pageok
pageok
pageok
Investigating Blog Comments in A Criminal Case:
The New York Times offers up this interesting story about an effort by criminal investigators to subpoena IP addresses of blog commenters from a blogger. The subpoena was withdrawn, so there won't be a court decision on it. At the same time, some of the discussion of the legal principles in the article struck me as a bit off.

  In particular, my understanding is that the government has no power (absent statutory authority, which would be subject to serious First Amendment challenge) to order the recipient of the subpoena not to disclose it. According to the Times story, "the subpoena carried a warning in capital letters that disclosing its very existence 'could impede the investigation being conducted and thereby interfere with law enforcement'." No doubt this was written to create the impression that going public with the subpoena could lead to criminal prosecution. But my understanding is that, as a matter of law, it actually has no legal effect. Do others disagree?

  Second, there is an important line of cases on how the First Amendment applies to grand jury subpoenas in relatively similar settings that I think would frame any First Amendment issue. See generally Branzburg v. Hayes, 408 U.S. 665 (1972), and its progeny, such as The New York Times Co. v. Gonzales, 459 F.3d 160 (2nd Cir. 2006) (allowing grand jury subpoena for reporter's telephone logs). Given those precedents, I don't think the issue here is as novel as the article suggests.

  Thanks to Ben Smith for the link. For more on the story, see here.
Grange95 (mail):
Was the subpoena actually one the infamous "national security letters" that purportedly make it a crime to disclose the request for information? In any event, the concept of ultra-secret investigations like this send shivers up my spine.
7.15.2008 12:46am
OrinKerr:
Nope -- the DA's office isn't the FBI.

And I guess my point is that this actually wasn't actually an ultra-secret investigation; the real story here seems to be the subpoena's bogus suggestion that it was.
7.15.2008 12:48am
Snarky:
If Orin is right about the government's power with respect to subpoena's (and I have no reason to think he isn't right)...

I think it is unethical for the government to intentionally try to give individuals the impression that something that is perfectly legal is illegal. (i.e. disclosing the contents of a subpoena)
7.15.2008 12:56am
Ex-Fed (mail) (www):
I don't know what New York law purports to allow. But when I was a fed, all subpoenas out of the USAO CDCA had strongly worded letters asking the recipients not to disclose them, though we understood perfectly well that the request was not enforceable. There's a statutory exception for certain banking cases, as I recall, but it is rarely invoked.
7.15.2008 1:10am
SDonelan:

In particular, my understanding is that the government has no power (absent statutory authority, which would be subject to serious First Amendment challenge) to order the recipient of the subpoena not to disclose it.

I think 18USC2705(b) is the usual way the government orders recipients of subpoenas to delay disclosing them. More government agencies have been asking for the power to order delayed notification, such as the US SAFEWEB Act (PL 109-455) authorizes the Federal Trade Comission to delay notification and obtain orders prohibiting disclosure of subpoenas.

However, there is also a long history of administrative subpoenas being written to imply, but not actually, notifying the target of the subpoena would be prohibited.

America Online's legal web site tends to do a better job of explaining this than most government web sites such as cybercrime.gov.
7.15.2008 1:45am
OrinKerr:
SDonelan:

18 USC 2705 applies to providers of ECS and RCS under the Stored Communication Act, but a blogger is not covered by that Act so it doesn't seem relevant here.
7.15.2008 1:58am
Public_Defender (mail):
A lot of prosecutors would charge a subpoena recipient with obstruction of justice for disclosing the content if the prosecutors thought that the disclosure hurt their case. They'd say it was like telling the subject of a search warrant that the cops were on the way to execute it.

Defying a prosecutor's threat of criminal action is extremely risky and generally inadvisable, even if the threat is frivolous. You have to do exactly what this blogger did--hire a lawyer and persuade/threaten the prosecutor into withdrawing the threat.
7.15.2008 5:33am
Larry Fafarman (mail) (www):
Most Internet users do not have their own unique IP addresses. Many Internet users share an ISP (Internet Service Provider) proxy's static IP address with other Internet users. Other Internet users are assigned a dynamic IP address from a range of IP addresses each time they connect to the Internet. Unique IP addresses for individual Internet users must usually be specially purchased. The new Version 6 IP address system makes more IP addresses available than are available under Version 4. .

