Thoughts About a "Bloggers' Legal Defense Society"

Have you seen Jeff Jarvis's post about a "Bloggers' Legal Defense Society" and Denise Howell's response? Lawyers who are webloggers--indeed, all webloggers--would be wise to read and comment on the exchange.

The issues: To whom can webloggers turn when they are threatened with frivolous litigation by corporations and big-media concerns that object to what they've written?  And is there a need for a organization that could spearhead representation for webloggers, pro bono or otherwise?

While I disagree with Jeff's generalization that "of course, bloggers can't afford lawyers of their own," I also think that the defense of weblogging and webloggers raises First Amendment and copyright concerns that might equate to exactly the sort of "big, politically charged issue" that Denise thinks it isn't. When I spoke to my class-action lawyer friends at Carey & Danis about the issue yesterday, for example, they had their hackles raised at the thought of corporations and big media interests pushing little guys around for merely speaking the truth.  (It was Stay of Execution, by the way, that first alerted me to Jeff's post.)

Here's what my lawyer friends and I concluded: In the right set of circumstances--for example, matching contributions by AmLaw 250 defense firms, as well as offers of pro bono assistance from large firms when an in-the-right blogger really can't afford help--we would be willing to invest time and money into starting an organization that would serve as a clearinghouse to get threats into the hands of lawyers who would be prepared to deal with them. 

With this said, I don't mean to detract from the fine work of the Chilling Effects Clearinghouse, and Denise has a good point that in setting up a blogger defense society, "[t]he organizations involved in Chilling Effects, along with Stanford's CIS, should be the first line of inquiry."  But I'll be thinking about this issue some more all the same . . .

In the meantime, someone has got to come up with a better name for this effort than the "Blogger Legal Defense Society."  It's a poor name for a number of reasons.  Why not a name that would emphasize the big issues for which the organization would stand--something along the lines of "Right to Comment" or "People's Voice"?

Comments

[Denise Howell]

To clarify, for me personally it is a big, politically charged issue, and I'm the kind of person who would want to fill my pro bono plate with this kind of work. The point I was trying awkwardly to make is I think, as far as the universe of lawyers goes, I'm in the minority. I can think of lots of other issues out there competing for scarce pro bono hours that others would find more compelling. Which doesn't mean it'll be impossible for bloggers to find pro bono representation, it just means in order for that to happen there has to be an effective mechanism for matching those in need with those able and inclined to help.

[David Giacalone]

Maybe we should say "volunteer" lawyer services, rather than using the "pro bono" terminology that for most non-lawyers is either confusing or suggestive of charity for poor people.

Like Denise, I believe the pool of lawyers who might want to take on this cause as volunteers, because they believe the issues are important for personal or professional reasons, is rather small. On the other hand, the organizations mentioned, as well as many professors and law students, should be in the lead -- as clearing houses for facts and as "back-up" resources for legal research and the drafting of pleadings.

[JR]

David: I think you suggested that even we law students could help by doing research, etc. for the attorneys taking the cases. Is that an accurate interpretation of what you wrote?

[Evan]

Denise: Thanks for clarifying. I admit to be being naive about the way large law firms divvy up their pro bono work. But maybe the pro bono aspect isn't of primary importance anyway. Most webloggers are not without resources, and I think the idea is a good one no matter how big a role pro bono or "volunteer lawyer services" plays in it.

By "idea," by the way, I mean an organization that would match the person-with-the-problem with a lawyer. I don't know whether the organization would perform any actual legal work--the potential liability and malpractice issues would be simpler if those were assumed by whatever entity employed the lawyer doing the work. The organization would be more of a clearinghouse for information about rights and responsibilities as well as the first stop for webloggers with a legal problem who need to be matched up with a lawyer.

Another thought: maybe this organization should embrace freelance writers of all types, rather than being limited exclusively to webloggers.

[Federalist No. 84]

To whom can webloggers turn when they are threatened with frivolous litigation by corporations and big-media concerns that object to what they've written?

I think there are two solutions.

Non-legal
First, let's get any legal problems resolved without resort to legal processes. If BigMedia leaned on me, I would make sure that every high hit blog (and The Smoking Gun) knew about it. It would be in the self-interest of every big blogger to make public the threates. I would post the offending letters on my blog. I would turn it into a PR disaster for the media organization.

Legal solutions
If the bloggers are afraid of being sued, then they should get smart now: Start networking with the ACLU and other civil libertarian organizations. Spread the message about blogging. Encourage groups like the ACLU to start a blog. In other words, make blogging more mainstream (and thus "respectable") by bring the mainstream to blogging.

I think that there would be a lot of interest in helping a blogger in need. There'd be major free speech issues. I'd call Lessig if the big guns leaned on me. I would call law professors who blog.

It would be in the selfish interst of every legal blogger to help me, since bad law as to me would be bad law as to everyone.

If the threats from BigMedia were frivolous, I would ensure that respective state bar knew about it. I would then sue every lawyer and corporate executive who approved or assisted with writing the letter.

Of course, I don't have too much respect for people who want something for nothing. Bloggers who are afraid of being sued should get together a couple of grand. They could not raise enough money for Floyd Abrahms, but they could raise enough for a good First Amendment lawyer who would appreciate having someone offer a little scratch (goes a long way to offer everything you have, even if your everything is not much).

Then, find a good lawyer who's willing to take this couple of grand to create a "How Not to be Sued and What to Do If You Are" guide. Create a support network.

Sadly, nothing I've said will be implemented until someone is sued.

[Federalist No. 84]

I'll also add that bloggers must remember that backing down is sometimes best.

