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Friday, June 10, 2005

Blogging and Exceptionalism

Triumphalism is one of the least attractive aspects of blogs (and blawgs).  It is a well-known problem, and rests on several features that purport to distinguish blogs from other information sources.  Blogs are said to be: judgment proof willing to push the envelope;  in a permanent defensive crouch open to correction; glib irreverent; marketplaces of a wide variety of information; and ideologically balanced.  Such triumphalism has led to a second claim: blog exceptionalism. 

We can see this most clearly in Eugene Volokh's commentary about a proposed lawyer advertising rule in Kentucky.  Eugene, who is both brilliant and a first amendment guru, claims that Kentucky has proposed to require lawyers to pay regulators $50 per blog post on the ground that such posts are essentially marketing tools.  He argues that "in the era of blogging, where self-publication is a routine form of fully protected speech, and the presubmission and payment requirements are especially burdensome, the unconstitutional overbreadth of the restriction is especially glaring."  Steve Bainbridge disagreed, noting that "it's not at all clear to me that blogging ought to get a blanket exemption from the lawyer advertising rules. It's clear that many lawyers see blogging as a marketing device."  I'm with Bainbridge.  But most blawgers have disagreed, attacking the proposed Kentucky rule.

I don't have informed views on the lawyer-marketing-free-speech problem.  But I don't understand Eugene to be arguing the law is unconstitutional as applied to self-publishing lawyers in the real world,  only blawgs.  Most such sites -- even the blawg-daddy, the incredibly useful and informative, How Appealing --market their authors.  In fact, I'd have to think that the only reason that lawyers would be permitted to use firm resources (computer + lawyer time) to run a blawg is that it casts a good light on the lawyer in question. (Anonymous blawgs are clearly different).

I am finding it hard to distinguish blawgs from, say, firm published pamphlets on an area of law that the firm is expert in, with back pages that advertise the firm's services.  To argue that the pamphlet ought to be regulated, but the blawg should not, is to (once again) suggest that Internet speech should be more protected than ordinary speech.  Does this mean I think that Goldstein Howe or Howard Bashman ought to have to pay-per-post?  No.  But that doesn't mean it would offend me to require lawyers to account for their blawgs on a monthly basis or yearly basis.  And by account, I mean pay the Bar, if that is what the Bar wants the rule to be.  To the extent that we think that the rules are very onerous, we can always change them - Bar Committees are always seeking new energy and people.

Blawgers' reaction to the proposed regulation (hands off our exceptional medium, regulators!) is much like the reactions against FEC regulation of blog-political-speech,  taxation of Internet sales, libel laws, corporate reactions to employee blogging, etc.  Such protests all must, in the end, rest on the intuition that the Internet is a gangstas' libertarian's free speech paradise.

This exceptionalist claim is very troubling, for at least two separate reasons.   

  • Inequality of Access: Many folks lack the money or the technical expertise to blog, or to access the Internet.  They can't benefit by special rules protecting bloggers.
  • Federalism and the Laboratory of Democracy:  I take seriously the idea that state regulative-experimentation is good for the republic.  It is pretty clear to me that one of the claims blawgers are moving toward is that states shouldn't have the right to establish inconsistent regulation of Internet speech, even if that speech has primarily local effects (as would a Kentucky lawyer whose blog puffed outrageously about his or her skills).

So, enough with the blogging city on the hill rhetoric folks.  Blawgers are just members of the bar with a bit more time on their hands.  Right?

Posted by Dave Hoffman on June 10, 2005 at 11:45 AM in Blogging | Permalink

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Who's your blawg-daddy? At "PrawfsBlawg," Dave Hoffman has a post titled "Blogging and Exceptionalism."... [Read More]

Tracked on Jun 10, 2005 5:47:43 PM

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Tracked on Jun 12, 2005 6:40:07 PM

Comments

I think the exeptionalist claim is rooted in the fact that the internet-as-publishing-medium is more widely used by writers than print-as-publishing-medium, cheaper, etc. -- so that any regulation on internet speech/blog speech is likely to cause more impact -- more total censorship -- than an equivalent regulation on print speech. This is why Volokh notes that the per-post fee for blogs is overbroad: blogs are characterized by a frequency of posts by a multitide of people, so this requirement is much more burdensome to many more people.

Posted by: Paul Gowder | Jun 10, 2005 11:56:14 AM

Dave:

Volokh used the word "overbreadth" while Bainbridge said "[no] blanket blanekt exemption." So perhaps their positions can be reconciled. That is, if we focus on the pre-publication review and the $50/post rule, and not on granting a blanket exemption to anything called a blog, we might make sense of this situation.

Evan Schaeffer, among others, has started to analyze the issue in more nuance. The first question is whether it's advertising. Here's what the ABA comments to Rule 7.2 say: "Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele." Does Ben Cowgill's site do that? He is an ethics specialist who does respondant-side discipline work. So while it's not a direct pitch for clients, it's an advertisment just as surely as many big firm marketing pieces are. (In California, the rule (1-400) governs messages about "availability ... for employment." So, I think I'm OK, since I'm an employee-lawyer.) I think the Kentucky Bar should not grant a blanket exemption, but I think they have to adopt a realistic stance regarding the fee and the pre-publication review.

