May 08, 2007
"New Media" Panel Yesterday at 7th Circuit Bench-Bar Conference
Posted by Christine Hurt

If the two panels that I attended yesterday were any reflection of the rest of the conference, the 2-day 7th Circuit Bench-Bar Conference was a step above the normal large CLE-driven bar conference.  The first panel was "Traditional Media's Coverage of the Supreme Court," which began with an opening address by Joan Biskupic, Supreme Court reporter for USA Today and Sandra Day O'Connor biographer.  The panel comprised David Savage (LA Times); Jonathan Turley (GW Law School) and Joe Kearney (Dean, Marquette Law School).  This panel was moderated by MIke Gousha, former Milwaukee anchorman and current Distinguished Fellow in Law and Public Policy at Marquette Law School).

Joan Biskupic's address was very enlightening for those of us who know very little about modern-day journalism in general and Supreme Court bureaus in particular.  She drew two distinctions between reporters and bloggers in coverage of the Supreme Court.  The first is that her obligation is first to the facts.  Her article must cover the factual bases and then provide analysis and commentary and time and space allow.  Second, reporters have the advantage of "being there."  The full-time Supreme Court reporters (of which there are fewer and fewer as even large newspapers such as the Chicago Tribune and the Houston Chronicle feel the pinch of budget cuts) are there on the ground, in the building, year-round.  Those few holding "hard passes" have the advantage of being able to talk to litigants, watch oral arguments, note who is in the gallery and who is not, etc.  She did not disparage blogs or bloggers, and of course we were all mindful that among legal reporters, full-time legal correspondents such as Joan, who graduated from Georgetown Law Center, and David Savage are in a class by themselves.

The second panel was "The 'New' Media:  Bloggers and the Courts," and the panelists were Eugene Volokh, Rick Garnett, Jason Czarnezki, Howard Bashman, and Ann Althouse.  Our moderator was Judge Diane Sykes.  Judge Sykes asked the panel as a whole several questions, with each panelist speaking in turn.  Our questions were "Is the unfiltered and unmediated nature of law blogging a strength or a weakness?"  "What impact does law blogging have on the judiciary and are there any ethical considerations that are triggered by judges reading blogs?" and "What Impact does law blogging have on traditional legal scholarship?"

I think as a whole, the panel's reaction to the first question, on the unfiltered and unmediated nature of law blogging, was compared to what?  Eugene and Ann pointed out that op-eds are not filtered or even fact-checked, and that blog posts are similar to op-eds.  I also noted that the question assumes that in some medium analysis and commentary are filtered and mediated, but I did not believe that to be the case.  As Joan had noted in her opening talk, reporters have a primary obligation to the facts.  I don't.  I add little value reciting facts that I did not originate.  I link to sources for facts and I may aggregated them, but I don't originate them.  So, I don't need a fact-checker.  What may need to be vetted are my opinions and arguments for logic or legal basis, but reporters don't do that in articles, either.  If a reporter calls me for a quote on the future of some legal issues, they don't then vet that in any way before it runs in print.  I also pointed out that law professors are quite used to vetting themselves because law school courses are extremely unfiltered and unmediated.  I could lie to students for 14 weeks if I wanted to.  But to protect my reputation, I vet myself before I teach to make sure that I'm on firm factual and legal ground.  I also pointed out that the filtering and mediation of blogging takes place in the comments, which Ann noted does not happen once an op-ed, written in stone, is published.

The second question about impact on the judiciary was interesting, and many spoke of the advocacy function of some rare blog posts when cases are pending.  Howard Bashman spoke of the "amicus brief" nature of blogging.  However, one questioner in the audience questioned the ethical propriety of trying to influence a judge on a pending case.  Again, the panel did not believe that this phenomenon was any more troubling that op-eds about pending cases or law review articles arguing what the law ought to be in general in a specific area.  However, from overhearing the audience participants after the panel, I understood that the questioner's concern was widespread.

I formed a hypothesis that at least some practitioners (the ones that I overheard) were concerned that blogs created a one-way advantage in the way that ex parte conversations do.  If one litigant can get the attention of the blogs, then is the other litigant at a disadvantage?  One woman near me said to her colleague "The thing about blogs is that if they say something about me, I can't respond."  I wanted to assure her that most blogs have "comment" functions, but I didn't want to fuel her paranoia.  What is it about blogs that non-bloggers find so dangerous (and "unduly influential")?

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Comments (4)

1. Posted by Eric Goldman on May 8, 2007 @ 9:06 | Permalink

The implicit tension in your post about who "owns" the facts--reporters doing primary research or bloggers relying on that research--is a little bizarre. Bloggers can and do originate facts--you may think you don't (though I suspect you do), but plenty of other bloggers do so explicitly. For example, I've made a point of going to and blogging on some selected courtroom hearings for all of the advantages you outline. Eric.


2. Posted by Christine on May 8, 2007 @ 9:19 | Permalink

Eric,

You're right, there are instances in which bloggers originate facts -- by live-blogging or by blogging about things witnessed. I have live-blogged one streaming court video (the Disney appeal), but that's it. And of course, the fact-checking that goes on when the author witnesses something is usually against the author's own notes (a loophole described in Shattered Glass), so that's hardly a reliable filter.


3. Posted by anonymous on May 8, 2007 @ 13:58 | Permalink

When you link to things, you don't have an obligation to make certain they are true, but again your reputation rests on that which you link and comment to.

Saying "whoops, they got it wrong" afterthefact, and that you are not diminished because you just linked and had no obligation to find out whether what you were featuring on your blog is true or not, is a silly notion. You really can't have it both ways -- expecting to built credibility, yet disclaiming any effort to distinguish between facts and spin.

One question on blogs v. reporters: is it necessary to "be there" all the time boils down to reliability. Sure some law bloggers "specialize" but the mainstream press beats most blogs hands down because they are reliable. Unlike bloggers, the industry and establishments stand by their stories, even when a correction is needed. You tune in the next day; you know there is going to be a story. Not true on blogs which can be finicky about what they cover -- seriously -- and what is skipped. Sometimes when you tune into a blog on something breaking -- say the AG scandal story -- there is nada. They say this is because there is nothing new to say; some say the bloggers just play it safe and offer opinions on what everyone is offering recycled hash on anyway. Most blogs are definitely parasitic like that, whereas the specialized media has an overall reputation to uphold.


4. Posted by Anon on May 9, 2007 @ 13:13 | Permalink

Litigants' blogging is hardly an ex-parte communication. The same medium is available to both litigants. If one of them chooses not to exercise it, it should not be held against the blogger.

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