TechLaw

Technorati's latest report on blogging trends indicates that blogs are fast becoming part of the mainstream news media. Technorati's most recent data (Q4 2006) shows that 22 blogs made its list of the 100 most popular Web sites. Blogs like Engadget and Boing Boing surpassed Web sites belonging to "mainstream media" like Business Week, The Economist, The New York Post, and Bloomberg. Blogs operated by Gizmodo, TechCrunch, Lifehacker, and The Huffington Post all outpaced dozens of established mainstream media outlets.

According to Technorati, the reflects a spike in blog interest from the previous three-month period, when just 12 blogs were among the Web's 100 most popular sites.

According to Technorati founder Dave Sifry:

Information not shown in our data but revealed in our own user testing in Q1 2007 indicates that the audience is less and less likely to distinguish a blog from, say, nytimes.com -- for a growing number of users, these are all sites for news, information, entertainment, gossip, etc. and not a 'blog' or a 'MSM site.

What's this have to do with cyberlaw you say?

In Kentucky, at least, the distinction between blogs and mainstream media continues to have meaning. Web filtering software on state-owned computers prevents employees from reading blogs while permitting them to read Web sites published by mainstream media. Defending this policy against a First Amendment challenge brought by a blog publisher, Mark Rutledge, Commonwealth Office of Technology Commissioner, cited the popularity of blogs among state employees. Prior to the installation of filtering software, "reports revealed that employees were frequently visiting the following Web site categories, which appeared to have a tenuous connection or no connection at all to any legitimate business purpose: entertainment/motion picture, auctions/classified ads, humor/comics and newsgroups/blogs."

Rutledge added that the commonwealth's filtering software did not block blogs operated by established news publishers, such as the Lexington Herald-Leader and local television stations.

Governments have considerable leeway in setting Internet access policies, though the First Amendment  presents some constraints. State-owned Internet access is a "non-public forum" where restrictions need only be reasonable and viewpoint neutral in order to satisfy the First Amendment.

Nevertheless, Kentucky's policy appears to raise a few non-trivial questions. Is it reasonable to distinguish between blogs and mainstream media? According to Technorati's data, distinctions between these two categories are quickly eroding. Is it reasonable to distinguish between online materials that are popular (blogs) and those that are less so (mainstream media)? Is it reasonable to permit a mainstream media outlet's blog to be read by state employees but not an independent blog? None of these distinctions are based on the content of the material. These distinctions are interesting, to say the least.

In a recent ruling, Judge Karen C. Caldwell tentatively approved Kentucky's Web filtering policy. Her March 30 opinion denied the blogger's request for a preliminary injunction. Judge Caldwell seemed untroubled by the commonwealth's decision to cast all blogs into a single basket of content unfit for state employee consumption, just the same as comics, classified ads and celebrity gossip. "This policy is reasonable and consistent with the purpose of the Internet on state-owned computers, which is to conduct state business," Judge Caldwell wrote.

The case is Nickolas v. Fletcher, No. 3:06-CV-00043 (E.D. Ky. March 30, 2007).