Update on court opinions' citations of blogs

One of my main arguments in favor of a "fairness doctrine" for blogs -- i.e., a law prohibiting arbitrary censorship of blog visitors' comments -- is that blogs are being authoritatively cited by court opinions, scholarly journal articles, the official news media, etc.. Obviously, the purpose of such censorship is to present just one side of controversial issues and so blogs that practice such censorship obviously lack fairness and have low reliability and so should never be authoritatively cited. I am amazed that I have to explain this to people -- this is not rocket science.

One of the blogs that arbitrarily censors my comments is Law Blog Metrics, which posted the original study on court opinions' citations of blogs. They never gave a reason for blocking my comments. And not that I think any blog with unlimited Internet access is really private, but Law Blog Metrics happens to be run by a public university, the Univ. of Cincinnati, which makes their arbitrary censorship especially bad.

Though there was a recent news story that someone traveled 1300 miles to burn down the house of an Internet rival, a lot of people have told me that they don't believe that arbitrary censorship of blog visitors' comments really happens on the Internet.

No authoritative citations are more authoritative than authoritative citations by court opinions. There is no reason why a single authoritative citation -- even if nonbinding -- could not be the deciding factor in an important judicial decision. Law Blog Metrics' original study of court opinions' citations of blogs, reported in Aug. 2006, has now been updated on the Concurring Opinions blog. The original study listed 32 court opinions' citations of blogs and the update adds 16 from the last 12 months -- hardly a flood of citations. This is a drop in the bucket compared to the numbers of court opinions' citations of law journal articles. In comparison, an August 2006 article lists 489 citations of law blogs by law journal articles. A previous article on this blog gives some reasons for the low number of court opinions' citations of blogs.

A visitors' comment on the Concurring Opinions blog says,
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One of the interesting things about citing to a blog posting is not only that the blog may disappear, but that it can be changed. Edited. After the citation. What then?

One of the bloggers responded,

I searched for and read these citations, so I would like to make a few observations. Only in a few of the citations did the courts actually quote from the blog posts. Quoting could solve the editing problem to some extent, because even if the blog post is not static, the original quote would appear in the case. A few of the citations included the date that the blog was accessed. This should probably be required for citing blog posts, as well as any internet source. However, finding the posts (whether they are original or not) can be a problem. Only a few of the cases cited the date of the post. All provided links to the post, but in many cases the links did not work and I looked in the blog archives.

That sounds like an awfully sloppy way to make authoritative citations in court opinions. Also, quoting the blog is not enough because the context of the quote may be important. The Harvard Law Review Association's sixteenth edition of The Bluebook: A Uniform System of Citation (the Bluebook) gives some guidelines for citations of Internet sources, e.g., blogs:

Rule 17.3.3 sets forth citation rules for "Internet Sources," a welcome and much needed addition to the Bluebook. Though this rule admonishes readers to use "transient" Internet citations only when alternative printed sources are either unavailable or nonexistent, I suspect many legal professionals will want to "bookmark" this rule.

A citation to a source on the Internet should contain the author's name if available, the "title or top-level heading" (this could range from the name of an entire Web site to the title of an article within a huge Web site), and the URL or "Uniform Resource Locator" (the unique electronic address that points to the source). The citation should also contain the date of publication if available; otherwise, the date "last modified" by the author or the date "visited" by the person citing the source will suffice. Thus, a citation to the American Bar Association's recently published report on citation issues would look like this — ABA Special Committee On Citation Issues, Report And Recommendations (May 23, 1996)

IMO it would be a good idea to have a special place for archiving cited blog articles and other Internet sources, e.g. Wikipedia articles. The direct links of cited Internet sources should be archived as well.
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