Unfortunately, IP addresses can often be used to block Internet users from commenting because Internet users are often assigned the same ISP proxy static IP address each time that they connect to the Internet. This method of IP address blocking can fail if the ISP proxy's static IP address changes. Also, if the Internet user is given dynamic IP addresses from a range of IP addresses, that whole range can be blocked. Other Internet users can be unintentionally blocked when IP address blocking is used. Using an anonymous proxy -- where the Internet connection is routed through another IP address -- can sometimes be used to avoid IP address blocking, but some websites can detect anonymous proxies and block them. ISP's should help their customers avoid IP address blocking by assigning them to different ISP proxies each time they connect to the Internet. IP address blocking should be illegal and I think it is illegal in some countries of Europe, and other countries of Europe might be discouraging it. More info is available on my blog "I'm from Missouri" (just click on "www" in the heading of this comment) under several post-labels titled "Internet censorship" -- the post labels are in the sidebar.
7.15.2008 6:24am
PatHMV (mail) (www):
I'm with Public_Defender. The operative criminal statute would be the general obstruction of justice statute. And I don't see any great First Amendment issue. If you just talk with somebody to plan a bank robbery, and the other person commits an overt act in furtherance of the plan you helped concoct, just the talking about the bank robbery is criminal under ordinary conspiracy law. Here, the communication would be being made in furtherance of aiding the conspiracy to avoid being caught.
7.15.2008 8:23am
Largo:
I'll take this opportunity to ask Orin (and company) about the extent to which government authorities may compel one to lie. I will throw in an exercise of religion slant. Suppose my local church is wary about a slippery slope in government power. Each Sunday service provides members a solemn chance to declare, before God and the congregation, that are under no duress regarding their speech. My own sensitive documents are in the hand of an anonymous member of the church. Requested documents are sent to me only if requests are made in the context of such a declaration.

This is surely not a novel approach in general, but I have found little literature or discussion on public declarations of this kind being compelled.

I do confess, I would like to try to enact such a scheme, for the political point as much as anything else. For the community to bear a kind of religo-libertarian witness, if you well. Even while boldly proclaiming our intent to be subversive, the declaration could be real, not nominal. (Excommunication as the real consequence of a false declaration?!)
7.15.2008 8:27am
OrinKerr:
Public Defender,

I was under the impression that obstruction of justice required intent to impede the official proceeding, and at least under federal law, some sort of "corrupt" motive.
7.15.2008 9:03am
OrinKerr:
Largo,

I'm afraid I don't understand your hypo. Could you explain a bit more?
7.15.2008 9:05am
HLSbertarian (mail):

And I don't see any great First Amendment issue. If you just talk with somebody to plan a bank robbery, and the other person commits an overt act in furtherance of the plan you helped concoct, just the talking about the bank robbery is criminal under ordinary conspiracy law.


You'd also need to intend to rob the bank. "Just talking" about robbing a bank is NOT criminal under ordinary conspiracy law - in fact, it's what you did in your comment.
7.15.2008 9:24am
gadfly:
another reason to hide your ip
7.15.2008 9:30am
Matt C. Sanchez (www):
I think that if those of us who're familiar with the law don't have an easy answer here, the average Internet speaker isn't going to have a clue. The important thing isn't whether the investigators had the power to punish the site owners, but instead whether the speakers refrained from speaking for fear of prosecution.

-Matt C. Sanchez
Citizen Media Law Project
www.citmedialaw.org
7.15.2008 10:26am
Paul Alan Levy (mail) (www):
In response to Orin Kerr and others:

We took this case because it presented an old question, largely resolved in a fashion contrary to free speech interests, in a new context that we thought allowed us the possibility of developing the law in a good direction. There are two lines of authority on which we hoped to draw -- the rapidly developing consensus in the civil context that subpoenas to identify anonymous bloggers must be supported by legal and factual justification, and the clear authority in New York law that when a grand jury subpoena is challenged on privilege or First Amendment grounds, that the prosecutor must articulate the factual and legal basis for the subpoena, relating it to a legitimate investigation. We articulated this argument in our brief which, along with a number of the litigation-related documents, is available on our web site

