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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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November 07, 2003

Who is John Simpson? Journalism, Lawyers and Blogging

Posted by Ernest Miller

There has been an interesting discussion on the bIPlog regarding Mary Hodder's posting of news regarding the status of the Online Policy Group v. Diebold, Inc. case. The original post is here: Diebold Case Gets Accelerated by Judge. The comments are here: Comments: Diebold Case Gets Accelerated by Judge.

The interesting discussion starts with a "John Simpson" pointing out that while the case was accelerated, the request for a temporary restraining order was denied:

You, like everyone else in the "blogosphere" that I've seen, fails to note that the judge DENIED THE TRO!!!! That's the story, certainly more than the fact that the case was "accelerated."

A valid and worthwhile point. Probably all would have been fine if John had stopped there. Unfortunately, John begins to go off the track when he continues:

So much for Berkeley's journalism school.

First, let me note that Hodder's post was factually correct. However, it was rather short and didn't note what some would consider the more important aspect of the ruling (though you likely would have to be a lawyer to know this). Still, a blog doesn't get a news posting the way John prefers and suddenly an entire institution is called into question? Get a grip, John.

The problem seems to be that John, in a common error, expects too much from blog postings:

With all your [Hodder's] talk about "creating discussion" and "evolving the discussion" and "foster[ing] the iteration of what we know about something," you seem to have forgotten the basic rules of journalism, i.e., don't publish before you know the relevant facts.

If blogs always waited to post until they had all the relevant facts, there would be many fewer blogs. There would be much less journalism in general. This is not to denigrate the gathering of all relevant facts, but simply to note that publishing on a timely basis sometimes prevents one from gathering every relevant fact.

In any case, unlike much traditional journalism, blogs provide something better than waiting for all the relevant facts ... they provide links that let readers do their own research and investigation to verify what the blog is saying. Let's remember that Hodder's post was factual and provided a link to EFF's document archive, where (as soon as it was posted) one could read the order itself (Order to Show Cause Re Preliminary Injunction and Denying Temporary Restraining Order [PDF]). Hodder may not have seen all the relevance of the accelerated schedule re the TRO, but she pointed interested parties to the sources where one could get more information.

So, in fact, John's argument is not particularly on point. Hodder had the facts right. What she didn't have was the subjective interpretation of the facts. If you are going to condemn journalists for getting subjective interpretation of facts wrong, then instead of saying "So much for Berkeley's journalism school" you should say "So much for journalism itself."

Of course, blogs have advantages when it comes to interpretation error. You get the meaning of the facts wrong (or even the facts themselves), you can update a blog and respond much quicker, just as this discussion has developed over the past 24 hours. A letter to the editor for a newspaper story would still be in the post office while this conversation has already developed quite substantially. As Hodder notes, blogs are iterative; they're not the "first draft of history," they are the "rough scribbled notes of history." Blogs are quick to err and quick to correct. Anyone who reads my blog postings knows that I often provide caveats based on a "quick reading" or "as the facts are currently known." If you are reading blogs for the definitive story, you've got the wrong medium.

The fact that you blame your ignorance on the EFF's web site is really telling (and so is the fact that your headline nearly mirrors theirs); they are a zealous, biased interest group whose statements should be subject to a high degree of skepticism, as should the statements of all such partisan groups. Or do such rules of fairness and accuracy not apply in the "blogosphere"?

John makes a big point about EFF being a "zealous, biased interest group." Interestingly, we know nothing about John's biases. We know he claims to be a lawyer, but that is all. For all we know, John represents Diebold. Who is John Simpson and what are his biases?

Moreover, Hodder wasn't hiding where she got her information from. It is sad that Diebold is not hosting a similar resource to EFF's or releasing alternative press releases, but I'm sure if they did Hodder would have linked to them as well.

In any case, bIPlog doesn't claim to be "objective." The mission of bIPlog is "to advance the debate over intellectual property by aggregating noteworthy, factual information with thought-provoking commentary." I know that bIPlog tries to be fair and accurate, but that doesn't mean unbiased. Of course, being opinionated means that sometimes you are wrong. It isn't the end of the world when that happens.

You are at a journalism school! Practice some journalism! Call the lawyers -- on BOTH sides. Call the court -- try to get a copy of the order. Ever heard of "shoe leather"? "Pounding the pavement"? Or is that considered old-fashioned in the blessed "blogosphere"? If this is what they teach at journalism schools these days, Lord help us all.

John's complaint is that a blog at a journalism school doesn't practice traditional journalism. It is a blog, John, not a newspaper. The rules haven't yet been set in concrete, but they probably don't include treating posts the same way one would treat an article in the newspaper. Blogs are quick and dirty, with lots of links. This doesn't mean that you won't sometimes practice traditional journalism (I've been known to make a few phone calls myself and go to courthouses), but most people I know expect blogs to rely more on secondary sources then primary ones.

This doesn't justify "inaccuracy, unfairness, or, frankly, laziness," but one has different expectations for a blog than one has for a newspaper, just as one has different expectations for a law journal article as opposed to a legal newspaper.

Anyway, John's problem with Hodder's post wasn't that she had the facts wrong, but that she didn't interpret them in a way that John thought proper. Memo to John: Non-lawyer journalists frequently misinterpret legal holdings (that is why they are journalists, not lawyers). It isn't a good thing, but it is hardly cause to cry "Lord help us all." The polite way of responding to journalists who lawyers believe have misinterpreted a legal holding is to simply point out a better interpretation - without essentially calling the blogger an embarrassment to journalism or denigrate the "blogosphere."

