There’s going to come a day when there will be a need to police the speech of legal bloggers. Not across the Internet in entirety, but by a company or organization hosting or syndicating legal blogs. Could be LexBlog.

Censorship of legal bloggers has not been a big topic of concern among the legal blogosphere. Sadly, most legal bloggers are afraid to offend anyone, though we have seen a few get bounced off Twitter for a bit, I suspect out of machines doing automatic takedowns. 

With legal commentary, most of which will come from blogs, being so critical to the advancement of the law, “in person” moderation will be much preferable to machines. 

The highly successful membership platform, Patreon, that enables publishers to charge subscriptions and bring in as much as six or seven figures a month, provides a nice example of human censorship.

The New York Times’ Nellie Bowles reporting on hate speech censorship by Patreon, details their approach.

Patreon takes a highly personal approach to policing speech. While Google and Facebook use algorithms as a first line of defense for questionable content, Patreon has human moderators. They give warnings and reach out to talk to offenders, presenting options for “education” and “reform.” Some activists hope this will become a model for a better and kinder internet.

There are no automated takedowns,” [founder Jack] Conte said. “As a creator myself dealing with these big tech platforms and getting an automated takedown notice, there’s no appeals process. You can’t talk to a human. And I never want to do that.”

Jaqueline Hart, Patreon’s head of trust and safety, said her team watches for and will investigate complaints about any content posted on Patreon and on other sites like YouTube and Facebook that violates what it defines as hate speech. That includes “serious attacks, or even negative generalizations, of people based on their race [and] sexual orientation,” she has said.

If someone has breached Patreon’s policy, the company contacts the offender with a specific plan, which usually involves asking for the content to be removed and for a public apology.

As I understand the law, there is no right to free speech for publishers on third party owned platforms. The only right is that the platform owner is within its right under the First Amendment to decide who and what gets published. 

Just as “offensive” matters and “speech” are the subject of adjudication in our courts and the subject of discussion in legal reporting and commentary, platforms powering publishers in the law will need to take a liberal approach to what is allowed – and hopefully do so by hand. 

Platforms such as Twitter or Facebook represent a fire hose of constant worldwide content. Machine policing is a necessity.

Legal blogs represent no where near the volume. Some blogs may not make it onto an aggregation or hosting platform such as LexBlog. For those that do, a personal approach, aided by machines, to policing seems very doable.

I ran across the same shocking legal commentary as American journalist, Jeff Jarvis, this morning. Legal commentary from a judge and a lawyer who look ill equipped to counsel anyone on the future of copyright laws.

I agree with Jarvis when he posts ‘First, kill the lawyers – before they kill the news.’

Following the frighteningly dangerous thinking of Judge Richard Posner – proposing rewriting copyright law to outlaw linking to and summarizing (aka talking about) news stories – now we have two more lemming lawyers following him off the cliff in a column written by the Cleveland Plain Dealer’s Connie Schultz.

First note well that Schultz is married to U.S. Senator Sherrod Brown as she calls on her newspapers and employer (my former employer, Advance Publications) and fellow columnists to influence Congress to remake copyright. She should be registered as a lobbyist. No joke.

Schultz says that David Marburger, an alleged First Amendment attorney for her paper, and his economics-professor brother, Daniel, have concocted their own dangerous thinking, proposing the copyright law be changed to insist that a newspaper’s story should appear only on its own web site for the first 24 hours before it can be aggregated or retold.

Incredible. So if the Plain Dealer reported exclusively that, say, the governor had just returned from a tryst with a Argentine lady, no one else could so much as talk about that for 24 hours. A First Amendment lawyer said this.

Jarvis goes on to explain how nutty thinking like Marburger’s is. The death of Michael Jacksoon spread like wild fire across social media (mostly Twitter) with people linking to TMZ’ report. Marburger would give TMZ an exclusive on the report for 24 hours. But TMZ is not a newspaper so they don’t get the Marburger/Plain Dealer protection?

I’m not a copyright law expert representing newspapers. I don’t know how copyright law issues will play out. I don’t know how social media and the Internet will continue to change everything.

But actively taking part in social interaction on the net for the last 14 years (first as a practicing lawyer), blogging for the last six, and Twittering for the last couple, I wonder if I have a far better view of what’s going on than some lawyers who profess to be experts on the subject.

I’m not certain anything has changed in the way news spreads. It just spreads faster. Newspapers, Radio, and TV historically broke the news. We spread the word. We told people to turn on the radio, watch TV right now, and get a copy of the newspaper. Newspapers didn’t complain then when we sent them traffic and new subscribers.

Because news spreads faster we’re supposed to give newspapers a monopoly on the news? That’s crazy.

Jarvis makes a compelling point which lawyers advising newspapers ought to think about when counseling newspaper clients.

Schultz and the Marburgers complain about what they call the ‘free-riding’ of aggregators, et al. But they simply don’t understand the economics of the internet. It’s the newspapers that are free-riding, getting the benefit of links.

The framers of our Constitution, including the First Amendment, intended it to endure and cope with the effects of the anticipated changes of our nation.

Things have changed – changed quickly. But let’s be careful when thinking of following lawyers and Judges who may not understand the nature of the change.