Second, although we certainly agree that there may be individual cases in which disclosure of a subpoena could so significantly interfere with a law enforcement investigation that it could be constitutional to forbid it, there is no basis for issuing such commands on a regular basis (and make no mistake -- the prosecutors in question made clear when I spoke to them that they intended the legend on the subpoena to be understood as a threat of prosecution under the New York criminal statute barring interference with law enforcement; it was NOT a request. Moreover, two of the four subpoenas were also executed "So ordered" by the empaneling judge, raising concerns about contempt charges. this of course presented some Younger v. Harris concerns that affected the way we drafted our SDNY complaint). Indeed, the First Circuit has held that federal prosecutors who routinely issue threats of prosecution for disclosure along with their subpoenas run afoul of Rule 6(e) of the Federal Rules of Criminal Procedure. In re Grand Jury Proceedings, 814 F.2d 61 (1st Cir. 1987). There is language similar to Rule 6(e) in New York's grand jury rules. Therefore, I would be grateful to Ex-Fed if he or she would let us know whether the practice described in the Central District of California is on-going. Perhaps others could let us know about practices in other districts. There could be some good cases to pursue.
7.15.2008 10:30am
Sparky:
OrinKerr:

The requirement of an intent to impede the official proceeding is little protection. Any prosecutor worth his or her salt will argue that you had been warned that disclosure would impede an official proceeding, and hence the intent to do so may be inferred from the disclosure.
7.15.2008 11:00am
Some Guy (mail):
Say, I wonder who that Matt C. Sanchez is affiliated with? He seems like the sort of smart, idealistic young law student I would like to put forward for a pro bono practice job paying ridculously obscene amounts of money at my mega-firm. If only he were more forthcoming and posted his name and blog affiliation on every legal blog in existence, maybe I could track him down and give him all he deserved in life...
7.15.2008 11:05am
M. Gross (mail):
Allow me to strongly disagree with Larry Fafarman's proposition: "IP address blocking should be illegal"

First of all, restricting access to a website is a large part of the internet's general usefulness. Most of the online economy would not exist were this legally barred.

IP bans also prohibit abusive and destructive behavior (spam, denial of service, etc.)
7.15.2008 11:11am
Philistine (mail):
In October of 2007, two journalists were arrested and briefly jailed before charges were dropped for publishing an Arizona State Court grand jury subpoena directed to them.

Washington Post Story
7.15.2008 11:21am
Fub:
Couldn't read the NYT account, but the Room 8 account makes it very clear what the "crime" likely was: drawing attention to public information (a recorded deed) that might incriminate or at least embarrass a political appointee and/or appointers.

When challenged in court, the DA conveniently covered his posterior by dropping the subpoena. That's a good outcome for the subpoena target in the short run.

But, not knowing NY law, it begs a question: why isn't somebody in the DA's office looking at striped sunshine for issuing a subpoena under false pretenses? If a criminal statute exists, and the DA won't prosecute or refer it to the state AG for prosecution, then why isn't the DA also facing criminal charges?

If there isn't a criminal statute covering the act of a government actor issuing a subpoena under false pretenses, there should be. This kind of prosecutorial abuse makes Nifong look like an hick.
7.15.2008 12:11pm
Hoosier:
IANAL--Does it make any difference HOW the information might be disclosed? Any areas of communication/speech that trump the "obstruction of justice" case?
7.15.2008 12:51pm
Hoosier:
Following up on my question: Sorry for the far-fetched hypothetical that follows, but it's the best I can do right now:

If I am, say, a Benedictine Brother, and I receive such a communication from the DA, I assume the state CANNOT tell me that I cannot report the entire matter to my abbot. My relgious vows are part of my right of free practice, etc. etc.? No?
7.15.2008 12:53pm
SDonelan:

18 USC 2705 applies to providers of ECS and RCS under the Stored Communication Act, but a blogger is not covered by that Act so it doesn't seem relevant here.

Reading what the subpoena asked for, it looks like Room8 LLC was acting like an ECS/RCS in this case.

The subpoena asked Room8, LLC to supply the sign-up information, account access, etc for several userIDs (Anonymous, RepublicanDissident, Dissident Hunter) using the Room8 system.
7.15.2008 12:58pm
Dilan Esper (mail) (www):
I think it is unethical for the government to intentionally try to give individuals the impression that something that is perfectly legal is illegal. (i.e. disclosing the contents of a subpoena)

This is a serious problem, and not just in government. For instance, many businesses make people sign liability waivers that they know will be unenforceable. The hope is that it may deter some people from calling a lawyer and suing.
7.15.2008 1:50pm
Larry Fafarman (mail) (www):
HELLO? HELLO? IS ANYONE THERE?

