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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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May 17, 2005

The Populism of Blawgs

Posted by Ernest Miller

Lincoln Caplan, editor and president of Legal Affairs, has an editorial on blawgs in the May/Jun 05 issue of that young, yet illustrious publication (Blawgs). Caplan is an acquaintance of mine and, in fact, I may have actually introduced the whole blog concept to him back in 2001 or 2002 when I and the Information Society Project at Yale Law School launched the pioneering law school blog LawMeme. Or, perhaps, it was when I invited him to speak at the first academic blog conference, Revenge of the Blog (he wasn't available unfortunately).

Whatever my limited role in introducing Caplan to blawgs was, he's certainly shown, through Legal Affairs, that he is sympathetic to them. However, I just don't buy his assertion that blawgs are generally not populist, "Yet while blawgs are blogs, they rarely have the populist touch that is supposed to make blogs blogs." Huh?

Read on ...

First, the three popular blawgs he mentions, The Volokh Conspiracy, Underneath Their Robes, and Legal Affairs' own How Appealing, are incredibly populist. Not only are they wildly popular throughout the blogosphere, they generally are written in a fairly light-hearted fashion, sometimes making complex legal arguments, but usually attempting to do so in a way that the educated but non-law layman can understand. It seems odd to illustrate an assertion that blawgs aren't populist with three particularly populist blawgs.

Second, Caplan seems to mistake the blogger/journalist debate as a desire for credentials, to move away from the populism that makes blogs exciting.

Media critics hail them as a populist advance, a form of grassroots journalism. Since anyone with a computer can blog, the form allows bloggers to reach an audience without having to please gatekeepers in the mainstream media. Bloggers can speak directly to the people, the argument goes, the uncredentialed competing with the credentialed. "We fact-check your ass," as the early blogger Ken Layne put it, and bloggers have helped take down top journalists like former CBS News anchor Dan Rather.

But that doesn't mean the sans-culottes want to be treated differently than the aristocrats when it comes to privileges. In a California lawsuit about whether the state's shield law for journalists protects the confidentiality of bloggers' sources, a trial judge ruled that no protection existed for three so-called rumor sites that blogged about unreleased Apple products. But the debate is just beginning. To answer the meta-question—are bloggers journalists?—some contend that bloggers are if they say so, or if they seem to do what journalists do. Never mind the irony of bloggers' insisting on being classified as journalists at a moment when that's not necessarily a mark of distinction, with courts saying reporters can be thrown in jail when they invoke the sort of privilege bloggers were denied in California.

Actually, I don't see most of the debate as bloggers seeking to join the journalistic aristocracy, but rather pointing out that journalists ain't all that special. I don't think that bloggers should be especially privileged when it comes to the First Amendment, I think that everyone and anyone who publishes should be privileged (A Proper Press Shield Test: Publication or Intent to Publish, Period). Knocking the aristocracy off their high chairs is also populism.

Third, just because the material is rarefied doesn't mean it isn't populist.

While much of their content is gossip, a lot is commentary geared toward legal experts and virtually impenetrable for anyone else. Rather than being a populist advance, blawgs are often outlets for rarefied material.
Too often the legal profession has been a mysterious priesthood (thanks, ABA!). Blawgs, whether their posts are rarefied or not, are public and open in a way that the legal profession has never been. Blawgs link to the cases they cite (read it yourself - no law library access necessary), they're short and to the point, seldom delving into footnote hell. Even the posts that are aimed at other legal experts are open; anyone can come by and read, and when the point is germane to them, they do. Moreover, these posts don't condescend. I think that is pretty darn populist. Plus, in my experience, most blawggers aim for the educated layman audience for the most part.

Fourth, I don't buy that abandoning mass media is not populist.

A generation ago, the goal of influential forms of journalism was to make the news broadly accessible and give us a common basis for making social choices. Journalism about the law shared those aims. Since the trial of O. J. Simpson a decade ago, however, journalism in general and especially about law has been defined by narrowcasting. The popular media are full of legal coverage, but much is of a limited kind—about celebrity justice or the controversy du jour—with each type of journalism aimed at a different audience.
There is a limited amount of attention out there. If you aim for only the broadest audience, ultimately, you're going to be stuck talking at a relatively shallow level about Supreme Court and appellate court decisions. Why do we need more of that? Blawgs will link to legal correspondents of the major media (and then go on to point out what they missed or got wrong.), but then they'll go on and take a look at cases that don't make the news but still affect people or will have repercussions down the road. Is it more populist to serve a one-size-fits-all version of the important legal cases, or a wild mish-mash of things experienced people find interesting or important? The top-down view of journalism doesn't seem particularly populist to me contrasted with the bottom up version.

Fifth, what the heck is Legal Affairs? Is it not an attempt to be a mixture of populist journalism and legal scholarship? Why does it sponsor How Appealing? Frankly, I've always sort of thought it was about as blawg-like as periodicals are likely to get. From the Editor:

Law and lawyers matter deeply in the United States and around the world. Yet literate and probing writing about the law is found too rarely in even the best general newspapers and magazines. Legal Affairs presents this kind of writing regularly, with the goal of stirring a challenging, vibrant conversation about the law....

Legal Affairs includes witty commentary, illuminating narrative, and shrewd analysis—all designed to enlighten and entertain. Our regular coverage embraces law, politics, history, culture, and more.

Many blawgs are basically aiming to do the same. I think a lot of them are succeeding.

via The Volokh Conspiracy

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


COMMENTS

1. Ed on May 18, 2005 07:21 AM writes...

Great observations, everybody with access to a "printing press" ought to enjoy 1st ammendment rights if it is going to mean anything.

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2. Mario G. Nitrini 111 on May 23, 2005 09:32 AM writes...

Mr. Ernest Miller,

My name is Mario G. Nitrini 111. I was Personally Involved in The OJ Simpson Case. I had an Article written about Me in the L.A. Times on June 23rd, 1995, by Bill Boyarsky about some of My Involvement in the case. I was also on David Bresnahan's National Radio Show in March of 2001 talking about Some of My Involvement in the Case.

The Mainstream Media doesn't like me at ALL for Reasons, and that's putting it VERY MILDLY. And Point Blank, not too many people like Me in this case for "Reasons.". I belong to a Discussion Group, "Smartfellows Press" (IAGO). We have uncovered Knew Facts, Information, and Evidence concerning the Case and More.

Your Article Written here about Blogging is EXCELLENT, and HITS GREAT POINTS. I am one of the most covered-up Participants in The OJ Simpson Case. NOT ANYMORE. With People reading about some of what happened to me in the Case because of Blogging and the Internet, "Things have Changed." In this Case (The OJ Simpson Case) and More, NO ONE can ILLEGALLY HURT Me ANYMORE. I have the BEST SECURITY that $$$Money CAN'T buy.

Again, Great Article Mr. Miller,

Sincerely,

Mario G. Nitrini 111

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