Section 8.

Don't laugh. One could easily get 150-200 votes in the House and 30-35 in the Senate using this logic alone.
11.18.2005 1:55am
Wintermute (www):
I've been at this online electronic speech thing since the early 80's when Compuserve and privately, phone-line-networked BBS's were the only way to go; and I alpha-tested for a friend who wrote one of the main message reading, writing, and networking software systems that made it possible.

The most inportant issue has been responsibility for libel. There has been some movement in putting liability directly on the poster and holding the media harmless if at least some reasonable supervisory care is taken by the media owner to remove objected-to posts and to cooperate with requests for the identity of the poster, if known or knowable.

I don't believe in a legally cognizable journalistic privilege, especially in the criminal context, any state statute to the contrary probably having been obtained less on the merit of the privilege than on pressure on legislators from the press, who buy ink by the barrel and can wreck careers. I think recent events have shown the assertion of privilege is more in service of reporter and media self-interest than in the public interest.

Let's say I am arguably a blogger-journalist who wants to mess up Eugene Volokh. I purportedly interview a male student of his who claims he serviced Volokh in his office after hours for an "A." That piece flies around the blogosphere overnight before Gene influences me to take it down. Then he sues me and John Doe and subpoenas me to reveal my source. I invoke journalistic privilege successfully. Someone else in Wyoming hears I won and repeats my caper.

That kind of privilege is bad. Extending it is worse.
11.18.2005 1:55am
The other comments seem to be talking around this issue: Bloggers tend to be less accountable than reporters. Those bloggers who do not make their name available, for example, do not have to suffer the consequences in the "marketplace of ideas" that reporters do.
11.18.2005 2:36am
b.trotter (mail) (www):
Apple recently sued 3 bloggers successfully to force them to reveal their sources, however the judge in the case didn't settle the issue of whether bloggers were reporters... he sidestepped it focusing on the theft of intellectual property (an MSM reporter would have lost the case as well, as the commission of a crime nulls California's "shield law"... i.e. the Bloggers themselves were recipients of stolen goods (intellectual property)... if Geraldo Rivera had received the same leaked information concerning Apple's upcoming ipod releases, he would not be protected under the shield law from divulging his source of the stolen goods... Ergo, the link above may not entirely support not extending priviledges to bloggers...

I think one has to compare and contrast the differences between a traditional reporter and a blogger... although... with the blogger... we're gonna need a wide brush...

Traditional reporters generally have to have recieved some education in the field of Journalism. To get published, generally an editor or an editorial staff must first review the articles. Usually, these reporters work for the institutions their articles are published in, though frequently, writers freelance or syndicate their columns. In any event, regardless of who they are or how long they've been doing it, reporters are subject to intense public scrutiny. Eugene Volokh, for example, can't simply make up a story to be published in a major newspaper, at some point, people are bound to check out the facts. If they're routinely discredited, they're bound to lose their status as a reporter. (anybody read any good news articles by Jason Blair recently?)

What standards exist for Bloggers? I occasionally opine on my website... (not to mention comment on blogs all over the web). I'm accountable to virtually no-one. MSN would block my blog if it contained lots of hate speech or nudity, but I could sit on my blog all day long and claim anything I wanted, support any candidate I wanted with facts I can make up out of the blue, trash any candidate with facts I can make up out of the blue, or really do whatever I want with virtually no enforceable editorial review. (Sure, people can comment, but I can delete the comments)... I require no special education to Blog. No credentials of any kind. I could be a 16 year old kid who cuts and pastes other peoples blogs as my own, or a 38 year old Quality Inspector who studies the news intently and forms opinions based on the facts. Whose to know the difference?

In short, what's to stop me as a blogger from making up news and using it to sway the next election cycle? What's to stop me from soliciting insider leaks from contacts within the govnernment (in my case, I don't know any fed Staffers, but I know quite a bit of State and Local govt. employees) and using that info to tear down a candidate? If I lie about my contact... or commit libel... what holds me accountable? Nothing. I have nothing to lose with my blog, I don't get a penny for it... What is there to even require that I say who I am... (my post says B.Trotter... is that my real name? With a little creativity, I could really post as anybody I wanted... Reporters generally hold no such anonymity, and are subject to a much higher level of scrutiny.