The Kentucky Bar may overplay its hand. It has a tighter, old-fashioned rule that may not survive a Constitutional challenge. I don't think a test case is in anyone's best interests, but we may get one.

Posted by: John Steele | Jun 10, 2005 1:27:37 PM

There's an interesting dynamic in reasoning-by-analogy here. Is blogging more like firm-printed pamphlets (regulated) or speeches given by lawyers (unregulated, to the best of my knowledge)? The first is the more obvious analogy, but I'm not sure it's the better one. (Especially given the role in marketing served by speeches or presentations.)

Posted by: Simon | Jun 10, 2005 6:19:22 PM

Paul has it right. I think you've missed the mark here. The issue isn't whether the internet deserves to be regulated differently. Rather, it's that the economic forces the internet brings into play change the cost/benefit of the rule itself.

Before, the wording did a pretty good job of catching most/all advertising, while having little impact on lawyer speech, since any real "speech" was likely to be published in a book or a magazine. But given the reduced costs to self publishing, the original's clever practical distinction no longer reflects the realities on the ground.

Lawyers often publish their own speech as a hobby, with little or no expectation of actaul commercial benefits. The question is, are blogs more like letters to the editor, published books, and simple coffee table chatting, or more like those legal pamphlets you referred to.

It seems clear to me that they're more like the former.

Posted by: Cyrus | Jun 10, 2005 10:24:18 PM

The key issue in my view is whether a Blog commnication involves commercial or non-commercial speech. The restrictions on lawyer advertising are based on the premise that commercial speech is involved. Do Blogs fall into this category? Some might, but many don't. I think the commercial/non-commercial distinction provides adequate protection for Blogs and avoids the need to carve out an exception for Blogs from the law otherwise applied to communications. I appreciate that the commercial/non-commercial distinction is under-developed in the law, but attempts to regulate Blogs might provide the opportunity to provide some clarity in this neglected area of the law.

Posted by: jim fischer | Jun 10, 2005 11:13:27 PM

Good comments all. John Steele notes the nuance on the definition of "advertising," and I think rightly suggests that a Constitutional challenge would be bad for the Bar.

Several of you (Simon, Jim, Cyrus, Paul) seem to me to disagree with one of my assumptions: that blogs by practicing lawyers, when identified as such, are primarily designed for marketing (with a side-benefit of self-expression). It is an empirical claim, and I guess my response is: show me.

Marketing isn't dirty (I find the commercial/noncommercial speech distinction Jim alludes to to be a particularly problematic constitutional distinction). But it is true that if the Bar can regulate off-line lawyer marketing, there are compelling reasons to allow it to regulate online as well, notwithstanding the fact that regulations that apply online will create more "total censorship" (I'm real dubious about the empirics of this claim as well. How many lawyers have blogs v. How many publish in the yellow pages?)

No one seems to be willing to take up my two objections to privileging internet speech: inequality and federalism. Perhaps those are prices that internet savvy folks are willing to bear. I'm not.

Oh, and thanks for visiting, Howard! You *are* the blawg-daddy.

Posted by: Dave Hoffman | Jun 11, 2005 11:51:22 AM

Dave: I wasn't disagreeing (although I do in fact disagree, see below) that many blawgs are primarily marketing tools. I was simply attempting to make a structural distinction to justify the legal distinction: regulation on modes of communication which are used by many people frequently is more burdensome than regulation on modes of communication that are used by few people less frequently.

The yellow pages comparision is unhelpful because publishing an ad in the yellow pages is a discrete act that only happens once a year, whereas publishing a blog is a continuous process with the primary *act* that's the subject of regulation occurring frequently.

If our test is fundamentally a balancing, then we have to recognize the increased burden that these regulations create on some forms of communication.

But you know what? I'll take up your inequality and federalism objections too. I'm always up for a challenge. :-)

1. Inequality: so what? Inequality between modes of communication is not inequality between people, and does not create any injustice unless different people can use different modes of communication. Here, we're talking about lawyers -- a high education, high income group in society, and 100% (or close to it) easily able to make use of the internet as a communications medium. So this doesn't create any injustice between lawyers.

Moreover, it might eliminate injustice between lawyers: print advertising is expensive, and many lawyers can't effectively compete on that realm, but by giving legal privilieges to near-free advertising, we even that playing field a little.

Morever, because of the fact that many (most?) blawgs are in fact mixed informative-social-commercial speech, if inequality between media were a problem, this would justify it. For the most part, the advertising-to-information ratio of print media produced by lawyers is either 80/20 (glossy phamplets with an explanation of the need for the services of the author) or 5/95 (law review articles). The former are regulated, the latter aren't. Blogs seem to have a broader range of ratios, but ordinarily have much more than 20% informative content (and what about anonymous blogs? those would be 0/100). As a matter of utility, we seem to suffer a loss when we burden that informative content by regulation.

2. Federalism: How is a blawg different from mail order wine? :-) (I don't have time right now to address this one in more detail.)

