I believe that there are many legacy journalists, like Seattle Times Crown Prince Ryan Blethen, who are just itching for some demi-prominent blogger like me to be hauled into court on a lengthy and expensive libel suit. It would serve us right, I suppose Blethen must think, and it would serve as a warning to other bloggers to hold their tongues lest, win or lose, they too suffer the same devastating financial consequences. At least, I believe that this is the sentiment that guides the younger Blethen when he warns bloggers against the potential legal consequences of speaking our minds.
There is nothing wrong with pushing the limits of the First Amendment, but there is a line where free speech can go too far and real damage is done. Bloggers are writing past this line and finding themselves in trouble.
The common refrain from bloggers is that they have a right to say what they want, especially if it is their opinion. Whatever that opinion is, it needs to be grounded in fact. If it is not then the writer runs the risk of being sued for libel, which is a false statement that damages a person’s reputation.
Of course, I assume that Blethen also understands that unlike he and the writers in his employ, bloggers like me have no corporate parent to shield us from the legal costs of a libel suit, and that even successfully defending ourselves against such a charge, even a legally weak one, could cost us our savings, our house and our children’s college tuition.
And Blethen apparently believes that, not only could we bloggers be subject to such an asymmetrical use of legal force, but that we should be subjected to it, if only to compel us to “check [our]selves, and use a modicum of restraint.” For why else would he issue such a haughty exhortation?
If bloggers don’t learn to check themselves, and use a modicum of restraint, then not only will people get hurt but free speech could be irreparably damaged.
Yeah, well, thanks for the sage advice Ryan, but I don’t need the editor of one of the most poorly written op-ed pages I’ve ever had the displeasure to read, opining to me that “words matter,” and in light of your ed board’s penchant for harnessing lies of omission in the service of advocacy, I certainly don’t want any lectures from you about opinion needing “to be grounded in fact.” But what really galls me here is the notion that the editorial page editor (and son of the publisher) of a major American daily appears to be arguing in favor of forcefully using our libel laws to rein in free speech. This is a status quoist argument of the worst kind, and its only possible consequence would be to encourage and embolden those contemplating the use of legal intimidation to chill dissent and cut short the public debate.
Not that they need much encouragement.
It was during the very early days of HA, before the gubernatorial recount, at a time when my daily readership rarely climbed into triple digits, that I received my first threat of legal action, a behind the scenes heads up from a “friendly” intermediary who cautioned that I would be wise to heed the litigious nature of one of my frequent subjects, and instead focus my efforts somewhere else. Our local media for the most part chickened out and buried the story, but I followed through in the only way that I know how—full throated—while my subject eventually contented itself with suing media outlets in its native Canada. (Canadian defamation law is much more favorable to the plaintiff.)
In the years hence I have been threatened with legal retaliation again and again—sometimes in my comment threads, sometimes via email, and sometimes to my face—from joyous trolls celebrating the thought that I had finally and recklessly “crossed the line,” from anonymous scolds masquerading as attorneys, and from scolding attorneys betting that I would be too stupid or too cowardly to stand up for my rights, or like them, too rationally self-interested to risk my financial security for the sake of a mere ideal. And never once have I come close to backing down.
Oh, I take these threats seriously, and when I receive a specific complaint about a specific post, I scour it for demonstrably erroneous statements of fact. But my opinions… the dots I connect and the conclusions I draw… the beliefs I profess… even the invective I hurl… I defend my right to free expression in the same way that I defend the right of my vile, hateful trolls to refute, insult and threaten me in my very own comment threads. And that is what Blethen, heir to a dead tree publishing throne, obviously doesn’t understand about this new medium. HA isn’t a “publication,” and my words aren’t “spun off the press” in some inviolable, datelined tome. A blog is an ever evolving dialectic, a give and take, a living conversation between writers and readers, and readers with each other, and between one blogging community with the blogosphere as a whole. HA may be my own personal realm, but the world is my fact checker.
Under the old paradigm, where the scarcity of the airwaves and the huge financial barriers to market entry left the bulk of the media in the hands of a powerful and wealthy few, the libel laws were often the best or only defense against the indiscriminate, negligent, and malicious misuse of the power of the press. But in this new medium, this distributed, democratic and decentralized paradigm of the Internet, the best defense against bad journalism is more journalism, the best remedy for falsehood is the truth, and aggrieved parties should only look to the courts as a desperate and last resort.
Disagree with my conclusions? Don’t sue me… participate! Engage in the comment threads, demand a guest post, enlist the help of my rivals to publicly kick my ass, that is, if you really have the goods to do some real ass kicking. Refute my arguments, prove me wrong, hell… destroy my credibility! But in a media landscape increasingly dominated by freelancers, contractors and lone wolves outside the protection of deep-pocketed corporate overlords, the mere threat of costly legal action to resolve disputes threatens the viability of the medium itself, potentially shielding those able to afford attorneys from legitimate criticism by those of us who cannot.
