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Are Blogs Less Worthy of Various Protections Than Magazines?

I sometimes hear people argue that blogs are unworthy of various legal protections -- for instance, journalist privileges, exemptions from campaign finance laws, and the like -- because they aren't Serious Journalism. Let me offer a few thoughts about this.

1. As I've argued before, it's hard to say what "blogs are," just as it's hard to say what "books are." Blogs, like books, vary widely in topic, readership, quality, depth, breadth, and more. Most blogs, like most books ever published, aren't particularly good or useful. But if we are to evaluate blogs or books, the focus should be on the ones that do attract a broad readership, not to the great majority that are ignored.

2. We should thus focus on the most prominent blogs (not just the 10 most prominent, but still not blogs #1,000,000-2,000,000). And we should compare those blogs not against the Best of the Best, but against other media as they actually are. I've generally argued that the high-readership blogs tend to be most analogous to magazines, because both tend to offer opinion and commentary on the news (with "news" defined broadly). And in fact many special legal protections for the media include magazines alongside blogs.

3. This having been said, what are those magazines that get protection under many journalist privilege statutes, under many campaign finance statutes (including the federal one), and more? Well, here's the list of the Top 25 magazines, by circulation, based on Audit Bureau of Circulations data (note that this includes both weeklies and monthlies, and perhaps other magazines):

AARP THE MAGAZINE 23,250,882
AARP BULLETIN 22,621,079
READER'S DIGEST 10,094,284
BETTER HOMES AND GARDENS 7,627,046
NATIONAL GEOGRAPHIC 5,072,478
GOOD HOUSEKEEPING 4,675,281
LADIES' HOME JOURNAL 4,136,462
TIME-THE WEEKLY NEWS MAGAZINE 4,082,740
WOMAN'S DAY 4,014,278
FAMILY CIRCLE 4,000,887
PEOPLE 3,786,360
AAA WESTWAYS 3,733,561
TV GUIDE 3,499,746
PREVENTION 3,324,440
SPORTS ILLUSTRATED 3,208,630
NEWSWEEK 3,130,600
PLAYBOY 3,016,453
COSMOPOLITAN 2,928,041
SOUTHERN LIVING 2,822,542
VIA MAGAZINE 2,808,377
MAXIM 2,540,146
AAA GOING PLACES 2,528,014
AMERICAN LEGION MAGAZINE 2,525,264
AAA LIVING 2,411,813
REDBOOK 2,389,456

A mixed bag -- just as blogs are a mixed bag. Some news, some gossip, some lifestyle, some hobby, just as is the case with blogs.

I don't know of an authoritative list of top-visitor blogs, and I'm not sure how to evaluate the relative quality of the ones I've seen, or to judge whether top-link lists are good proxies for influence or likely visitor counts. (Please do let me know what you think are the best lists of most influential blogs.) But my guess is that the profile of the top blogs won't be radically different from the profile of the top magazines. And I'm pretty sure it won't be far "worse" -- if the criterion of quality is either focus on Important Issues, Seriously Discussed, or the credentials of the authors -- than what we see among the top magazines.

D Anghelone:
Don't magazines and newspapers have legal obligations not applicable to blogs? Libel, defamation, whatever in the posts or comments?
8.21.2007 9:56pm
Ben P (mail):
There are a number of lists of most visited blogs, but few are truly authoritative as they generally come from advertising.


a source using adsense

[a rel="nofollow" href="http://technorati.com/pop/blogs/"> Technorati's top ranked blogs probably more authoritative, but without a true circulation number as it's based off of links

