Epistemographer

Via Wired News:

The Ninth Circuit Court of Appeals ruled last Tuesday that Web loggers, website operators and e-mail list editors can’t be held responsible for libel for information they republish, extending crucial First Amendment protections to do-it-yourself online publishers.

Something about this ruling seems to conflict with the Universal v. Reimerdes decision from a few years back, which hinged on the posting of the DeCSS code by those scamps at 2600, and their subsequent posting of links to the DeCSS code elsewhere once they were enjoined from posting the actual code (see coverage from Wired here and here). The upshot was that 2600 was found to be responsible not solely for its own speech, but also for the speech to which it referred as a mediator. Didn’t matter what kind of publication was doing the linking…so long as the material being linked to violated the DMCA, the linker could be held responsible.

This more recent decision, on the other hand, seems to rely on a different conception of the blogger as a mediator between reader and information:

“One-way news publications have editors and fact-checkers, and they’re not just selling information — they’re selling reliability,” said Cindy Cohn, legal director of the Electronic Frontier Foundation. “But on blogs or e-mail lists, people aren’t necessarily selling anything, they’re just engaging in speech. That freedom of speech wouldn’t exist if you were held liable for every piece of information you cut, paste and forward.”

This shifts the argument from the nature of the information being linked to, to the nature of the person doing the linking, drawing a boundary that means that the exact same link (and hence the exact same speech) can be legal or illegal. The moral of the EFF quote above seems to be that blogger linking/excerpting is exempt from legal liability because bloggers aren’t selling the reliability of their information, but are simply “cut[ting], past[ing] and forward[ing].”

So, we’re left with an image of bloggers as invisible and frictionless mediators of information, while the “one-way news publications” are responsible for the editing and quality assurance of its product. Seems reasonable, until you look at the boundary, and realize that it’s rather fuzzy and gray. I tend to think of blogs (especially those like Talking Points Memo or Andrew Sullivan) as eroding the constructed idea of the editorial press on its pedestal, rather than serving as foils that reinforce it. Along those lines, where would Drudge fit in this schema?

This entry was posted on Tuesday, July 1st, 2003 at 2:32 am and is filed under Technology. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.