Back to the Drawing Board, Mr. Law Professor

In this week's New York Times Magazine, Jeffrey Rosen, a journalist and law professor at George Washington University, has written a dismissive article about weblogging. (Link from Inter Alia.) Rosen uses the article to bellyache about a number of things, including two law-student weblogs, Ambivalent Imbroglio and Life, Law, Libido. These weblogs are listed in a section about "unscrupulous" webloggers; for all the moralizing Rosen does in his article, about which more later, I wonder if he bothered to contact the authors of these weblogs before pointing fingers at them.

To my mind, Rosen's article is part of a long-predicted backlash against weblogs that will probably continue for a year or two as the mainstream media resists their growing popularity. Some of the defining characteristics of these pieces will be a mention, without much explanation, of the huge number of weblogs (the metaphor is that of a growing virus that puts all serious-minded citizens at risk), and a reminder that weblogs don't have editors. Both are features of Rosen's article. A third characteristic will be a belittling tone; a fourth will be an implication that many weblog authors are abnormally interested in the prurient; and a fifth will be errors of fact that betray the author as a sloppy researcher. Rosen's article also bears characteristics three through five; if you want a factual error, he defines "blawgs" as a type of weblog in which "law students across the country record their musings about their daily experiences in law schools."  This definition is just plain wrong, and I wonder how it could have happened. Didn't Rosen have an editor?

One of Rosen's main gripes about weblogs is that their authors often don't respect the privacy of ordinary citizens and are apt to publish private conversations or overheard snatches of dialogue that should remain in the private sphere. Here Rosen is on solid ground. It made me wonder about my own privacy policy, which I've decided is more or less as follows--

• In my private dealing with others, I assume everything is off the record unless we agree otherwise. This policy encompasses conversations with other webloggers. The only exception is for statements by public figures at public gatherings.
  
• A person's name is not posted without permission unless it already appears in a print publication or the person's own weblog. 
• E-mails are not posted without permission.
• Overheard snatches of conversation might be posted unless I think someone might identify the source.

Is this policy too stringent? Not stringent enough? Rosen's privacy suggestions have more to do with the targets of weblogs than with their authors: if you're a weblog target, he suggests suing the author or "shaming" him.  I'm not sure exactly what the latter method entails, except presumably it would include mentioning the weblogs or their authors in a dismissive article written for The New York Times Magazine, as with the two weblogs listed in the first paragraph of this post.

At least Rosen didn't sue them.

UPDATE: Will Baude responds to the article, as does Professor Smith, Tech Law Advisor, Jeremy Richey's Blawg, Mackenzie's Weblog, Chris Geidner, Denise Howell, and Dennis Kennedy.

Comments

[Frankenstein]

This is an article that's been a really long time in the making; Professor Rosen contacted me back in early July about being interviewed for the piece.

The interview never actually happened; I was in Hong Kong at the time, and besides, being a non-anonymous blogger, I'm not sure that my particular point of view would have really fit with his angle.

As for privacy, there are some concerns, but I will cry no crocodile tears for Washingtonienne's paramours; the simplest way to avoid having your extramartial affair with a 20-something Hill intern from being splashed all over the internet is to not have the affair in the first place.

[Mike]

Is this policy too stringent?

No. I like it and follow a similar one. My guiding rule is to error on the side of non-diclosure. There is enough material to blog about without having to identify people or to hurt feelings.

I even apply my privacy policy when people write me personal threats (happened thrice while I was discussing a certain topic).

However, if anyone threatened to sue me for something blog related, then I'd post the offender's name, etc.

[Jim]

I haven't read Rosen's article, but your post illustrates Old Media's resentment and fear of new ways of sharing news and opinion. Do you remember how newspapers dissed TV, how broadcast TV dissed cable, how all TV dissed the internet (and you could see the irritation on the faces of the anchors when they had to read the Starr Report off of the internet, where it was released first, I believe). And now they diss blawgs. And people accuse lawyers of being reluctant to accept change.

[Traverse City Lawyer]

It sounds like Mr. Rosen prefers a more 'politically correct' world. He would prefer that certain things not be discussed and revealed. Blogs are certainly a threat to his world, and to the ‘establishment’ which has had such a tight grip on ‘how things work’ for so very long.

I have bad news for him. The internet, and blogging, prefer openness, disclosure and opinions over polite superficial conversation and rhetoric.

He notes:
"As personal blogging proliferates, an etiquette is beginning to emerge. In a forthcoming study of nearly 500 bloggers and their expectations of privacy by Fernanda Viegas of M.I.T., more than a third of the respondents said they had ''gotten in trouble'' for material posted on their blog, and a third knew other bloggers who had gotten into trouble with family and friends. Those who wrote frequently about ''highly personal materials'' got into trouble most often of all."

Such is the consequence of open discussion. But is this really bad?

The truth sometimes hurts. But to reveal our own personal 'truths' and publish them on the internet is both liberating personally and necessary for our society if we are to continue to evolve as a society. We still live in a world where norms and habits drive human potential, as opposed to intellect and innovation. We still prefer the niceties of keeping it 'in the closet' as opposed to throwing it down on the table and forcing discourse.

At the risk of appearing extreme by way of example, communist Russia was a world were people were not allowed to speak freely about much of anything. I'm certain that the society which was spawned from the lack of first amendment rights was very 'private' indeed. But without the engine of discussion and debate, human potential is also quashed. We have yet to realize how important the first amendment is to our society and way of life.

It's not about privacy. It’s about our society's desire to merely 'pretend' as opposed to 'deal with it.' How many times a day do we say something we really don't mean, or pretend to be ok with something that is grating us? Are we really better off for doing so?

We have to grasp that our right to speech and opinion is the motor which will drive our society forward and allow us to compete in the information age.

By the way, Matt Homann as the people’s candidate is a perfect example of how blogging can upset the establishment. I hope he wins.