So when Ryan Blethen, a child of the media establishment, warns us upstart bloggers to “understand the consequences of free speech,” I can’t help but suspiciously view his admonitions within the broader context of the struggling newspaper industry, and the perhaps unrelated but increasingly hotter legal climate in which my blogger friends and I have recently found ourselves. For in addition to the usual background noise of threats and half-threats, actual (ugh) lawyers have suddenly started crawling out of the woodwork.
It was only last year that Michael at BlatherWatch received a series of escalating threats from (since disbarred) attorney Bradley Marshall to pull a two-year-old post or else, an ultimatum Marshall only backed down from after a heartening show of force from Michael’s friends in the local blogosphere. And it was merely a couple months ago that local attorney and vocal Death With Dignity opponent Margaret Dore presented me with a deeply furrowed brow and 143 pages of rambling legalese demanding I pull Lee’s thorough fisking of her weakly argued guest column in the Seattle Times. (It occurs to me that Blethen’s sudden bloviation on defamatory blogging may have partially come at Dore’s insistent urging; I dunno, but I believe that would be consistent with both of their characters.)
But perhaps a classic example of the kinda everyday harassment to which we bloggers routinely subject ourselves is playing itself out right now in a comment thread on a post by my friend Carla at Blue Oregon, in which a horde of anonymous, code-word spouting finger-waggers are attempting to pressure her to back off from the sort of value-added, conceptual journalism that has become her hallmark, and that has become so crucial in recent years in keeping our local media and political establishment honest. The irony apparently lost on Carla’s critics, and which stands out as so pertinent to me in the context of Blethen’s blogger-beware pontification, is that the “not-so-idle speculation” for which Carla is being attacked and threatened was a direct response to equally speculative reporting in the pages of the Oregonian:
The appointment, announced Wednesday, raised some eyebrows among Salem insiders because Galizio made a dramatic about-face and provided the crucial vote to bar a resort from being developed near the Metolius River — an outcome Kulongoski desired.
See that? The Oregonian impugned the reputation of a government official based merely on raised eyebrows and unsupported speculation, but that’s okay, because as Blethen points out, professional journalists are “trained” to know the “difference between fact and opinion.” But when Carla, who has arguably covered the Metolius controversy and the political maneuvering around it more thoughtfully and thoroughly than any other journalist in the state, reaches deep into her reservoir of knowledge, lays down the facts as she knows them, and then dares to suggest that it is her “belief” that this damaging story was fed to the press by lobbyist Hasina Squires… she’s suddenly accused of crossing Blethen’s “line where free speech can go too far and real damage is done.”
Posted by: Just Saying | Aug 22, 2009 9:56:43 PM
Carla – One specific thing you seem to not have a grasp on with regard to what actually separates investigative journalism from slander: You’ve run with a story making a specific accusation against a person without any confirmed facts.
Posted by: Sal Peralta | Aug 23, 2009 9:25:35 AM
I have no idea whether Carla’s accusation is defamatory in any actionable sense. But insofar as Oregon’s defamation standards are concerned, there is really no reason to suppose that there is a different standard for bloggers than there is for journalists. I think that the main reason why some bloggers have avoided legal action for defamation in the past is not that there is any special protection for bloggers relative to journalists, but that the pockets of most bloggers and their publishers are usually not deep enough to make it worthwhile to sue them.What matters is whether a defamatory statement was published, did the statement cause damages, and was the statement defamatory per se. This was couched as a matter of opinion, which is usually protected unless the opinion implies the existence of some undisclosed “facts”.
All things considered, I’d be surprised if Ms Squires doesn’t ask for a retraction.
Posted by: Just Saying | Aug 23, 2009 10:20:39 AM
Why do you think having just the basis for just a suspicion, no matter how factual that basis might, protects you if you cross the line into making a specific accusation against someone if you don’t actually have specific facts identifying the person you accuse? … The fact remains that you have made an accusation that impugned a person in a public forum…
Posted by: Just Saying | Aug 24, 2009 8:09:03 AM
It’s up to the system to decide if Carla has defamed the person she accused of a nefarious act if it were to come to that. … And, by the way, although it could be a whole lot easier to defend in a defamation action if they could prove the accusation were true, it still could be defamation if the jury decided it was defamation based on other considerations. Tricky business, and it’s part of where the whole movie cliche of having ‘two confirming sources’ before going with a story comes from.
Posted by: Jack Roberts | Aug 25, 2009 2:11:34 PM
[I]f Hasina had her lawyer write to Carla and to BlueOregon demanding a retraction, I’d strongly urge you to consult a lawyer before ripping off a hot-headed response, especially in the form of a BlueOregon post.
