OR PHONE (866) 635-1838 for Bankruptcy Help, (866) 635-6190 for Divorce,
(866) 635-2689 for Personal Injury or (866) 635-9402 for Criminal Defense

Find a Local Lawyer

Close This Box!

One thing I want to say up-front is that, of course, none of my reactions to the symposium were personality-driven.  Nor do I have any interest in telling other blogs what they should do.  I simply found the whole complex of issues very interesting, and saw no reason why I shouldn't write about it, even critically.  At times, legal bloggers will suggest, gently or otherwise, in "confidential" back channel communications that one ought not criticize one's fellow law-bloggers in public.  The reasons for this range from professional courtesy, to politeness, to the occasional veiled threat of professional consequences.  These arguments strike me as unpersuasive, and in some cases counter-productive; I assume that any half-way virtuous scholar, if she is told not to write about something, will put that topic at the top of her agenda.  I am not saying any of this applies here.  I am saying that I thought it was worth writing about the symposium, and its relationship to the comment policies being practiced there, and saw no reason why I couldn't validly do so.  That my post, and Orin's, elicited such interesting comments rather confirms for me that it was an entirely legitimate thing to write about.  Bloggers, like all writers, should write sensitively and fairly, but they shouldn't consider other blogs off-limits.

That said, here are some thoughts.  First, Frank Pasquale asks in the comments to my post whether, given my writing on institutional autonomy and the First Amendment, I agree that "the freedom to exclude/not have comments . . . trump[s] the right of others to participate/comment."  I do.  I don't think there is a "right" to participate in or comment on others' blogs.  In keeping with my views on institutional diversity, moreover, I think there is room for a variety of comment policies, from excluding all comments to including all to the current CoOp position, which allows comments generally but warns against trolls, invective, etc.  At the same time, I've said two other things that are relevant here.  First, I think that although the courts may not be able to undermine institutional autonomy, those institutions are still subject to informal moral and/or professional suasion, from within and without the institution.  Churches, for instance, might be entitled to immunity from certain kinds of employment suits, but that does not mean that the church's members, and the public, can't criticize them for their conduct in those cases.  In that sense, although blogs are free to shape their own comment policies, those policies are also legitimate subjects of discussion and critique, both internal and external.  Second, as I discuss in this paper, it is productive to think about the ways in which blogs, as an institution, function, and in particular the ways in which their evolving, emerging norms may differ from methods of self-regulation for other media, such as newspapers.  We don't generally have the same filtering layers -- reporters, editors, etc. -- as newspapers; what we do have is a fairly well-established norm of error-correction and dialogue through comments and linking.  That norm is, as I say, evolving, and still controverted.  But I think it is by and large a useful one, and part of the point of my post was to observe that, in my opinion at least, the CoOp symposium posts that followed this norm were stronger, more responsive, and less driven by argument by fiat than the ones that didn't.  Others may, of course, disagree.  And I should emphasize that such a view is entirely consistent with the comments policy Dan Solove posted yesterday, depending perhaps on how it is administered.