CFP Session: Pressing forward

I’m looking forward to the Computers, Freedom & Privacy conference coming up this May in DC.

This is an initial tender of interest, but would anyone like to collaborate on a panel on blogging, wikis, and their relationship to laws that have traditionally been the purview of “the press”: libel, shield laws, etc.? Any “blawg” types out there who are doing work in this area? Email me, or leave a comment and if there is some critical mass, we can put something forward!

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  1. Posted 1/2/2006 at 11:20 pm | Permalink

    I guess I’m wondering what you think the hot issues are.

    A blogger is a citizen. All citizens have the same first amendment rights. Period. Of course, these rights are not absolute: a reporter can be forced to testify about a crime, for example, as can any other citizen.

    Now, some courts have muddied the waters by suggesting that journalists might have extra rights. I think that’s a bad argument under federal constitutional law; things might be more complex under state constitutions.

    Yes, there are also state shield laws. It is hard to apply these to bloggers, as they were drafted with professional journalists in mind. But that’s primarily an issue of statutory construction; and not a one-size-fits-all job either, at least not necessarily.

    There is a policy issue as to whether a national shield law would be good, but there is no chance of one.

    Maybe I’m missing something?

  2. Posted 1/3/2006 at 11:36 am | Permalink

    I happen to be a Journalist for a paper that has international printing (though I haven’t written an article for them in about two years, I’m still on the list of writers they email when they need a story for what it’s worth). I’m also a blogger.

    I started writing for newspapers when I was seventeen – the problem with courts attempting to say “professional journalists” is that as most journalists will tell you (if you go to a convention, lecture, etc) is that anyone can be a professional journalist (with or without a college or post college degree). Many Journalists are actually free lance and as my understanding of current case law goes, the idea that someone will not have to reveal their source (part of the Shield law) is based (mostly) on motive.

    For instance “when interviewing someone for this information was it while functioning as a Journalist in conjunction with the research or an article or was it for personal information and/or gain.”

    All Journalists are Citizens (actually, some Journalists aren’t Citizens the better way to phrase that is that Journalists are Civilians) as are all Bloggers – whether free lance or otherwise – so the law can easily be applied to Bloggers because the blog is just another medium for any Journalist to use – similar to Radio, Print, Zine, etc.

    – Matthew L. Schwartz

  3. alex
    Posted 1/3/2006 at 3:47 pm | Permalink

    Obviously, I haven’t thought very deeply about this, but in general terms, I think that the popularity of some of the new forms of media continues to introduce problems in differentiating mass media from other forms of media.

    Two caveats. First it is true that little is new under the sun. I don’t think anything special is happening here that couldn’t have happened on Usenet, etc. Blogging isn’t special in that regard. However, it does seem that the penetration of narrow media in the US is likely to provide more opportunities for legal entanglements.

    Second, yes, journalists are generally considered just folks; they have no special rights under the constitution. That said (oh, and IANAL), there are subtle differences in how mass media is handled in the courts, and these differences seem to be related to identity, distribution, and issues of profit.

    So, off hand, I think there are cases where–while they may not be covered differently in terms of speech rights–journalists have a special legal and social role. Shield laws are an example, though admittedly a funky one, since they do suggest a special privilege. Most of these shield laws apply to “professional journalists”–those who are employed in newsgathering for their livelihood–but Matthew’s example is not the only one that makes it hard to draw a fine line. Where is the line between Google ads and a full-time blogger? Is Scoble a professional journalist? (Not by NY standards.)

    But there are other examples. For states with laws forbidding the publicizing of private facts, what constitutes publication? It’s more than the standard for libel (any third party). What about appropriation?

    Fair use? I don’t know how many regular readers I have, but I can say with confidence that they are, say, less than 500. Let’s say I rely on fair use to publish an image (which I do), and the article is flash mobbed, and half the web sees it. I know, this is very hypothetical, but it’s also somewhat plausible. Does that mean that Fair Use goes out the window for publishing online, since it so clearly *can* have a significant negative financial impact on the copyright owner? The answer is probably yes, but if blogging (etc.) is the vanguard of our media system, is there a place for fair use. While we are at it, can bloggers rely on some of the exceptions provided for mass media: Booth rule, incidental use, etc.?

    What are the responsibilities of a blogger for the comment section? This should be pretty easy to answer, but I’m not sure it is. If one of the remarks that appears in the comments is libelous, am I responsible for it? What if it is one of the co-authors of the blog? What if I do not know who that person is in RL? Is Wikipedia responsible for ascertaining the identity of its users/authors?

    To what degree does this end up a jurisdictional issue? There are already neat examples of this, from Amateur Action through to the Gutnick case. What does the increased use of these writable technologies mean for jurisdictional issues. Is it just a matter of server location arbitrage (a la Georgia Tech in France), or is it something more permanent.

    Again, none of these issues are particularly new, and I’m not sure they hang together as a whole. But I guess what I’m wondering about is a look forward for what the areas of contention are likely to be as we move forward.

  4. Posted 1/4/2006 at 2:17 pm | Permalink

    I’m probbaly not in a position to contribute to such a panel (I blog, of course, but know little about these legal issues), but would certainly attend a panel should it take place (especially since I would be able to get there via Metro).

  5. Posted 1/20/2006 at 3:31 am | Permalink

    Are there laws to blogging.
    I think on other sites they have them, but it would be cool to see them from an internet lawyer:)
    Anna W.

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