Posted by: Jack Roberts | Aug 24, 2009 10:40:06 AM
Oh, and Carla, the legal standard for defamation for a “public figure” (which probably does not include Hasina) is saying or writing something that you know is false or with reckless disregard for its truthfullness.
[…] There is a reason that newspapers keep defamation lawyers on retainer.
And so on and so on… but I end with and emphasize that last comment because it gets to the heart of the issue as I see it, for there are indeed reasons why newspapers keep defamation lawyers on retainer, not the least of which being that it acts as a deterrent against the sort of frivolous lawsuits Carla’s commenters would like to scare her into thinking she has opened herself up to. This thread, particularly the comments of Jack Roberts and the anonymous “Just Saying,” is nothing if not an act of intimidation intended to bully Carla into thinking twice before she ever publicly criticizes the likes of Squires and other establishment stalwarts again, and in this service the commenters employ the sort of shameless and selective legalistic bullshit that lawyers often use to buffalo laypeople into submission.
[As an amusing aside, actionable defamation requires evidence of harm, but accusing a lobbyist of successfully planting stories in the press is like accusing a clown of making people laugh, and would actually enhance her professional reputation, not hurt it. Hell, I wouldn’t want to hire a lobbyist who couldn’t influence the media—it’s part of the job description—so what’s Squire’s gonna argue in court? That Carla has damaged her ability to surreptitiously plant stories in the press by accusing her of surreptitiously planting stories in the press? For all their helpful advice, that’s a subtlety of defamation law which Roberts and Saying conveniently ignore.]
This thread isn’t about journalistic ethics; if it was, the commenters would be just as outraged at the Oregonian’s speculation as they were about Carla’s. And it certainly isn’t about defending a lobbyist’s honor; even if the Oregonian piece wasn’t retribution for crossing Squires, it’s sure as hell in the interest of her future clients for legislators to think so.
No, this thread is about bullying bloggers, pure and simple. And that’s one of the reasons why I find Blethen’s column, with its non sequitur anecdotes of online transgressions, and its patronizing advice to all us untrained journalists, so goddamn irritating, because bloggers are more vulnerable to defamation suits than the corporate press, and everybody knows it. And people with money and/or law degrees don’t need any further encouragement to use this vulnerability to their unfair advantage.
Now, to be perfectly honest, demi-prominent bloggers like Carla and me, with our relatively high profile and strong connections to the national Netroots, aren’t nearly as vulnerable as some others might be. No doubt if a Margaret Dore or a Hasina Squires were to actually file suit, we would likely find more than adequate pro bono First Amendment defense, while the plaintiffs would quickly find themselves the subject of national ridicule at the hands of our outraged colleagues. And as fellow blogger Dave Neiwert (Orcinus, Crooks and Liars) routinely responds when he’s threatened with a defamation suit of his own: “My attorney and I look forward to discovery.”
But the blogger-beware meme put forth in Blethen’s column and in Carla’s comment thread and in any number of threads like it, advocating that libel laws that evolved to fit the contours of the old media can and should be used to cow and control the practitioners of the new, is a very real threat to the viability of the blogosphere as a meaningful and credible medium for disseminating dissent and facilitating public debate.
The letter of the law be damned, as a non-attorney I’m arguing that our defamation statutes should not apply to bloggers in the same way that they apply to the corporate media because given the nature of the medium, the limited financial resources of the defendant, and the many new avenues of recourse available to the plaintiff to address perceived wrongs outside the purview of the courts, to do so would upset the careful balance our legal system has heretofore carved out between the rights of the aggrieved and the fundamental constitutional right to free expression.
The fact that bloggers like Michael, Carla, Dave and I routinely receive vague and not-so-vague threats of costly legal action is testament not to the poor quality of our journalism, but rather to the lack of protection we are guaranteed under established law. None of us are afraid of losing a libel suit, but all of us are rightly concerned with the potential cost of fighting one. The irony is not lost on me that in breaking the feudal grip of the corporate media masters, our new generation of independent journalists has lost the feudal protection of our former lords as well, putting our personal financial security at risk with every critical word we write.
And to what end? Carla’s critics are right that couching a statement with “I believe” is not a defense in itself against a legal finding of defamation, but look how petty they are in pushing their case. “It’s my belief that Hasina Squires fed the Galizio story to the Oregonian,” Carla writes after laying out the facts that led her to come to this conclusion, and for this they would cheer on a civil prosecution that could ultimately bankrupt Carla and her family? Is this really the proper balance the framers of our defamation laws sought to strike?
I don’t think so, but if that is the law, then I adamantly believe that the defamation laws should be changed to reflect the shifting balance of power between plaintiff and defendant in the decentralized media that is coming to dominate the Internet. Blethen is right that there is a line that is too frequently crossed when it comes to bloggers and defamation, but he’s wrong about who is crossing it, and in what direction.