You people remind me of the folks who were discussing how nice the emperor's invisible new clothes looked.

My point was that this whole issue is moot because most Internet users and computers are not identified by unique IP addresses. See my post of 7.15.2008 5:24am.

Another problem -- which is moot because the IP addresses are useless anyway -- is that blogging software often does not store the IP addresses of visitors. And I don't know if I can even access the IP addresses of incoming comments on my blog when the comments come in (i.e., in "real time"). Even my SiteMeter software does not show complete IP addresses -- the last number in the series is replaced by # -- e.g., 123.76.154.#, and often the domain name is displayed instead of the IP address. The Sitemeter information can sometimes be an aid in tracing a visitor -- for example, I know that a domain name of msu.edu and a location of East Lansing, MI is a visitor from Michigan State University. But the free version of SiteMeter shows only the last 100 visitors and a lot of blogs do not have SiteMeter installed. And often it is impossible to link a SiteMeter address to a specific comment. The bloggers should have told the subpoena issuers to jump in the lake.

People often go off on wild goose chases in debates by not recognizing basic facts -- for example, the basic fact that a "systematic" Jewish holocaust was impossible because the Nazis had no objective and reliable ways of identifying Jews and non-Jews.

M. Gross said,
Allow me to strongly disagree with Larry Fafarman's proposition: "IP address blocking should be illegal"

First of all, restricting access to a website is a large part of the internet's general usefulness.

No, arbitrary censorship of comments is not part of the internet's general usefulness, particularly when the arbitrary censorship is done by blogs and other websites that are authoritatively cited by court opinions, scholarly journal articles, the press, and other authorities. Also, something I didn't mention -- IP address blocking discriminates against Internet users who use only one ISP.

Most of the online economy would not exist were this legally barred.

Wrong -- online businesses use "cookies," which are small files of information (like personal information about you) that visited websites store on your computer. That's got nothing to do with IP addresses.

IP bans also prohibit abusive and destructive behavior (spam, denial of service, etc.)

IP bans cannot block spam. "Word verification," where the commenter is required to enter letters or numbers displayed in a form that cannot be read by software, is the method used to block spam.

As I said, accessing IP address numbers is already illegal or discouraged in Europe. Accessing IP addresses might be legal there under a search warrant issued by a court -- I don't know. But it would not do any good because -- as I said -- most Internet users and computers are not identified by unique IP addresses. Also, tracing a computer or Internet user is especially difficult when anonymous proxies and chains of anonymous proxies are used.
7.15.2008 2:14pm
william (mail):
M Gross: IP bans don't "prohibit" malicious activity they, in theory, prevent it. Even then, one does not have to look much farther than Anonymous/the Chans to see that IP blocking to prevent malicious attacks isn't even that effective at holding non-experts at bay.

Larry: What would regulation possibly accomplish? The Internet is an international, largely anonymous community. How do you decide jurisdiction for laws you're proposing? The location of the blocked party? The location of the blocker? The ISPs? The servers? At best they might restrict the bevahior of non experts in the same area. Those of us with a basic understanding of proxies and off shore hosting would be free to censor with impunity.
7.15.2008 2:47pm
Matt C. Sanchez (www):

IANAL--Does it make any difference HOW the information might be disclosed? Any areas of communication/speech that trump the "obstruction of justice" case?


I'm not aware of any. But it does make a difference, arguably, that this is a situation involving Internet anonymity. As Public Citizen's brief notes, courts around the country have impose special requirements that must be met before a party can demand an anonymous Internet speaker's identity. One of these requirements is that the anonymous speaker be given notice. The "don't tell anyone about this or else" clause in the subpoena removes that protection.

Of course, you (or, for instance, a DA) could argue that the possibility of obstruction negates this particular First Amendment protection. I'd bet that argument would have a tough time in court, though.
7.15.2008 2:53pm
Larry Fafarman (mail) (www):
Earlier this year, Bush threatened to veto a surveillance bill because the bill did not include amnesty (immunity) for telecommunications companies that were being sued for having cooperated with the government in illegal surveillance. Could the same situation exist here, i.e., could the bloggers, the blog service, and/or Internet Service Providers be sued for cooperating with the subpoena if the subpoena is held to be illlegal? Here is what a news article says about the surveillance bill:


The Democrat-controlled House of Representatives voted largely along party lines . . . to tighten supervision of the government's electronic surveillance program despite a White House veto threat.

