Patterico can hope all he wants, but the sobering words he quotes will likely be proven correct in the coming years as blogging influence grows. The amount of litigation aimed at blogging will be in direct proportion to its overall impact in society.
It won't just be libel suits (though that will certainly be a strong weapon in the anti-blogging arsenal), it will also be the recent convergence of copyright, trademark, "publicity" rights, and trade secret claims that have converged in recent years to make free speech an ephemeral notion.
Even the technology of linking that blogs thrive on will be assaulted by the legal establishment - as it has assaulted everything in the past that challenges the supremacy of the status quo.
I also regret to say that
some of Patterico's commenters to his post are being a bit naive. Civil suits are powerful weapons against people with little resources. Lawsuits regarding libel, intellectual property and related claims are not about being financially compensated (well, not usually anyway) - they are about shutting down another's speech. It is a censorship tool to bully the competition with. Many (even most) bloggers will back down in the face of a lawsuit they likely know to be frivolous since they don't have neither the time or resources to fight in the first place.
Even if actual opinions aren't stifled, these laws will clearly retard any maturation of the blogosphere - slowing the growth (or even preventing) the development of video blogging or technology that allows easy multi-media attachments to blog posts. Such improvements would greatly enhance the blogoshpere and public debate (Can you imagine linking to the actual Dan Rather "memogate" broadcasts to be able to dissect them without having to rely on CBS to provide the video for you?). But it will not be possible in the face of an avalanche of copyright, trademark, and publicity rights lawsuits.
While its true that California has an anti-SLAPP law that helps protect its citizens, and that law has been applied in federal diversity cases, it is still unclear just how far the protections will be applied in the jurisdictional realm of cyberspace.
But regardless of how broad the anti-SLAPP protections might be, Raphil's faith in such protections comes from his perspective as a lawyer. SLAPP motions often grant attorneys lawyer fees from the other side, so they play up the fact that disputes can be won with such motions. But its not the ultimate outcomes of these lawsuits that worry most bloggers - it is the fact that they will be dragged into the legal process to begin with. Most lawyers do not appreciate the daily stress that most people go through simply in having to answer a complaint. Most bloggers won't want to deal with the potential years of appeals that it might take merely to be compensated for the time wasted being deposed and showing up in court.
That is why coportations or entities with vast resources aren't fearful of filing claims that might ultimately be dismissed by anti-SLAPP motions. They can afford it - and the risk investment is quite paltry compared to the chances of getting a defendent to back down before he even considers filing such a motion. Again, it isn't the ultimate outcomes of potential cases that will work against bloggers - it is the legal process itself.
There will no doubt be a few success stories here and there of "the little guy standing up for his free speech rights in the face of pressure" from legal Goliaths. But what will go unreported is how many others will silently take down blog posts, or hesitate in hitting that "publish" button out of growing fear of the legal community.
That coming legal superstorm against blogging is inevitable. And because bloggers rightly fear it, free speech will be chilled in the blogosphere as it has already in so many other realms due to the legal shock-troops of our age.
Addendum: After posting this, I realized I forgot to include what is sure to be one of the biggest weapons in the legal arsenal of the superstorm - the all encompasing catch-all "right of privacy". Let's say you blog about an interesting conversation that you had with someone who assumed that the contents of which would be private...Do you see where I am going with this??
Some desperate/creative laywers are sure to argue that the posting of a transcript of a private conversation on to a public blog is the functional equivalent of tape recording a conversation.
Surely even now I am leaving out many tools that this coming assault will use ("unfair business practices" anyone?).
As all successful lawyers know - you don't look to the law to determine orderly and uniform results. Instead, you determine the desired results first, then creatively pick whatever broad flexible laws are needed as a tool to acheive such results in the specific instances where you desire them.
You split hairs about the facts. You distinguish cases. And viola! What was though of to be free speech in one sector of the world suddenly becomes "an outrageous intrusion into one's personal privacy" in the bloggging world....
Posted by Justin Levine at January 27, 2005 02:56 PM | TrackBack