Personally, I’m not overly excited about the case of Barrett v. Rosenthal (PDF).

I know Glenn Reynolds is one example of folks speaking very highly of the ruling.  Eugene Volokh, as usual, gets into the legal aspects of it. Michelle Malkin doesn’t like it, explaining:

Perhaps because I have a foot in both the MSM and blog worlds and have been the target of defamation, I don’t see the ruling in quite the same positive light.

Why should online speech be held to a different standard than other speech?

If Barrett v. Rosenthal is applied to bloggers, as many assume it will be, if I re-publish a defamatory statement on this blog, I am immune from liability for libel.

But if I re-publish the exact same statement in my syndicated column published in print, I’m liable.

That absurd result is what the ruling seems to suggest and what many bloggers hope it suggests.

But aren’t bloggers the ones arguing that we should be treated like MSM journalists?

Not for my part.

Yes, I think that bloggers should in fact be treated like mainstream media journalists.  However…  (and here’s the rub that Michelle apparently doesn’t understand,) … my position…and I think, the position of a majority of bloggers, is that the press should not have any special rights whatsoever.

Certainly, we grant special rights on one hand, and special duties on the other, to public officials ; to firemen, policemen, judges, and so on.  We do this, because those extra rights are necessary for the responsibilities that those positions carry. That those positions and the rights that come with them have been open to abuse, and have been so abused on occasion, have long been the fodder of bloggers such as Billy Beck, for example.

But having established that, here’s the largest of issues in all of this: On what basis would we possibly grant the press, special rights? None whatsoever, that I can see.

In truth, there is a great deal of slop in this ruling, that will be sorted through over the next few years, and perhaps decades.
Part of the problem, part of the argument, necessarily, is definitional.  IE; How do we define what constitutes the press?  The remainder of the problem seems a matter of equal protection under the law. IE what can the acting in the public eye, do or not do?

But those are questions to which the answers lay on other questions… the definition of the words used.  Do we define bloggers to be members of the press?  If we do, what are the roles of the press, and what are the rights within those roles?  If we don’t, what are the roles and rights of each?

Frankly, I don’t share Michele’s paranoia as regards slander from blogs or much of anything else.  Certainly, I’ve been victim of it myself in my blogging life.  So, I think I can speak with a certain degree of authority on the subject.  I submit that bloggers to a large degree have taken up the position of the pamphlet pushers of the early 1800’s. A reading of some of those writings, most of them political, would certainly loosen the definition of “slander” to anyone who dared read them.


2 Responses to “Bloggers And Barrett V. Rosenthal”

  1. Eugene Volokh has solid legal mind.  Think he tends libersls.
    Glenn Reynolds is too far down blog roll to merit reading.  If
    case is some importance, Ann Althouse might have a summary.
    As for Reynolds, ignore the man behind the curtain.

  2. Volokh is remarkable, in that for a lawyer he tends to the right.
    Note the wording.

    Granted, as compared to Joe and Jane average, taht leaves a lot of room to the left… but there it is.