Monday, April 09, 2007

Bloggers' Codes and Blogs as "First Amendment Institutions"

In a piece published last year called "'Or of the [Blog]'" -- a title that draws on Potter Stewart's classic speech, "Or of the Press" -- I argued that we should think about blogs as a kind of autonomous institution under the Press Clause, and "draw the contours of blogs' institutional autonomy in a way that is appropriate to blogs as an institution," drawing on the institutional "purpose, value, and nature of blogs." In particular, I argued that "the norms developing in and around the blogosphere -- both bloggers' norms and readers' norms -- suggest the development of [a collective] institutional framework that may collectively do much of the verification, correction, and trust-establishing work that established news media institutions do individually." I argued that such an approach might encourage courts to "give blogs substantial autonomy to act, while monitoring the development of norms of behavior in the blogosphere and encouraging blogs to develop rules of conduct that deter the worst of the social ills that might emerge from the blogosphere."

Comes now the New York Times, which reports today on some bloggers' efforts "to create a set of . . . guidelines to shape online discussion and debate." The article is mostly a collection of anecdotes about incivility on blogs, and isn't that helpful, but the proposed guidelines and other relevant materials are available here and here. One interesting aspect of the proposal is that, in the Times's words, it suggests that blogs might pick among a number of different sets of guidelines, representing different norms and different degrees of self-regulation, and post a corresponding "badge" on their page "to indicate to readers what kind of behavior and dialogue they will engage in and tolerate." So the guidelines themselves indicate that different blogs might conform to different levels of self-regulation, which in effect would certify that a particular blog meets one among a number of different standards of civility and trustworthiness.

Some comments: First, as my article suggests, whether we formalize these developments or not, they are inevitable; of course various norms of conduct are emerging and will continue to emerge in the blogosphere. Second, to connect the story and my article, we might in turn use different levels of self-regulation to gauge the appropriate level of legal autonomy enjoyed by each such blog. Alternatively, we might allow a diverse number of norms to develop and compete, slowly developing a sense of rolling "best practices" that gradually would help shape the legal norms governing speech in the blogosphere. (This kind of approach should be familiar to fans of the scholarship of this blog's paterfamilias, like this article.) This is not to say that every blog cannot claim the protection of general First Amendment principles. But self-regulatory norms often help shape the development and application of those general principles. For example, a variety of institutional norms observed by mainstream media institutions often serve as evidence that those institutions were acting without actual malice, and so help to insulate them from defamation claims. The same thing might occur in the blogosphere, drawing on a different set of self-regulatory norms to help define the level of responsible conduct at which a blog would be largely insulated from liablity for various speech acts.

Finally, the Times article is directed mostly at civility norms. But, for social and legal purposes, that is hardly the only pertinent issue in the blogosphere. To the extent that the blogosphere also engages in original reporting of facts, another issue is how to develop blog-specific norms of trustworthiness and accuracy. Those norms might well look different from, say, the ways in which newspapers self-regulate to meet those criteria. For example, while newspapers' correction mechanisms often function internally, through layers of reporting and editing, blogs might correct externally, through a system of linking and commenting. But there is no doubt that, whatever shape those norms take, they will be important both for social and legal purposes as blogs increasingly engage in primary reporting rather than mere reaction and commentary. The guidelines don't say much about such norms, although the Times piece suggests that one of the set of proposed guidelines would require bloggers to "get a second source for any gossip or breaking news they write about." That's certainly one way to go, although, again, it seems to me that the guideline authors should think about ways in which blogs might take advantage of the blogosphere itself to fulfill an accuracy and error-correction norm, such as pledging to link to contrary evidence or update posts to reflect new information.

I welcome other suggestions. In any event, I think the guidelines debate is one that is inevitable and worth having, and that the ways in which blogs debate and practice norms of self-regulation will have an important long-term impact on the ways in which the law itself responds to the blogosphere.