Suffice to say, if you add up the daily readership, I would wager that the top ranked blogs have readerships equivalent to that of any major magazine.
8.21.2007 10:54pm
zooba:
Blogs can still be held liable for libel and related torts. There is an exception under the DMCA "safe harbor" clause that can reasonably be read to cover blog comments, but that statutory oddity seems to have little to do with the general issues regarding journalistic protection of blog authors.
8.21.2007 11:43pm
Eugene Volokh (www):
Ben P: The trouble with the Truth Laid Bear site is that (1) I'm not sure how the listed blogs are selected, and whether there's a bias in favor of some topics, and (2) there seem to be some pretty clear data quality problems in at least some of the blog statistics it uses.
8.22.2007 12:02am
Lev:
Serious Journalism is frequently not serious journalism, but rather a compendium of observations and opinions, rather like a blog, but more self important.
8.22.2007 12:20am
John C:
I think one of the criticisms of journalist's privileges is that there is no coherent way to determine just who is (or should be) entitled to their protections. While it seems to make sense to extend the privilege only to individuals or institutions that one might consider being in the "practice" or "profession" of journalism, this is extremely difficult (if not impossible) to determine in practice. As you point out, Eugene, should blogs count? "Big" blogs or "little" blogs? What about individuals just posting stuff on a personal ("non-blog") website? What about pamphleteers? The crazy guy on the street corner giving out photocopies?

It has long been accepted that the free press protections of the First Amendment protect such private pamphleteers - see Branzburg v. Hayes - so does that mean they are (or should be) protected by "journalist" privileges? If that is the case, then, can anyone who wants to privilige a private communication simply print up something or post to their blog and thereby recieve a testimonial privilege? That can't be correct, but that seems to be the logical conclusion of an broadly applied journalist's privilege based on the First Amendment.
8.22.2007 10:29am
anonVCfan:
like a blog, but more self important

The existence of something more self-important than a blog is theoretically possible, but hasn't yet been proven.
8.22.2007 10:37am
Just Dropping By (mail):
The existence of something more self-important than a blog is theoretically possible, but hasn't yet been proven.

I would submit the 1968 Buckley/Vidal debate is actual videographic proof of something more self-important, however, for your own safety, you must wear welder's goggles and ear protection while observing it.
8.22.2007 10:51am
tarheel:
There's really no legally coherent reason to differentiate between a newspaper/magazine and a blog in terms of the "reporter's privilege." If the blog is really just opinion without reporting, there won't be any sources to protect, right? If the writer is talking to sources and writing about it in whatever form, he is a "journalist."

The North Carolina shield law (N.C. Gen. Stat. 8-53.11) is about as broad as possible and seems to work pretty well:

Journalist. -- Any person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium.
8.22.2007 11:01am
news to me (mail):
AARP Magazine and Reader's Digest are separate publications? Who knew?
8.22.2007 11:29am
Dave N (mail):
I agree with zooba. Traditional libel law seems applicable to both blogs and magazines--whether the magazine is National Review or Good Housekeeping and whether the blog is DailyKos or the VC.

Oh--and apropos to Just Dropping By. When I read the comment about the Buckley/Vidal debate I nearly spewed out my coffee.
8.22.2007 11:37am
anonVCfan:
Just Dropping By, touche... Within the first 30 seconds of Part I, I was convinced.
8.22.2007 11:55am
Blithering Idiot (mail) (www):
I'd love to know what the circulation of The Independent Journal and The New York Packet were when they published The Federalist [Papers]
8.22.2007 1:33pm
cirby (mail):
Even though TV Guide gets 3.5 million circulation per week, and a middle-ranked blog only gets about 1/1000 of that, I'd figure a blogger writing a half-assed opinion piece about local politics is more "journalistic" than the guy who writes the puff pieces about who's starring in what new show on CBS this fall.
8.22.2007 2:00pm
Clutch (mail) (www):
I like the notion, but I'm not sure what to think. So I won't.

Clutch
http://www.tshirtwebsites.com
8.22.2007 5:47pm
Rebecca (mail) (www):
What do you do when a magazine that sponsors blogs is sued?

http://www.pandasthumb.org/archives/2007/08/so_sue_me.html


It looks like this guy is suing SEED Magazine and its subsidiary blog PHARYNGULA over a negative book review...
8.22.2007 5:55pm
David M. Nieporent (www):
Blogs can still be held liable for libel and related torts. There is an exception under the DMCA "safe harbor" clause that can reasonably be read to cover blog comments, but that statutory oddity seems to have little to do with the general issues regarding journalistic protection of blog authors.
Actually, it's Section 230 of the Communications Decency Act (CDA); the DMCA safe harbor has to do with copyright infringement, not defamation.

