Friday, November 30, 2007

Why No Big Blogospheric Libel Suits?

Glenn Reynolds, whose Instapundit is one of the most read one-person blogs anywhere, also teaches law at the University of Tennessee. He has published a paper in the Washington Law Review titled "Libel in the Blogosphere: Some Preliminary Thoughts" that is a must-read for any blogger who is interested in more than just pointless, incessant barking.
Reynolds notes that there has been a paucity of blog libel cases and calls that "a pretty interesting phenomenon."

I also find that pretty interesting as someone who was a defendant in several libel cases against newspapers (all but one dismissed or withdrawn, with one hung jury) and burned the midnight oil many a time editing investigative pieces so they passed libel muster.
No major libel case has emerged since the advent of the blogosphere.

Blumenthal v. Drudge, in which Sidney Blumenthal went after Matt Drudge of the Drudge Report for writing that the political journalist had beaten his wife, is the closest example because of its portentious first-amendment issues. Drudge later retracted the report and apologized, but Blumenthal filed a $30 million libel suit. He later claimed that he was forced to drop the suit because he could not afford the cost of litigation.

Highlights from Reynolds' paper:

* The Internet is no bar to libel suits per se and blogs are no more immune from them than newspapers and other publications.

* However, bloggers cannot be sued because of intemperate comments left on their blogs because of a clause in the Communications Decency Act.

*The exposure of bloggers is further limited because they usually blog about public figures and, as is the case with more traditional media, malice with reckless disregard for the truth would have to be proved.

* An ideal target for a libel plaintiff would be a rich blogger who has done substantial original reporting, as opposed to a blogger quoting published material, but few bloggers make tempting financial targets.

* Blog culture itself frowns on libel suits. Blogging economist Donald Luskin, for example, threatened to sue then-anonymous blogger "Atrios," who has since self-unmasked himself. Luskin withdrew his threat under pressure from other bloggers.

* Many blogs are more like personal diaries and do not make tempting targets for litigation. A number of the largest blogs are group efforts like Huffington Post and Daily Kos that offer mostly opinion, which is not actionable as libel.

Reynolds says that the threshold of harm in the blogosphere should be higher because blogs are not relied on as sole sources of information as, say, The New York Times, corrections that remedy potentially litigious problems can be made quickly, potential plaintiffs can easily get their own stories out, and the blogosphere is a place "with its own culture, norms, and readership."

He concludes that many traditional media organizations have been reluctant to support full First Amendment protection for bloggers and other new-media organizations.

Reynolds says this is probably unwise because big-media organizations are becoming more like blogs all the time.

And, he notes:
"The various protections that the press enjoys, both formally, through the First Amendment, and informally, through culture, are likely to be more robust if people see them as something belonging to Americans generally, as opposed to being something that is the province of a few elite professions."
Thank you, Glenn, and amen to that.

Cartoon by Gregory from The New Yorker

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