The measure passed 227-189, well shy of the 287 representatives needed to override a presidential veto.

The bill allows the government to intercept communications between foreign terror suspects, but requires special authorization if the communication involves an American inside the United States.

The bill does not include immunity for telecommunication companies that cooperated in the controversial surveillance program. The White House has said that omission is a deal killer.

Some of the telecommunications companies are being sued by people who say their privacy rights were violated when phone records, e-mail logs and other information were turned over to the government without court approval.

"The House Democrats' bill to reauthorize the Protect America Act fails to give our intelligence community the tools it needs, and it fails to protect companies facing massive lawsuits for allegedly stepping up and answering the nation's call to help after the 9/11 terrorist attacks," the White House said in a statement after the House vote.
7.15.2008 6:37pm
Larry Fafarman (mail) (www):
william said (7.15.2008 1:47pm) --
Larry: What would regulation possibly accomplish? The Internet is an international, largely anonymous community.

Here are some things that should be done:

(1) The Internet culture needs to change so that arbitrary censorship of comments is widely frowned upon. It is not widely frowned upon now.

(2) The courts, scholarly journals, the press, and other authorities should have policies of not authoritatively citing blogs and other websites known to practice arbitrary censorship of comments.

(3) Blogging awards should be denied to bloggers who arbitrarily censor comments.

(4) There should be a law making arbitrary censorship of comments illegal except where the blog or website has a prominent notice stating that such censorship is practiced there.
7.15.2008 6:50pm
Matthew J. Brown (mail):
Larry Fafarman, are you saying that private entities -- bloggers, websites, companies -- should not be allowed to restrict who can use their service as they choose?

If you're a paying customer, you may have some contractual rights if a service you pay for bars you from access. Otherwise, you have no such rights. Within the limits of abiding by anti-discrimination law and not barring people on the basis of their membership of an explicitly protected class, businesses can choose who to communicate with as they please. In most cases, private individuals have even more latitude in such choice.

I find that invariably those who rail against such measures are those who have been frequently and deservedly banned from blogs and other websites, and who feel that website owners are obliged to provide a service to them even though they're not paying for it.

IP blocks are a useful, but imperfect, tool to control abusive behavior online. Yes, a dedicated attacker can get around them, and yes, they can as a side-effect block uninvolved others as collateral damage. However, they do help to reduce problems in some, but not all, cases.

Furthermore, just because your blog interface won't reveal full IP addresses doesn't mean that they're not available. Most webserver software is configured out-of-the-box to log the IP address for every connection; this log may be kept indefinitely, or be rotated or cleaned-up periodically at the site owner's choice.
7.15.2008 6:51pm
Larry Fafarman (mail) (www):
Matthew J. Brown said,
Larry Fafarman, are you saying that private entities -- bloggers, websites, companies -- should not be allowed to restrict who can use their service as they choose?

In many cases, my answer is yes. Do you think that is OK for, say, a court opinion or a law journal article to authoritatively cite a law blog article and thread that are one-sided and unreliable because of the arbitrary censorship of comments?

IMO there should be an exception for blogs and other websites that post prominent warnings of arbitrary censorship.

I find that invariably those who rail against such measures are those who have been frequently and deservedly banned from blogs and other websites

You are very naive -- the most persuasive dissenting comments are the most likely comments to be arbitrarily censored. Unpersuasive dissenting comments are often allowed to stay to try to show the weakness of the opposition.

and who feel that website owners are obliged to provide a service to them even though they're not paying for it.

Comment threads on blogs and other websites -- unlike the comment sections in newspapers and magazines, or the air time for comments in broadcasting -- have virtually unlimited space for comments and the space is free or nearly free for the blogger or website host. On the Internet, there are no space limitations, time limitations or costs that could justify picking and choosing which comments to post.

IP blocks are a useful, but imperfect, tool to control abusive behavior online.

IP address blocking is an abomination and should be outlawed. As I said, accessing IP addresses is illegal or discouraged in European countries.

Furthermore, just because your blog interface won't reveal full IP addresses doesn't mean that they're not available.

Blog services should be prohibited from helping bloggers access IP addresses or block IP addresses.
7.15.2008 9:51pm
Public_Defender (mail):
Professor Kerr writes:


I was under the impression that obstruction of justice required intent to impede the official proceeding, and at least under federal law, some sort of "corrupt" motive.