Posted by: Paul Gowder | Jun 12, 2005 10:59:35 AM

I believe that there is a significant difference between blogs and law firm glossies. Law firm glossies focus on promoting the firm's practice, describing the firm's expertise, and convincing the reader to do business with a firm. Blogs might sometimes do this, but they are primarily a vehicle for lawyers to express their thoughts and opinions on issues. The fact that blogs may make lawyers look good or more appealing to potential clients is a collateral benefit. So if a lawyer were to write a law review article or publish a book, this too might drum up business or show the lawyer in a good light, but few would call it an advertisement. Not everything that tends to promote one's image or that reflects well upon a person is an ad. What about lawyers who are newspaper columnists? Who are TV commentators? Although the line is fuzzy, the difference is that the primary purpose and content of commercial speech is to propose a commercial transaction. While a blog could certainly fall within this definition, I believe that many blogs do not. Therefore, a blanket protection of all lawyer blogs is not in order; nor is a blanket rule that all lawyer blogs should be regulated as advertisements.

Posted by: Daniel Solove | Jun 12, 2005 1:20:00 PM

I've been trying to get webloggers to snap out of their exceptionalism on many fronts for most of my two years in the blogosphere. But, I don't understand the "inequality of access" rationale presented by Dave Hoffman. The universe of potential regulatees here are practicing lawyers. If any one of them is among Dave's "Many folks [who] lack the money or the technical expertise to blog, or to access the Internet," they sound too feeble or lame to be licensed as attorneys at law.

On the "What is Lawyer Advertising?" Issue: Daniel Solove seems to be making the most sense in the Comments above -- and, not surprisingly, his distinctions are totally consistent with my presentation "weblogs aside, when are lawyers advertising?" at http://blogs.law.harvard.edu/ethicalesq/2005/06/09#a3955 . When I led the campaign this week in support of Ben Cowgill, it was because (1) KAAC had suggested that every weblog is advertising and every post a new ad (which would put most weblogs out of business), and (2) Ben's weblog is about as "un-adsy" as a weblog by a practicing lawyer on his specialty area can be . My argument is not that a weblog cannot be and should never be considered to be advertising. Instead, we must ask "when is a weblog, or any of its parts, advertising for the purpose of regulating lawyers?"

Portions of any "document" that are simply relaying the news, discussing the meaning of the law, or suggesting needed reforms, are not advertising, even if another portion of the same "document" could be deemed a direct attempt to secure clients. It would be ridiculous for regulators to pore over a law firm's summary of a recent case to make sure it correctly presents the caselaw. And, it would be even more ridiculous for the regulators to charge a firm a filing fee for every news item in one of its e-newsletters, or paper-editions. On the other hand, if the newsletter contains a pitch about the firm's expertise or results, that portion of the "document" or "communication" could appropriately be reviewd.

I believe John Steele is misreading the Model Rules Comments when he says Ben's weblog is "an advertisment just as surely as many big firm marketing pieces are," merely because Ben happens to have a practice that focuses on the subject that his weblog covers. John's approach would make every brief, CLE piece, or law review article, and everything else a lawyer writes that displays his or her expertise, "advertising" -- so long as there is some indication that the lawyer accepts clients in the area of law discussed in the "document."

The sentence prior to the one quoted by John Steele from the Rule 7.2 Comment says: "To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising." Thus, doing things that happen to enhance your reputation is distinguished from "actively" (viz., "directly", "primarily") seeking clients in an organized advertising campaign.

As I argue in my weblog post, the Comments to the Model Rules, and the Rule's structure, make it clear that they are aimed at communications about the lawyer or the lawyer's services that constitute an "active quest for clients." Therefore, advertising is communication that is attempting to sell products or services, by giving information about the provider or his/her/its services. It is not communication by or from a provider that is aimed at educating, or entertaining, provoking, persuading (etc.) the recipient on a topic other than choosing or using the provider's services. This means, of course, that some parts of a particular item or source of "communication" may be advertising while other parts of the same source are not (e.g., a newspaper, tv broadcast, or even a weblog).

For the purpose of regulating their communications to the public, all "self-promotion" by lawyers is not "advertising." You've got to apply a meaningful, limited definition of advertising to the actual facts. No blankets allowed.

Posted by: David Giacalone | Jun 12, 2005 5:57:10 PM

I would say that blawgs are different so far because no one has yet raised a complaint about blawgs being deceptive. In other words, the potential pbroblems are still too speculative. If someone filed a complaint about a blawg being deceptive advertising, than I'd have no issue w/the bar regulating it. Why can't the bar take a "wait and see" approach to new technologies rather than jumping out to regulate them up front? I know that this is not a sophisticated nuanced argument but I'm too busy practicing law to research and analyze state bars rules before throwing in my commentary.

Posted by: Carolyn Elefant | Jun 13, 2005 10:42:13 AM

Triumphal? Exceptional? Most (not all) blawg entries are self-laudatory, under-edited, under-researched, self-promotion which would never find home in a legitimate publication. I admit, they are sometimes interesting, occasionally thought-provoking but they are generally no more triumphal or exceptional than graffiti.

Posted by: Marshall R. Isaacs | Jun 14, 2005 6:34:30 PM

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