As far as the substantive aspects of John's arguments, I agree that EFF is stretching their legal arguments (EFF, Stanford Support Diebold Countersuit). However, I also have to disagree with John's prediction:

I am fairly confident that the judge will NOT issue the order requested by the EFF, i.e., one forbidding Diebold from issuing C&D letters. I predict that the judge will find that such an order would be clearly barred by the First Amendment.

I predict that the judge will NOT have to reach constitutional issues to deny EFF their requested relief. I predict that the judge will be able to deny the order on grounds other than the First Amendment.

Comments (2) + TrackBacks (0) | Category: Blogging and Journalism | E-Voting


COMMENTS

1. JD Lasica on November 7, 2003 01:41 AM writes...

John, your argumentative tactics may play well in the courtroom, but not in the blogosphere you so cavalierly deride.

Here's who I am: a veteran journalist who has worked on a major metropolitan daily and written for major magazines. I'm also senior editor of the Online Journalism Review.

My own view mirrors that of Ernest: If you're looking for a complete, balanced and objective account of a story, pick up a newspaper or magazine. You may not like it -- and you're free to stomp off in a holier-than-thou snit -- but writing for a blog is different. Who's to say that every posting on a weblog hosted by UC Berkeley needs to conform to a traditional standard of journalism born in the print era? I certainly don't go to bIPlog with that set of expectations in mind. I don't even go there looking for journalism.

I visit bIPlog looking for opinion, for thoughtful analysis, for commentary, not for a dry, evenhanded recitation of events. Usually, my expectations are more than met. (Neither do I find a hidden agenda or partisan invective, which afflicts less noteworthy blogs.) But I don't stop there. I sample from a broad range of media: other blogs, news accounts, even corporate position papers. I often find that reading two or three blog accounts is more enlightening than reading a balanced, objective account you seem to demand of all online journalism.

You don't like how bIPlog came down on this? Fine, post a comment, or fire up your own blog software. But don't attack the integrity of a blogger just because you don't agree with her conclusions.

By the way, my opinion? bIPlog didn't come down on Diebold hard enough.

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2. mary hodder on November 7, 2003 07:45 AM writes...

Like I said in my comments on this post here: http://journalism.berkeley.edu/projects/biplog/archive/001427.html, my opinion is that the acceleration of the case was more important than the denial of the TRO. But I'm not a lawyer, don't pretend to be, and write for the biplog more as someone interested in the social implications of intellectual property issues (which of course involves some law and technology analysis). So my perspective is not that of someone who practices law, but who sees it from the outside. I rely on lawyers and people who study law closely for deeper legal interpretation. So it may be that the denial of the TRO is the most important thing, but the wording in the order is: "In light of the accelerated briefing schedule set forth herein, Plaintiffs request for a temporary restraining order is DENIED." So I take this at face value: that because of the accelerated schedule, the TRO is denied.

More importantly, John Simpson seems to be hiding out, unwilling to say who he is or what his expertise is, other than eventually admitting that he is a lawyer, and yet assuming he knows who we are (he assumptions as stated are somewhat incorrect -- I'm in the School of Information Systems, info that is in the bIPlog bios), criticizing the blog, the JSchool and me, while being unwilling to share equal information about himself. I do not wish to personally attack him as he has done with me, but I do find that part odd, sort of bullying in an anonymous way. The internet generally, and comment forms on the blogs we use (comments are left by typing in any name freely, so maybe Simpson isn't even really Simpson), allow people to be somewhat anonymous (though IP addresses do reveal something, like the law firm Simpson was working from yesterday), which is important because sometimes there is information that needs to be imparted without attribution, because it is sensitive or troubling or might never be revealed if it had to be linked to a person. But in this case, Simpson just attacked without revealing himself, in a pretty obnoxious manner and the information he was imparting doesn't seem to have those qualities requiring anonymous transmission. It's fine if he wants to be anonymous, but combined with the attacking nature of his words, it does make it harder for me and other readers to evaluate and take them seriously. It would have been much more constructive if he'd just said to begin with that he was a lawyer, and then suggested his interpretation as the better one, and explained why.

In his last comment, he says all he wants is a blog at the journalism school to be accurate and fair, but his comments, the parts that are bullying, are really unfair, damning the JSchool and blogs for having opinions and passing along what is factual information, because it is not up to his standards of journalism. It's also fine if that is his opinion, but he seems to misunderstand what blogs are about. Blogs aren't pure journalism.

The bIPlog is a blog, not impartial reporting. I try to be fair and accurate with the facts and information, but it is also a place for opinion and commentary. It is something I've used to comment, sometimes harshly, sometimes not, on information I often find on the Internet, though sometimes directly investigate if it seems warranted or the information can't be found elsewhere. Choosing which news to cover is an opinion based process, and choosing what to discuss in a more in depth is also. Bloggers and traditional media outlets make choices and there is no getting around the biases we have in making these choices. But as I said, the bIPlog tries to be fair and accurate, and update when wrong, but I am not a news service, and therefore can't cover everything, nor can I cover it to the depths every reader might like. I don't have the time, nor do I have the expertise to know fully the law, technology, sociology, business, journalism or media. This is an interdisciplinary topic blog, and as such, tries to get the information correctly, and then comment on it. I can't be an expert in everything. But I can focus to try to find the social implications at the intersection of these topics.

Like JD, I get information and opinion from many sources: traditional media, blogs, direct sources. I write on the blog about things I want to point out or find interesting. It isn't a last stop, but one of many stops for people who think it might be interesting.

I think John Simpson should write a blog and get into the conversation in a more constructive way. Then others can comment, and he can explain why he believes the denying of a TRO because the case is being accelerated anyway is more important than just reporting that the case has been accelerated. And he might learn from interacting with other bloggers what the medium is for and about, and how it's different than pure journalism. Blogs are a very useful source of information, but need to be taken as a different kind of information than straight up news reporting.

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