Sometimes people at my blog become rabid dogs (well, more like weak squirrels, but rapid squirrels are still dangerous!). Once I realize that they are too stupid to be reasoned with, and too unstable to further upset, I stop talking. For example, I recently received this doozie, which I reproduce in full: "Irresponsible, factually inaccurate and pretty juvenile. You have no idea what you are talking about." Am I going to follow-up? Of course not. Is it because I'm afraid to fight? Nope. It's because fighting is not worth it. There is no principle involved, and there is no way to win.

Also, bloggers have to remember that unlike other writers or journalists, we do not get paid to deliver breaking news. If you publish something that upsets someone, for gosh sakes, consider pulling the piece. A blogger should never let blogging - a hobby - dicate decisions that will effect his or her real life. It's nice to think we're important and that we have readers and stuff...but the world would not end if any of us left. But our families might leave us for getting embroiled in stressful and time-eating litigation.

BUT, if someone said they would sue (rather than flame) me for something said on my blog, I would probably initiate the tactics discussed in my previous comment. But not if I were not a legal blogger.

Of course, I would fight it out only because such high profile litigation would serve a long-term purpose for me (re: publicity for me and my firm and after people see my tactics, clients for me). If I were not going into the practice of law, then i would back down in a second. Who needs to have a life ruined in the name of a hobby?

[JR]

"Sometimes people at my blog become rabid dogs (well, more like weak squirrels, but rapid squirrels are still dangerous!). Once I realize that they are too stupid to be reasoned with, and too unstable to further upset, I stop talking."

I recently learned a new term: internet troll.

If you are unfamiliar with this term, it is worth a trip to the site I have linked to.

[David Giacalone]

JR, Yes, I believe (some) law students can do useful research, brainstorming, drafting of documents, etc., that could be in a data bank available to lawyers interested in this subject. I'm not saying that they should be writing final drafts, but -- especially if filtered by a law professor or other expert -- their memoes can be a good resource.

Of course, many law students do summer or parttime jobs at law firms in which they do basic research on specific topics for their supervising lawyer, or do research projects for professors contemplating an article. As a 1L, I did a major research project for Calif. ACLU, when it was contemplating a suit against L.A.'s Alpha List, which categorized juveniles as troublemakers even before they had any contact with the legal system.

Here, a data base [with suitable disclaimers] in which lots of hypotheticals are addressed in memoes could be quite useful, I believe. Some of them might even help webloggers understand that there are at times legitimate limits on what they can say and use at their weblogs.

[Kevin J. Heller]

Just to clarify. Jarvis' posted on: Thu, Dec 2 2004 3:13 PM and I posted at Dec 2 at 9:44 am since neither of us time-stamp our posts. Not that I need to be credited with making the suggestion in the first place: see here.

Also, there is a solution -- the name escapes me but it's a type of collective insurance where everyone who belongs has to pay some premium and then the premium is used to hire a single lawyer to handle everything. That was my thought anyway.

[Martin]

I think one would be hard pressed to find an insurer who would take on a "collective risk" like this. This is because the organization of bloggers is not subject to any internal discipline or control. For group insurance to have any chance at working the risk need to be relatively similar. I don't see that happening with blogging because one can not control another blogger's actions. Bloggers would have to form some sort of guild that had rules of behavior and proper discipline for violation of the rules. That sounds like a partnership and that does not seem to fit the blogger model well. This implies then that each blogger will have to be underwritten separately and we are back to the original problem ...

[Kevin]

My idea was for a Blogger Reciprocal Insurance Exchange.

The rationale behind a reciprocal insurance exchange is for individuals who could not otherwise afford insurance pool together companies to establish an insurance coverage policy in a reciprocal agreement. The agreement is designed to cover specific areas of liability common to a particular industry. In this case coverage for libel, copyright infringement, claims arising out of privacy, plagiarism, piracy and would provide members immediate access to counsel.

[kevin]

bad grammar above -- The rationale behind a reciprocal insurance exchange is for individuals, who could not otherwise afford insurance, to pool together to establish an insurance coverage policy in a reciprocal agreement.

[nivek]

Evan,

Sorry for screwing up your comments maybe you should just ban me.

Kevin

[Martin]

A reciprocal does make more sense, but I think we have the other problems with a reciprocal. One must trust all the other participants and they must not be judgment proof (so David G is out). Reciprocals work fine if (1) everyone is facing the same kind of risk or, if facing different risks, they can be properly priced and (2) are made of of individuals who are willing to pony up more money when the need arises.

(Reciprocal members put money into the the reciprocal (equity) and then are charge a premium to cover risks. If the reciprocal has to make a liability payment or engage in defending a member, it expends its resources. If it does not have enough in reserves it can then come after the members for a further contribution.)

The last thing you want is the reciprocal to break down the day Acme Products sues you for posting the trade-secrets underlying its new Roadrunner Catching Device.

A reciprocal may be an ok way of doing this but, it too, has risks.

For most people an umbrella policy with a relatively large liability coverage is pretty cheap. The coverage covers auto, homeowner, and personal laibility and it is likely to be only a couple of hundred dollars more than the homeowners+auto coverage by themselves. For the hobbiest blogger, this is likely to be the best option as one deals with a real insurer which has the economies of scale of doing this type of coverage.

Note: I do not have an insurance license nor am I licensed to practice law on the internet. Your mileage may vary.

[Nic]

*Opens can...*

Can lawyers who blawg not just get a "blog rider" on their legal malpractice poilicies?

*...pours worms in comments thread.*