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Commenting on the Wild Web
David Lat is the founding editor of Above the Law. He previously served as editor of Wonkette, the widely read politics blog, and he founded Underneath Their Robes, the judicial news and gossip website.
Prior to that, David worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz, in New York; and a law clerk to Judge Diarmuid F. O’Scannlain, of the U.S. Court of Appeals for the Ninth Circuit.
David graduated from Harvard College, magna cum laude, and Yale Law School, where he served as book reviews editor of the Yale Law Journal.
Question: How do you handle commenting on Above the Law?
David Lat: Commenting on our site is completely open, so we don't even require registration. We thought about it, but lawyers are very paranoid about confidentiality. And if they're going to be commenting on an item about their law firm, they don't want to provide any information about their name or their email or anything. So it's completely open. And a lot of times, people can say that they are somewhat – that they are necessarily in the comments. So people might say, "Oh, well, I'm a partner at a law firm," and perhaps they are not. Maybe they're just a One L in law school.
So it is a little bit of anarchic environment, which I think is what makes it a little bit fun. And they develop their own means and their own inside jokes. There are sometimes times when you wish that there was a better signal-to-noise ration because sometimes the random comments drown out the substantive ones. But for the most part, I think the comments are actually quite helpful. And I think that we get a much higher proportion or number of comments, compared to our other main competitors. And I think that is an advantage for us. It can also be a headache because people might view the site as if you judge the site based on the commenters as opposed to the material that we, the editors, are generating, you might think that it was written by a particularly juvenile people, when really, the content that we put out under our own bylines is rather professional. I mean, it has attitude, but we do this fulltime. This is a professional operation. But the commenters can be quite rowdy.
Question: Do you moderate comments on Above the Law?
David Lat: We do moderate comments on Above the Law with some regularity. Usually for the typical reasons: Something is offensive, something, really offensive because we do believe in free speech. But if something is just horribly offensive, we will moderate that. If something is potentially defamatory, we might moderate that. But we get so many comments and we don't have active real-time moderation. It tends to be more of a notice and take-down kind of approach, a little bit like You Tube uses, with respect to copyrighted videos. If someone has a problem with a comment, they should email us, firstname.lastname@example.org, and tell us, "This comment, Comment Number 53 on this post, is inappropriate. Can you please remove it?" Because we don't time to – on some posts, we get – one post we did yesterday or two days ago has 500 comments on it. We don't have time to read all 500 of them. We're too busy writing the next post. Because one thing about blogging is you have to continually be feeding the beast. Every 30 minutes, every hour, people want to see new content up.
Question: What is your position on free speech on the Internet?
David Lat: I'm generally a fan of Section 230, which is the law that makes website operators essentially legally immune from liability from comments posted by third parties. Because I think it helps foster free speech on the Internet when a website operator doesn't have to be worried about getting in trouble because of something that someone else posted. It would almost be like holding it– in a way, I almost see the Internet or a site like ours as a wall and people will write things on it. And sometimes people will write things that are intelligent and substantive and sometimes people will write things are graffiti. And I don't think necessarily we should be held liable for things that people write that are inappropriate, especially when we do moderate them. We do moderate. Then there's this argument that well, because you moderate, should you lose your Section 230 immunity? The case law says no. Just because you make a good-faith effort to remove the really bad stuff, doesn't mean you can be held liable for the stuff that you leave up. But it's definitely a tricky issue.
Recorded on November 6, 2009
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