That being said, pppppllllease, Eugene, tell me you're searching for these arguments so you can plead the devil's advocate case. I like being able to blog, and personally I hope I don't have to start weighing my posts against possible recriminations by the FEC or that I might get hauled in by Fitzgerald because I mentioned Valarie Plame in a comment like this one...
11.18.2005 5:26am
Seamus (mail):
"Democracy21, the Campaign Legal Center and the Center for Responsive Politics argued before the FEC that bloggers could be too partisan in their aims to merit treatment as 'press'."

Democracy21 conveniently ignores the fact that when the first amendment was added to the constitution, *all* the press was unabashedly partisan.
11.18.2005 10:27am
Passing By:
(Actually, the journalists sued by Apple were not bloggers. Which perhaps helps demonstrate why these issues can be confusing - it can at times be difficult to differentiate a traditional journalist from a blogger.)

How about using Lee Bollinger's reasoning as to why lower protections can reasonably be applied to broadcast media than print media - so that the broadcast media aspires to demonstrate that it is responsible so as to gain more protections, and the print media acts responsibly to avoid having its protections reduced. Bloggers could be given minimal protections, as a warning to broadcast media. (Not compelling you say? Good enough to get him tenure, I reply.)

Perhaps the conversational element of blogging could be considered. In contrast with traditional media, blogging is much more interactive - both within a blog and between blogs. Blog posts are often reactive to something in the news or seen on another blog, and often invite comment. The comments themselves can inspire new posts. The result can be fascinating, but it is of a very different nature than what has traditionally been regarded as journalism. It's not necessarily completely satisfying - would a weblog like "Talking Points Memo", which incorporates some traditional reporting and which does not permit comments, be a weblog or an online journal? But is a videotaped or transcribed conversation "journalism"? (Or even a videotaped or transcribed speech?)
11.18.2005 11:44am
This Boston Globe op-ed is not directly relevent, but is at least an example of a distinction being drawn between "professionals" and "bloggers."

11.18.2005 12:03pm
Mike Lorrey (mail) (www):
IMHO compelled testimony does not contribute to justice, it just contributes to the conviction records of otherwise lazy prosecutors. So long as the 1st amendment exists, all who keep journals that are read by others should enjoy any protections that any journalist receives. Is Michael Moore's documentary filmmaking to be considered journalism, and not campaign contributions? How about the television show "Commander in Chief"?

This all being said, true national security concerns should trump all, but only when lives are at stake. But what is or is not really a national security concern? Valerie Plame had stopped being undercover for years before Scooter Libby outed her, her identity had been compromised by a foreign intel service as early as 1996. If Libby violated national security, why didn't Joe Wilson in his NYT article discussing what he was hired by the CIA to investigate (at the behest of his wife) in Africa? Why no indictment for Joe Wilson?

Which was a true national security breach, and which was simply embarrassing to one or the other political faction? Too much that is classified is not done so for national security reasons.
11.18.2005 12:31pm
Not sure that it's relevant, but in Batzel v. Smith, Judge Gould's dissent cites the Volokh Conspiracy in discussing the dangers associated with defamation immunity for publication of third party content on blogs. I didn't read the opinion carefully, but it seems that bloggers in the context of defamation get more protection than ordinary journalists. The fact (and maybe the necessity) of having that immunity for bloggers could inform an argument that bloggers are different, and need a different set of legal protections (in some cases more, in others less) from traditional journalists. Their capacity to cause harm might be different, and so their liability exposure should be different.
11.18.2005 2:51pm
Mike S.:
Two notes:
First off, all laws include definitions. By including bloggers in a law might make any journalist's privilege law far too effusive — to the point that anyone seeking to protect friends or colleagues who break the law and make statements against their interest could simply create an obscure blog or Web site and pose as a journalist. (I would be interested in looking into what Congress requires for media credentials and how many "applications" the press office has turned away as a result of essentially not being from a reputable media source.)
Secondly I don't believe it would be too far out on a limb to say that any law affording privilege to journalists (like libel laws) will include exemptions from protection. What standards could an errant blogger be held to? (i.e. to prove "negligence" for instance) And, for instance, should a blogger maintain an ethics charter, how flimsy (un-established) would a court view it?

