Gawker judgment, and possible licensing of journalists?


Robert Coleman offers a speculative article about the future of journalism (especially by amateurs) in the  Foundation for Economic Education site, “Before Celebrating Gawker’s Demise, Consider This”. I’m continuing a discussion I had started on one of my legacy blogs, particularly concerning Peter Thiel’s justification of his own financial assistance with the litigation, where he considered Gawker’s behavior to revenge porn, here.

Coleman makes a lot of assertions or conjectures, which don’t always follow the logical flow of proving mathematical theorems (remember plane geometry).  He points out that Hulk sued under a privacy claim rather than a direct defamation complaint, which, since he is a public figure, could have made the legal standard (regarding actual malice or recklessness) easier to meet.  He also points out that the punitive damage component of the judgment might have violated due process in the Constitution or 14th Amendment.

But then he goes into the idea of newsworthiness, and whether it outweighs a putative invasion of privacy (again, for a public figure).  A jury is given the power to determine newsworthiness, as might a judge on appeal later.  This is seen as a threat to the press and to free speech, and the First Amendment.  Leave newsworthiness determinations to consumers, he says.

Finally, after making a journey through sedition laws, citing John Adams (and making a link all the way to Donald Trump’s threats against the press) which have involved criminal penalties (during World War I, you could go to jail for even criticizing the military draft) Coleman comes up with an analogy between journalism and law as professions, and asks if journalists should have to be licensed, or if we could be heading here (especially if Donald Trump wins the general election).

In fact South Carolina state representative Michael Pitts introduced a “South Carolina Responsible Journalism Law”  (Think Progress story ) which would require registration and background checks before any media outlet could hire a journalist (that is, apparently, capable of press credentials).  Pitt is accused of trying to troll media supporters of gun registration.

What, then, about “amateur” blogging?  Bye bye?

There were columns back in 2004 like “the coming crackdown on blogging”, because of the possible compromise of the campaign finance reform laws (blogs could be seen as unaccounted political support).  That actually figures into an incident in my life when I was substitute teaching in 2005, but the legal and practical concerns blew over.

Just last Sunday, Sarah Jeong wrote a missive in the Washington Post Outlook section (celebrating the August 1991 birthday of the World Wide Web) where she referred to “The Internet of Garbage” and discussed the tenuous continuity of Section 230 of the 1996 CDA, due to the lobbying power of Silicon Valley.

Coleman rightfully notes that the “licensure” could destroy the press as we know it, and its ability to keep politicians and governments honest.  Libertarians have opposed almost all zoning  (“not in my back yard”) and licensing, saying it protects established legacy businesses (look at the issue of licensing cosmetologists, as John Stossel has pointed out).  Indeed, authoritarian governments take the position that “knowledge” should be passed down through channels of social (familial) and political (or religiou) authority.  The right to be heard has to be earned by “paying your dues”.  It’s interesting to consider Russia’s 2013 anti-gay “propaganda” law, predicated on a belief that pro-gay advocacy will lower Russia’s already low birth rate.  Vladimir Putin (whose shirtless selfies are provocative) sees all public speech as “propaganda”.  Maybe so does Donald Trump.

(Published: Tuesday, August 23, 2016 at 6:15 PM EDT)

Zoning and licensing laws can shut down innocuous home businesses; could writers be in jeopardy?


Regulation of home-based businesses by states or zoning rules, while perhaps well intended from a consumer protection viewpoint, can be damaging to entrepreneurs and potentially to speech.

Back in the 1990s, John Stossel had reported on the issue, citing a case where an African-American beautician in Kansas specializing in Afro hair styles was shut down because she didn’t have a cosmetology license.  In Charlotte NC, a woman selling cupcakes or cookies was shut down because she didn’t have a “commercial kitchen”.

In the Washington Times Wednesday, on p. B4, M.D. Little writes an opinion column “Unsung heroes: Meet the ‘cookie ladies’; Home-kitchen entrepreneurs fight for the right to bake”.   The op-ed gives a narrative of Kriss Marion, an organic farmer who has apparently run afoul of a Wisconsin law restricting the sale of homemade baked goods.

Unbelievably (or all too believably), more established bakeries have complained about having to compete with smaller, “unlicensed” home businesses that may not even need employees.

This issue did get some attention from the Libertarian Party in the 90s, as it has often advocated no zoning laws (the Houston TX model).

I have heard of this issue coming up for writers, at least back in the 1990s.  You heard right.  A township in New Jersey fined a rabbi for typing his sermons at home (in an era when personal computers were just becoming common).  A writer in Chicago was pursued for working at home, and there was one such case in Los Angeles.  Thankfully, I haven’t heard of any more such cases since about 1996.

I have, however, in both northern Virginia and Minneapolis (from 1997-2003) gotten home-based business licenses to sell copies of books legally.  I suppose, to the letter of the law, putting Adense on my Blogger entries qualifies as commercial activity.  I haven’t run into this, but the use of a residence for quasi-commercial activity could cause additional property tax assessments in some communities.  There could be a theory that the home operator is “competing” with commercial real estate by not renting overbuilt space.

Indeed, in the early days of the Web, some established news services were concerned about having to compete with amateur websites (like mine), very simple in structure (and easily indexed by search engines), with no overhead or employees.  That’s not so much the case anymore, as search engines are now much more partial to established news sites, and as people get a lot more news indirectly and participate much more on major social media platforms (like Facebook).  But in the ensuring scramble that could come up (partly in conjunction with national security), it’s all too easy to imagine a Donald Trump saying that content should not be free, but should pay its own freight.

(Published: Thursday, June 6, 2016 at 11:45 AM EDT)