lukegilman.com : The Blawgraphy

Life of a Law Student, University of Houston Law Center

The legal profession has more than its share of land mines for would-be bloggers. Houston Criminal Lawyer and Fearless Blogger Mark Bennett points out one of the many differences between himself and prosecutors – he can speak his mind with relative impunity; prosecutors are officers and representatives of the State. Even when they speak for themselves they implicate our collective coercive power over the person. So when someone pulls the veil back on the sausage factory, it’s well, unseemly. Consider a excerpt from “the Sassy Court”:

Today, [Chief Man] was laughing at me because I was livid that he wanted to give my pervert a deferred. I told him I didn’t care what he did as long as it counted toward the guy registering as a sex offender.

At one point he was sitting with his head on the desk. Then he tried to explain to me that they give deferreds to sex offenders all the time in felony. I don’t care what they do in felony!!! I want my guy to have to register as a sex offender!

It was not quite a surprise to find that the blog had gone dark today. In any other context – covering politics, business – those kinds of comments would be perfectly acceptable and purely entertaining. One of the issues of working for the government is that it’s not always easy to tell where ones own dominion ends and where the government’s begins. For a public employee I’m not sure a public, even presumptively anonymous blog, of the kind those of us in private practice take for granted, can ever be appropriate. There are consequences to blogging. Not all of them are good.

I posted a few days ago on Blogging While Publicly Employed. The most public of employees are the men and women in our armed forces. With the growing trend of military blogs going strong now for several years, the question raised is how any large organization handles the self-expression of its members. Lo and behold, a little googling turns up what purports to be the Air Force’s Rules of Engagement for Blogging. It’s not entirely clear how official this is, but the flow chart appears to be a reasonable and workable monitoring and response decision matrix that could be implemented by any large organization.

• Air Force’s Rules of Engagement for Blogging

Via Legal Theory Blog, Paul M. Secunda, Blogging While (Publicly) Employed: Some First Amendment Implications

While private-sector employees do not have First Amendment free speech protection for their blogging activities relating to the workplace, public employees may enjoy some measure of protection depending on the nature of their blogging activity. The essential difference between these types of employment stems from the presence of state action in the public employment context. Although a government employee does not have the same protection from governmental speech infringement as citizens do under the First Amendment, a long line of cases under Pickering v. Bd. of Education have established a modicum of protection, especially when the public employee blogging is off-duty and the blog post does not concern work-related matters.

Describing the legal protection for such public employee bloggers is an important project as many employers recently have ratcheted up their efforts to limit or ban employee blogging activities while blogging by employees simultaneously continues to expand. It should therefore not be surprising that the act of being fired for blogging about one’s employer has even led to a term being coined: “dooced.” So the specific question that this essay addresses is: do dooced employees have any First Amendment protection in the workplace? But the larger issue examined by implication, and the one addressed by this Symposium, is the continuing impact of technology on First Amendment free speech rights at the beginning of the 21st Century.

This contribution to the Symposium proceeds in three parts. It first examines the predicament of private-sector employees who choose to blog about their workplaces. The second section then lays out the potential First Amendment free speech implications for public employees who engage in the same types of activities. Finally, the third section briefly considers a potential future trend in this context from Kentucky involving government employers banning employee access to all blogs while at work.

As a blogger who is publicly employed, this is rising to the top of the reading pile.

Although I abhor New Year’s Resolutions in general, my one exception this year is to weed the ‘draft garden’ of my blogs. WordPress, like most other systems, allows you to save posts as drafts, ostensibly until you come back to publish them. The problem is that I so seldom get around to that last part.

Over the winter break I took a stroll through the debris of my former intentions – links and fragments of ideas, phrases that never found a post-worthy home and more horrifically, even fully-formed posts that I had slaved over but had never gotten around to hitting publish, now stale and stillborn.

So this weekend I have been going through with a metaphorical scythe cutting down old drafts like so much chaff, plucking out a few that could be published right away or else condemning them to the void.