Yes, but that would be a jury question. And you don't want to do something that would create a jury question in a criminal case. Further, intent could be inferred from the disclosure, especially after that warning.

I don't think this is fair or just, but it is a realistic assessment about how some prosecutors view obstruction of justice. Not all prosecutors exercise the restraint you did when you were an AUSA.
7.16.2008 5:37am
william (mail):
Larry:

Points 1, 2, and 3 are general policies and social mores that you would like to see develop. They haven't. I can think of a dozen reasons of the top of my head why those kinds of policies are a bad idea and I'm sure you can think of a dozen reasons why they would be a good one. Thats probably a useful debate to have, but it isn't exactly on topic here. What is on topic is this:


(4) There should be a law making arbitrary censorship of comments illegal except where the blog or website has a prominent notice stating that such censorship is practiced there.


Immediately several serious problems become apparent to me. The first is how we define "arbitrary censorship." Does culling abusive or insulting comments count? What about comments over 1500 words? What about off topic comments? Who gets to decide what the definitions are and where the cutoffs stand? These aren't quibbling little questions, they are central to your argument.

The second problem I see is your call for a "prominent notice" if a blog decides to "arbitrarily" censor. What counts as a prominent notice? Are we talking about a line of text at the top or bottom? A notice in every post? What you're proposing sounds more than a little like warning labels on packs of cigarettes. As a society, we don't compel people to put warning labels on things that are not either dangerous or licensed. Speech is neither, even if a given speaker limits conflicting opinions in their own small forum.

Next the law you're suggesting seems to be a pretty serious imposition on first amendment rights. If a given blogger doesn't agree with the law's definition of arbitrary, wouldn't requiring him to inform readers that he "arbitrarily" censors comments be dangerously close to compelled speech? We aren't talking about violating some general guideline of social conduct or business, we're talking about fundamentally limiting first amendment and property rights in the name of egalitarianism. I'm just not sure you can make that argument successfully.

At the end of the day blogs (like most publications) are privately owned and operated spaces. Demanding that a blogger be legally obliged to allow others to use his private space in a given way seems like an unacceptable imposition. Should a peer reviewed biology journal be obliged to publish a paper defending creationism? If I am a widely published professor and I have a conversation with a colleague in my back yard, should I be required to let someone walking through the alley onto my property to voice their opinion? Lets say they were only yelling it over my fence, should I be prohibited from turning up the stereo to drown them out? If the discussion was in my garage, should I be prohibited from closing the door so their voice couldn't be heard? What is the general principle being served by your law, what are the competing interests?

Finally, Larry, you dodged the question of jurisdiction. In order for a law to mean anything there has to be some means of enforcement. Traditionally, thats a pretty easy thing to determine in most cases. If I commit a crime in Detroit then I am arrested by police there and prosecuted in that area. The nature of the internet complicates that. If selling widgets is illegal in Nevada, but I live in Illinois, the state of Nevada cannot prosecute me for selling widgets from my website. So are you discussing a federal law? What happens if I live in Canada? Or, say only my servers are in Canada? The law you propose would be a nightmare to investigate or prosecute, requiring significant intrusion at virtually ever step of the process.
7.16.2008 10:28am
Larry Fafarman (mail) (www):
William said,
Points 1, 2, and 3 are general policies and social mores that you would like to see develop. They haven't.

That doesn't mean that they should not develop.

I can think of a dozen reasons of the top of my head why those kinds of policies are a bad idea and I'm sure you can think of a dozen reasons why they would be a good one. Thats probably a useful debate to have, but it isn't exactly on topic here.

Would you like to have the debate on my blog? We can do that.

Immediately several serious problems become apparent to me. The first is how we define "arbitrary censorship."

Often it is fairly obvious that a comment has been censored solely because the blogger disagrees with it. And you are very naive if you think that this kind of censorship does not go on all the time.

The second problem I see is your call for a "prominent notice" if a blog decides to "arbitrarily" censor. What counts as a prominent notice? Are we talking about a line of text at the top or bottom? A notice in every post?

That is a frivolous argument. If you like, the law could require that the notice be posted in the blog banner (the blog banner is usually displayed on every blog page), and -- if you'd like -- there can even be rules as to the minimum size of the notice.

As a society, we don't compel people to put warning labels on things that are not either dangerous or licensed. Speech is neither, even if a given speaker limits conflicting opinions in their own small forum.

