Kathy Sierra's charges put blog responsibility questions front and center

Kathy Sierra's plight has ignited the blogosphere and the press. But who should suffer because Ms. Sierra is suffering? And are existing legal protections sufficient to ensure that only those who should, will?

The frightening threats against Kathy Sierra have been discussed on perhaps hundreds of blogs and in the press yesterday and today.  Also under scrutiny is Kathy's implication of various bloggers as bearing some responsibility for a third party's (or third parties') conduct which is rightly and roundly being condemned as reprehensible.  

I'm no stranger to those bloggers, though I was until now unfamiliar with Kathy and her work.  Jeneane Sessum, Frank Paynter, and Christopher Locke (and more peripherally Allen Herrell) have been part of my blogging family from day one.  As can be true of actual family members (if you're lucky), though I don't agree with everything they do, say, or write, they've often been inspirational to me, and have frequently dazzled me with their brilliance, compassion, sensitivity, and personal courage to call bull**** when they have believed it to be warranted.  I first hit "post" on a group blog administered by Jeneane, and thereafter on another administered by Frank (it then became his personal blog when he voted us rabble off the island; see Frank, the 'Net never forgets).  (Here's a blast from the past for some of you reading:  remember blogtank?  Who the heck was administering that one?)  I first hit "post," along with a flurry of others, because Chris was engaging in some good old fashioned link-bartering and article-foddering, but primarily because of his infectious and ultimately accurate conviction that blogging was, and was going to be, quite an important and powerful form of communication.  It was Frank who first suggested to me, indirectly, by emailing me a question, that writing about legal issues for non-legal people might be a useful and desirable thing to do.

So, my consideration of this fracas is not without its baggage.  (Groaner; sorry.)

The thing that has stood out in starkest relief for me is not the fact of the threats or Kathy's reaction to them.  As others have ably pointed out, it's a big, scary world we live in, populated in part by a tragically high proportion of psycho- and sociopaths.  What has stood out for me is the extent of the potential disconnect between what real people actually do with Live Web tools and what the law might expect them to do based on its experience with what it mainly knows:  the primarily professionally administered static Web.  Real people don't meet a tool like Blogger or TypePad and, upon learning they can set up a group blog, think "Gee!  How cool.  Let me get my lawyer (what lawyer?) on the phone to draft up some really nifty terms and conditions so everyone will know just what's expected of them, and spell out exactly who owns, and who is legally, morally, and/or ethically responsible for, what."  They just don't.  In all likelihood they're writing at night when they should be sleeping, or otherwise in their "spare" time.  While sophisticated and well-advised political opinion makers might, real people lack both the resources and the foresight.  You might think they should, and maybe they'll start to, but imposing such requirements and expectations will quell socially valuable speech.  There's no getting around it.  Part of the ability of a blog to serve as "a little first amendment machine" does die at that moment.

Kathy has now suggested she does not intend to pursue legal remedies against those not directly responsible for the blog posts she has taken to task:

I should be more clear, though, that while *someone* broke the law with the noose photo/comment, I'm definitely NOT suggesting that anyone else did anything legally wrong.

However, nothing says she can't change her mind.  And nothing says that the next person with potential criminal or civil claims arising from an incident related to a group blog authored by real people without lawyer-drafted-and-blessed terms, conditions, and understandings won't attempt to hold the administrators and/or co-bloggers legally responsible for the actionable conduct.  As one who has followed the developing law under Section 230 of the Communications Decency Act, I have concerns about its ability to adequately protect each of the individuals who might confront, but by rights should not face, legal consequences in this sort of situation.  I have concerns about a court's willingness or ability to analogize this sort of situation to the existing body of Section 230 jurisprudence.  Those concerns are of course amplified as to parts of the world where Section 230 does not apply and has no local equivalent.

There's more to say but those are going to have to be my thoughts for now (I'm writing at night when I should be sleeping).  I gave some additional comments to the BBC's Jane Wakefield for a piece she is preparing to follow up on her earlier "Blog death threats spark debate."  Should they get truncated for (or left out of) the article I'll post them here.