Kevin O’Keefe at LexBlog brought up an excellent conversation on Moderating law blog comments : The New York Times protocol. Comments are just a part of life in the blogosphere and even a local cable access blog like this one gets its fair share. The comments range from the silent majority, to the regulars, an occasional troll and a legion of spammers. Those new to blogging are sometimes shocked at what passes for civilized discussion. The advice your mother used to give you – that if you had nothing nice to say, not to say anything at all – has no adherents on the web. If anything the opposite is the default rule – if you only have something nice to say, why bother?

Netiquette of Comment Moderation

Basic netiquette renders even a personal blog like this one something of a communal area; there’s a tacit agreement among readers and writers of blogs of transparency and intellectual honesty that most bloggers feel requires them to allow space for other points of view, no matter how misguided. Essentially, by providing a mechanism for comments at all, I’m inviting this kind of community participation – and if I censor it, I make myself the worst kind of netizen; if people are going to take the time to write something, the implied agreement is that I won’t kill it. As a result, I’ll pretty much approve anything that comes from a real person, even if that person is seriously deranged.

The Blawgraphy’s Rules of Comment Moderation

Generally I will not approve:

1. Anything in another language – mostly because I’m a dumb American and can’t read it.
2. Content that is nasty, impolite or slanderous of another person – I’ve pretty much made myself fair game to a certain extent, but others have not and I feel no obligation to assist in that kind of conduct.
3. Commercial language or incentive of any kind – if I don’t take money from advertisers why would I give it to you for free? I reserve the right to kill your comment or just strip out your offending commercial speech and leave the rest – the most offensive version of this to me is something like “Hey! Great Site!” from “Personal Injury Lawyer” with a link to hiremeasyourpersonalinjurylawyer dot com.
4. Something that seems like it was meant for yours truly alone; some people don’t make the connection that this is a public forum and post very personal information or put their e-mail address in the body of the comment message. I will protect these people from themselves by responding through another channel or stripping out info that could be used by spammers, etc.

Other blogs, generally by virtue of their status or sheer volume in comment traffic do more editorializing in their comments. Marci Alboher’s post Some Comments About Reader Comments, which builds on the wider policy statement in the NYT Frequently Asked Questions About Comments focuses on providing “substantive commentary” in the comments – essentially treating comments as mini-article submissions for which they are the editors. In contrast, the Houston Chronicle seems to have no such policy, at least not that I could find; as a result try not to read too many comments there, lest I lose total faith in humanity.

Darren Rowse discusses the NYT policy in Comment Moderation – How Do You Do It?. Typical of the blogosphere, it’s the comments that have the most interesting information on different takes. See his full comment policy here. Law blogs with huge comment followings such as David Lat’s Above the Law and the Volokh Conspiracy are more likely to have to actively manage comments in order to salvage the conversation. Unsurprisingly, the Volokh Conspiracy has the best comment policy I’ve seen so far – click here and scroll to the bottom of the screen. More surprisingly, the closest thing Above the Law comes to a comment policy is the rather lawyerly terms of service with nothing around the comment form itself. Given that Above the Law gets my ‘law blog most likely to result in a lawsuit award’ due to the nature of the content it deals with (often embarrassing situations) and the general emotional maturity level of the commenters (8th grade gym class).

Dealing with Trolls

Most law student bloggers are aware of the Autoadmit fiasco (if not read here, here, here, here) where the fallout from comments (NB: forum not blog) have derailed the lives and careers of all involved – admins, commenters and the victims of the posts. Although there is generally no 3rd-party liability for web hosts, any blogger should be aware of troll culture (see The Trolls Among Us) and be wary of allowing unmoderated comments.

Behold the Power of Comments

I would hate to scare anyone off through this discussion of what can go wrong in comments; on the whole, getting comments is one of the most enjoyable parts of blogging. I continue to be amazed at the connective power of the blogosphere and the contributions that come in to open up the discussion in ways you hadn’t anticipated.