"Speech is neither"? Haven't you ever heard the saying, "the pen is mightier than the sword"?

Who says that warning labels can't be required on things that are neither dangerous nor licensed? And what determines what is "dangerous" or "licensed"? For example, prospectuses of investment funds often have something like the following notice, which I presume is required by law: "The Securities and Exchange Commission has not approved or reviewed the contents of this prospectus. Any representation to the contrary is a criminal offense."

We aren't talking about violating some general guideline of social conduct or business, we're talking about fundamentally limiting first amendment and property rights in the name of egalitarianism. I'm just not sure you can make that argument successfully.

There was once a "Fairness Doctrine" -- now dormant -- that required broadcasters to give air time to different viewpoints. In Red Lion Broadcasting Co. v. FCC, the Supreme Court held that the Fairness Doctrine is constitutional. My argument is that because comment space on blogs is virtually unlimited and costs the blogger little or nothing, there is no reason to pick and choose which on-topic, serious, and polite comments to post. And bloggers who insist on reserving the right to arbitrarily censor comments should be required to post notices of same. A lot of bloggers claim that their blogs are like their own homes, but that is bullshit -- a blog posted on the Internet is in the public domain. And even your own home is not sacred -- for example, if the cops find kiddie-porn stored in your own home, you can go to jail.

Should a peer reviewed biology journal be obliged to publish a paper defending creationism?

I am talking about blogs here, not journals. The analogous question for blogs is: should a biology blog be required to post an article defending creationism? I say that the answer is no. But I feel that the blog should not censor comments that defend creationism.

Finally, Larry, you dodged the question of jurisdiction. In order for a law to mean anything there has to be some means of enforcement.

Many laws are difficult to enforce -- that doesn't mean that we shouldn't have them. And this is not just a matter of law. As I said, the Internet culture needs to change so that arbitrary censorship of comments is frowned upon. And courts, scholarly journals, the press, and other authorities should have policies against authoritatively citing blogs that are known to practice arbitrary censorship of comments.
7.16.2008 6:09pm
william (mail):
Larry, I'd love to have a discussion about this, but it seems that you are less inclined. Your argument seems to come down to two major points "I believe that X should be the case, even though Y is the current way things are, therefore X should be the case" and "If you disagree with me you are very naive." When responded to with reasoned concerns you have consistently dismissed them out of hand as being "frivolous" and naive, arguing disingenuously, and generally chanting talking points for your cause rather than engaging in anything that could be properly called a discussion.

Laws have results and effects. They need to be defined and honed. Every single aspect must be considered. You cannot leave anything as significant as a restriction to constitutional rights up to "common sense." If you are unwilling to discuss how a law is to be applied, under what circumstance, what unintentional consequences might arise, and what rights it might infringe up, then you really don't have much business proposing legislation.
7.17.2008 12:38pm
Larry Fafarman (mail) (www):
william said,
Larry, I'd love to have a discussion about this, but it seems that you are less inclined.

You said, "I can think of a dozen reasons of the top of my head why those kinds of policies are a bad idea and I'm sure you can think of a dozen reasons why they would be a good one. Thats probably a useful debate to have, but it isn't exactly on topic here." So I challenged you to a debate on my blog. How does that show that I am "less inclined" to having a debate than you are?

Your argument seems to come down to two major points "I believe that X should be the case, even though Y is the current way things are, therefore X should be the case"

Ever hear of John Lennon's song "Imagine"? Here are some new lyrics:

Imagine there is no arbitrary censorship of comments on blogs,
It isn't hard to do . . . .

You may think that I'm a dreamer, but I'm not the only one . . . .

==============

-- and "If you disagree with me you are very naive."

I said that you are very naive if you think that arbitrary censorship of comments on blogs does not go on all the time.

When responded to with reasoned concerns you have consistently dismissed them out of hand as being "frivolous" and naive

I didn't dismiss them "out of hand" -- I explained why they are frivolous and naive. For example, I gave an example of where the law requires posting of a warning not concerning danger or licensure.

Laws have results and effects.

As I said, I am not just talking about laws -- I am also talking about the following:

(1) -- changing the Internet culture so that arbitrary censorship of comments is widely frowned upon

(2) -- courts, scholarly journals, the press, and other authorities should have policies against authoritatively citing blogs and other websites known to arbitrarily censor comments
7.17.2008 4:10pm