TCS Daily

Trouble Not the Blogger in his Lair

By Glenn Harlan Reynolds - May 8, 2006 12:00 AM

Last week, I wrote about efforts to silence bloggers:

"It seems like a lot of people are trying to shut up bloggers all of a sudden. It also doesn't seem to be working very well."

A week later, that still seems to be the case.

The effort to silence Maine blogger Jeffrey Dutson, with a libel suit brought by the advertising firm of Warren Kremer Paino Advertising, ended in ignominious failure. Warren Kremer Paino withdrew its suit, and the Media Bloggers Association, a blogger-defense organization, claimed victory:

"As it should be, the story of 'Warren Kremer Paino and the Maine Blogger' is now a cautionary tale", said MBA President Robert Cox, "future potential plaintiffs would do well to consider WKP's experience in attempting to silence a blog critic through the Federal courts. Our message is simple: 'Don't Mess with the Bloggers'"

A big round of thanks is in order for the lawyers who volunteered their time on Lance's behalf including MBA General Counsel, Ronald Coleman of the Coleman Law Firm, Greg Herbert of Greenberg Traurig and private attorney Jon Stanley.

"This demonstrates precisely what we have said all along," said Coleman, "Suits like this are premised solely on the anticipation that there will be no push back from the little guy. Here, there was."

Yes, but there's an important cautionary note there. Weak libel suits aimed mostly at intimidation -- as, I think, this one was -- are on much shakier ground now. Where once large, rich entities had the upper hand, now they don't. The little guy is now empowered to push back.

But that's not a free pass for bloggers. While the predicted legal superstorm against bloggers has yet to materialize, it's also true, as I've noted elsewhere at much greater length, that the Internet itself offers no immunity for libel. Some other, future blogger who clearly commits actual libel, resulting in actual damages, will no doubt discover to his or her dismay that bloggers can be just as guilty of libel as traditional outlets. Besides reading my article linked just above, bloggers may want to consult these frequently asked questions on defamation from the Electronic Frontier Foundation in order to help make sure that it's someone else who's made an example of.

Nonetheless, Ed Cone offers some good advice:

"Let's be serious: There will be successful suits against bloggers who violate copyright laws, or commit libel, or do other bad things. Being a blogger doesn't give you magic protection powers."

And as Seth Finkelstein pointed out in a comment here not too long ago, no individual blogger out of the millions who publish can count on the MBA or a national blogstorm coming to their rescue in a given instance.

But the lesson is still clear: bully bloggers at your own risk. They have rights, they are networked, and the big media pay attention to them.

You can't push the little guys around as easily as in the past. Instead of calling the lawyers, it's a better idea to get your own side of the story out. Lawsuits are frowned on in the blogosphere, but arguments aren't. The Chicago Tribune's Steve Johnson called Warren Kremer Paino's treatment of the case "hamhanded and peabrained." That's perhaps a bit kind, but it certainly provides an object lesson in how not to act, for other companies smart enough to learn. (Some good advice in how to respond can be found at the end of this article from Advertising Age.)

The next question is whether governments are smarter or dumber than ad agencies. As I write this, Egyptian blogger Alaa has been arrested by the Egyptian government. Bloggers are already responding, with cries of release the hounds!

Brutal authoritarian dictatorships, of course, are harder to influence than inept ad agencies. But it's also true that blogging dissidents get more outside support than dissidents in the pre-blog age. Arresting Alaa is certainly going to be more expensive for the Egyptian government than arresting a non-blogging dissident a few years ago. Expensive enough to change the Egyptian government's mind? Stay tuned, as we all find out.

Glenn Reynolds is a TCS contributing editor and author of An Army of Davids.


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