… But these are merely my thoughts.
11.18.2005 3:58pm
fred (mail):
Face it. Most bloggers are just individuals giving their opinions. They are really no different than a man in the street spouting off about this or that subject.

As such, bloggers should be fully and completely responsible for their statements under modern libel law. The man in the street is. Why not bloggers?

The fact that bloggers have at their disposal a powerful technological means for damaging reputations and disseminating lies around the world in the blink of an eye is not reason to give them privileges; it is reason to make sure those with such great power learn to manage their comments responsibly.

After all, when cars were invented, we suddenly placed the power of hundreds of horsepower powering thousands of pounds of metal at 60 miles an hour - into the hands of little 16 year old Jimmy. Did we make sure that he would not be sued in case he maliciously drove over little Mrs. O'Reilly?

No. We made sure he had insurance so if he did damage, those hurt would be compensated. We made sure he could pass a test proving he could control the beast. Great power was suddenly in the hands of the average person, and we made sure that they knew how to use that power responsibly.

In the same degree, we should allow bloggers to be sued for defamatory statements. This new technology gives them great power. They should learn what is and what is not defamatory. This is not a great imposition. The most fire-breathing statement about someone can usually be made NOT libelous by the alteration of a simple phrase or two, without weakening the impact of the statement. All that is needed is knowledge of a few simple techniques.

Actually, what blogging shows is that all of the special rules we have created for newspapers, in particular the rule of New York Times v Sullivan, are artificial, and not needed in the first place. In the same way bloggers should not have free reign to libel, neither should newspapers. There was no crisis that called the rule of Sullivan into existence; it was merely a thoughtful gift from a Liberal Supreme Court to a Liberal Press that sung the Court's virtues day after day. Newspapers were managing quite nicely before Sullivan came along. (actually, things might have been better) There are a number of natural barriers to bringing a libel suit: The general hassle involved in bringing a suit; the knowledge that the major newspapers had oodles of good lawyers at their beck and call to smother the average claimant, the ability to smooth it all over with a retraction, all of these are natural barriers to overeager plaintiffs.

As technology develops, we will see an increasing ability for people to do great damage to the reputations of others - and to do so long before the truth of the matter can work itself free, and reach those whose minds have been tainted by false charges. (Churchill: "A lie gets halfway around the world before the truth can get its pants on").

The remedy for this is not to allow free-form libeling of persons, or to provide bloggers with protections. The solution is to start forcing those who avail themselves of mass opinion distribution technologies to become thoroughly conversant with the rules of libel. It could even start in high school.

The surest way to ensure people learn to do this is to make them responsible for damages if they do libel.

That being said, giving them the right to retract and thereby kill any lawsuit should be enough.
11.18.2005 4:16pm
fred (mail):
Forgot the final piece to my argument, per instructions:

There is a critical difference between the mainstream media and bloggers.

As the blogospher has developed, a two tier scheme of information delivery has developed: the blogosphere deals in rumor, preliminary conclusions, and other raw informational grist.

We know bloggers are often just guys in their pajamas, giving their two cents worth on a subject. As such, everyone realizes they may be reading a fool or an expert. Blog information has no inherent reliability in and of itself. It must be verified,checked and cross checked rigorously before we can rely on it.

That function is performed by the MSM. They serve as a final point of validation. If it appears in a major newspaper, it has been edited, reviewed several times, and judged to be worthy of some degree of credibility. It is by no means perfect, but we know it has been vetted thoroughly, and has become, in a sense, prima facie correct.

A democratic society needs to base its public decisions and debate on hard facts, not rumors. The function the mainstream media performs is therefore crucial. As this final point of verification, they expose themselves to attacks by angry governmental officials, angry and powerful people, and maybe even angry mobs of powerless people.

When it's printed in a blog, everyone knows it can be discounted. ("Oh, you just read that in some blog")When it's printed in a newspaper, everyone knows it is being held out as verified truth.

Because the MSM performs this critical public function, they need to be given some special public protections. They are at the distillation point of information delivery, and they are most likely to be seriously attacked by powerful forces in a society.
11.18.2005 4:49pm