TCS Daily


The Coming War on Blogs

By James D. Miller - March 25, 2005 12:00 AM

It's a universal law of capitalism: when an industry faces a new and significant threat to its profits and powers it turns to the government for protection. Well, bloggers who write on current events are challenging the mainstream media (MSM), the most politically well-connected industry in America. Watch for the MSM to start using their political influence to burden bloggers.

But won't the First Amendment protect blogs? Unfortunately, courts already hold that many governmental restrictions on speech don't violate the First Amendment, and I can think of three areas in which the MSM might successfully change laws and regulations to hinder their blogger competitors:

1. Campaign Finance Reform -- Blog entries in support of a candidate could be considered political contributions to that candidate. The danger for most bloggers would lie not in contributing more than the legally permissible amount to a candidate, but rather in having to fill out the paperwork necessary to report their "political contributions".

The MSM, of course, would never permit their editorials in favor of a candidate to be considered political contributions. So to use campaign finance reform against bloggers, courts would have to distinguish between bloggers and the "legitimate" media. Any definition of bloggers will be imprecise, but this won't stop courts because most legal categories already have fuzzy boundaries. To define a blogger, courts could simply use the "I know it when I see it" approach famously employed by Justice Potter Stewart to determine whether something constituted hard-core pornography.

2. Libel Law -- The MSM used to fight aggressively against any expansion of libel law, but I predict this soon will change. The MSM can handle the burden of defending itself from libel suits much more easily than bloggers can. By increasing the scope of libel law the MSM would impose costs on all journalists which they, but not bloggers, could absorb.

3. Copyright Law -- Blogs often use information from other sources and, from what I have observed, sometimes flagrantly violate copyright laws. Imagine if Congress increased the complexity and penalties of copyright laws. Non-lawyer bloggers could never be sure what constituted legal fair use of MSM stories and information. Enhanced copyright laws could have a chilling effect on blogging.

In a fight against the MSM, blogs have two significant weaknesses: lack of monetary and legal resources. Most bloggers already lose money on their blogs. A small paperwork, monetary or legal burden imposed on bloggers would drive many of them to extinction. Expect the MSM to exploit this weakness.

The Democratic Party will likely assist the MSM in their attack on blogs, not because most blogs are pro-Republican but because blogs are not as consistently liberal as the MSM. John Kerry, for example, is calling for the government to do something to protect the MSM. As he said in a recent speech:

"The mainstream media, over the course of the last year, did a pretty good job of discerning. But there's a subculture and a sub-media that talks and keeps things going for entertainment purposes rather than for the flow of information. And that has a profound impact and undermines what we call the mainstream media of the country. And so the decision-making ability of the American electorate has been profoundly impacted as a consequence of that. The question is, what are we going to do about it?"

The Republicans will, I hope, realize that on average their interests are served by protecting blogs. But the Democrats and the MSM will still use the courts and regulatory agencies to attack bloggers, and if the Democrats ever retake the Presidency and Congress expect "media reform" to become a top priority.

The founders of our great country expected that different interest groups would seek to use the political process for their personal gain. So in seeking to get the government to hinder bloggers, the MSM will be acting exactly as men such as Alexander Hamilton would have predicted. And Hamilton would not have expected the courts to save bloggers. Rather, he would have hoped that bloggers themselves would politically organize to fight back against the MSM.

James D. Miller writes The Game Theorist column for TCS and is the author of Game Theory at Work.

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