And it has nothing to do with blogs vs. magazines; it has to do with online vs. offline.
8.22.2007 9:40pm
Larry Fafarman (mail) (www):
This idea of giving the "reporter's privilege" -- i.e., the right to hide the identities of confidential sources -- to BVD-clad bloggers (I call them "BVD-clad" because Hugh Hefner considers pajamas to be formal wear) is silly. Professional journalists have the "reporter's privilege" so that they can make credible promises of confidentiality to their sources. But what do BVD-clad bloggers need the reporter's privilege for? They don't need it in their jobs. They can't make credible promises of confidentiality anyway because they don't have press credentials. What is so special about blogging anyway? Why should bloggers be given something that, say, a publisher of a small private newsletter can't get? And why should BVD-clad bloggers be granted the reporter's privilege when they won't accept a "fairness doctrine," i.e., a law prohibiting arbitrary censorship of blog visitors' comments? Such a fairness doctrine would help assure that the blogs are fair and as accurate and reliable as possible. BVD-clad bloggers just want special privileges without responsibilities -- they want the reporter's privilege but don't want a fairness doctrine. And with a reporter's privilege for bloggers, crooks are going to start blogging so that they won't have to testify against their partners in crime.

How can we even talk about giving the reporter's privilege to BVD-clad bloggers when professional journalists are frequently denied the privilege? For example, look at the reporters involved in Plamegate.
8.23.2007 9:26am
Ramiro (mail) (www):
Should the quality of the speech have anything to do with how much protection it gets from the law? Excepts it falls under a non protected category of speech (such as threats) then I don't think that quality has anything to do with this. Who say what is qualuty and what is not? Me? You? A judge somewhere? That's why the first amendment interpretation is and should be broad, isn't it? Let us judge for ourselves, both in blogs, magazines and papers.
8.24.2007 12:43pm
Ramiro (mail) (www):
I'm sorry to repeat myself, but just got a look at Larry's argument. First I think that reporter's privilege is a bad term to name the right of newsgatherers to make confidentiality promises. Because I believe that newsgathering should be protected every time is done seriously, and prior labels imposed on peopole doesn't help that goal. I also believe that news credentials shouldn't have anything to do with this because if "the right to make and keep confidentiality promisies" comes from the FA (as i believe against Braznburg) then it can't be restricted by such a requirenment. And, finally, fairness doctrine was justified by SOCTUS in broadcasting, where the medium used to communicate speech is limited and there are not enough space for everybody. Which is exactly the oposite reality to blogs and the Internet.
8.24.2007 12:53pm
Larry Fafarman (mail) (www):
Ramiro said (8.24.2007 11:53am),
First I think that reporter's privilege is a bad term to name the right of newsgatherers to make confidentiality promises.

Bad or not, it is the most popular term for it. "Shield law" is also used, but I think that people are less likely to know what you are talking about if you use that term.

I also believe that news credentials shouldn't have anything to do with this because if "the right to make and keep confidentiality promisies" comes from the FA (as i believe against Braznburg) then it can't be restricted by such a requirenment.

The First Amendment contains no right to remain silent, which is what the reporter's privilege essentially is.

fairness doctrine was justified by SOCTUS in broadcasting, where the medium used to communicate speech is limited and there are not enough space for everybody. Which is exactly the oposite reality to blogs and the Internet.

There should be a fairness doctrine for blogs precisely because there is enough space for everybody in comment threads on blogs. I am opposed to an unlimited fairness doctrine for broadcasters because there is not enough space for everybody on a broadcasting channel (I am in favor of a limited fairness doctrine for broadcasters that gives individuals and organizations the right to respond to specific attacks against them).

The argument that arbitrary censorship of visitors' comments on blogs is no problem because a comment that is censored on one blog can be posted on another blog is a "let them eat cake" argument that is so asinine that it is not even worthy of consideration. If, hypothetically, your comments here were censored, where else could you post them where they would have the same effect?
8.24.2007 10:22pm