In late 2008 I proposed [1] that eventually someone would use a legal blog post as an authority in their factum. Here’s to one step closer to that goal.
I just noticed that a blog post of mine on Slaw [2] about Ron Livingston was cited in an article by Rebecca Phillips in the Fall 2010 [3] issue of the Campbell Law Review [4], Constitutional Protection for Nonmedia Defendants: Should There be a Distinction Between You and Larry King? [5]
Phillips discusses statements made by social media users used in defamation cases and its conflict with First Amendment rights. In her conclusion she mentions the Livingston suit,
…because the website’s policy is to not require posters to provide their real name, Wikipedia provides protection to a writer’s privacy unless he or she chooses to identify himself or herself. Because of these protections provided by Wikipedia, it is probable that Livingston’s suit is merely a shot-in-the-dark attempt to vindicate his reputation.
…the internet has provided another method of defaming a person or entity because it permits illegitimate “news” sources to post information on the World Wide Web with ease and a globalized effect. Despite the fact that it may sometimes be hard to point to who exactly the defendant is, it is apparent in situations such as these that the webusers making these harmful statements tend to rashly make posts that have injurious effects without acknowledging the consequences of their actions. Perhaps determining how these defendants will be treated in a lawsuit when and if these issues are presented to the judiciary will alter the way in which we all use the internet; or perhaps it will have no effect at all.
…the courts need to make a decision: Do these average citizen web-users, who are making statements to the entire world, merit the same protection granted by the First Amendment that legitimate media defendants receive? Although the courts have been able to skirt around the issue for decades, in light of the rise of citizen journalists, the time has come for a decision to be made: Is there a distinction between media and nonmedia defendants?
Ted Tjaden [6] has already mentioned the challenges around the legal citation of blawgs, but here I can add one more.
The actual url that Phillips uses is a post on Law is Cool [7] where I mirrored the Slaw post, something I did when I first started here [8]to help my readership transition over. The cross-posting is clearly indicated, and presumably it would make more sense to cite the post where it was originally found.
The format of Law is Cool is also very different – it’s based on law student authorship, which is incredibly challenging to maintain as old students graduate and new students begin. There’s far less certainty of the site being maintained a decade or so from now than there would be with Slaw.
One explanation could be SEO – the Law is Cool post was just found before the Slaw post was. Another could be a comment on the Law is Cool post [9] which pointed to further resources on the topic [10], making it a more valuable web reference.
Of course a blog post on online defamation and reputation management, a topic I write about quite a bit, lends itself more to a citation in an online legal journal. The question still arises as to why more blog posts are not cited in legal journals. The uncertainty of stable links is one of the main reasons in my mind.
There’s no reason not to based on content. We have the Law Professors Blog [11] network in the U.S., which provides ample academic insight from scholarly sources. And practitioner sites which focus on specific practice areas can be just as authoritative.
An example of the dead link issue can be demonstrated by the Persuasive Authorities blog [12], written by several legal academics, which I mentioned [13] in 2009 when the site was first launched. In a post on March 30, 2011 [14], Richard Albert [15]indicates the site will not be posting further. Considering that it’s hosted on Blogspot the content and links will presumably continue to be stable, but the issue of continuity of long-term web resources is clearly highlighted.
Internet users have traditionally for the past decade resolved the stable link issue through Internet Archive [16]‘s Wayback Machine [17], which archives internet content. But both Internet Archive [18] and Wayback Machine [19] have their own history with litigation, and there is no guarantee that either will exist indefinitely.
Additionally, the Wayback Machine does not archive everything (especially robots.txt [20]exclusions), and did not capture the Livingston post cited by Phillips:
One potential solution is for legal writers to use the url provided by the Wayback Machine archive. This also requires them to submit their blog references to the archive if they have not captured it, as above.
Don’t worry Rebecca Phillips, this one is on me. And thanks for the mention.