Bone Lace

Eugene Volokh led an interesting discussion of weblogs and the law at BloggerCon. I asked him to expand on some of the issues raised concerning weblog journalism. Volokh, a law professor at UCLA who teaches free speech law, copyright law, and firearms regulation policy, is visiting at Harvard Law this semester, where he is teaching a class and a seminar on free speech law. And of course, he's a well-known and influential blogger in his own right. We did this Q&A by email.

Q: Does the First Amendment cover weblogs?

Eugene Volokh: Absolutely, just like it covers newspapers, magazines, and the like.

Q. What protections afforded to print and TV journalists might not apply to bloggers?

Volokh: Hard to tell for sure. There are some statutes and state constitutional provisions that provide journalists *more* protection than is required by the First Amendment, and some of these statutes are by their terms limited to certain media. The hard question is whether these terms should be read as covering blogging and the Web generally, which didn't exist when many of the provisions were written. A lot depends on the particular terms of the statutes, and, when the statutes are vague, on the views of the judges. I discuss some examples -- especially retraction statutes that can decrease the liability for libel, reporter's privilege statutes, and press credentials -- here: http://techcentralstation.com/120502B.html .

Q:How much do laws on press protection vary from state to state?

Volokh: Obviously the First Amendment applies equally everywhere; but some of these provisions that provide extra protection beyond the First Amendment do indeed differ considerably by state.

Q: What do bloggers need to know about copyright laws, including the use of published and unpublished material?

Volokh: A lot, much more than I can say here. A few short tips: (1) Don't publish personal e-mail that you're sent unless you're pretty certain that the sender wanted you to publish it -- it's not nice, and it's also probably a copyright infringement. (2) Excerpt articles rather than posting the whole thing, at least unless you're responding to them line by line; copying a whole article is less likely to be a fair use than just copying part.

Q: Can you foresee a lawsuit against a blogger that might have a chilling effect on blog journalism?

Volokh:Sure, I can foresee lots of things, many of them inconsistent with each other. My guess, though, is that such lawsuits will continue to be rare, and people will continue to be willing to blog despite the risk of lawsuits, just as they're willing to write in other media. Naturally, some sorts of blogging -- for instance, blogging that focuses on accusations of misconduct that are based on the blogger's own personal knowledge -- might be deterred by libel law, even without a highly publicized lawsuit. But most blogging won't be.

Q: We discussed the example of a shareholder going to a closed annual meeting and blogging it. Could companies keep shareholders from doing this? How would that be enforced? What other limitations might be placed on citizen-journalists as the implications of a blogging populace become clear?

Volokh:Complex question, to which I don't have a full answer, since I'm not a corporate law specialist. But as a general matter, private entities may demand that if you go onto their property and to their meetings, you promise not to reveal the information you learn there, or not to quote it directly, or what have you.

Q: What other implications under press and copyright laws do weblogs raise?

Volokh: By and large, the same ones that other media -- books, newspapers, magazines, and so on -- raise. Generally speaking, the issue under most such laws is the message, not the medium. If you can say something in a newspaper, you can say it in a blog. If it violates the law in a newspaper (for instance, if it's libelous, a copyright infringement, false advertising, a threat, and so on), then it violates the law in a blog, too. There are some exceptions, but this is the general rule.

[EdCone.com]