A Conspiracy of Paper


The Volokh Conspiracy is a group blog of more-or-less libertarian law professors. It is a senior statesman of the legal academic blogging world: brothers Eugene and Sasha Volokh started blogging together in 2002. As with any group blog, the topics can be eclectic. So while predictable themes like federalism, economic liberty, and gun rights dominate, there are also Eugene Volokh’s love of puzzles and Orin Kerr’s love of jazz.

And now all of it—the federalism and the jazz—live at the Washington Post. The Volokh Conspiracy’s bloggers retain sole editorial control, but the blog will live behind the Post’s “rather permeable” paywall after a six-month transition period and the bloggers will share in the advertising revenue.

The move strikes me as regrettable for all concerned. Blogging and journalism are different enterprises with different goals and different values. They can be married, but this particular combination is less love match than joint venture; the Volokh Conspiracy, content otherwise unchanged, now appears on the Post’s website, with a Post URL and with the Post’s branding. I fear that rather than sporting the best features of blogging and journalism, the combination will sacrifice both.

For the Post, the move blurs an important line about journalistic accountability. The Volokh Conspiracy bloggers join the Post as Wonkblog editor Ezra Klein is leaving for a mysterious new venture. But there is a crucial difference: the Wonkbloggers are Washington Post employees; they are responsible for maintaining the Post’s standards. The Volokh Conspiracy bloggers are independent contractors and have complete control over their blog’s contents.

To be clear, I am glad that the Volokh Conspiracy’s authors will continue to decide what to write; their distinctive voices make the blog what it is. But I do not see this going well for the Post. In trademark law terms, the Post is engaged in naked licensing: putting its brand on a product over which it exercises no quality control.

Take accuracy. The Post is a newspaper and proud of it; it has a detailed corrections policy that includes sections on blogs and social media. But the Volokh Conspiracy’s editorial independence means that the Post’s writ does not run to the /news/volokh-conspiracy/ directory on washingtonpost.com. (Note: it’s in the “news” directory, not the “blogs” directory.) This is a blog with twenty-three authors, some of whom court controversy. If one of them gets a story wrong, the Post’s reputational custodians could rightly ask who gave the car keys to the new kid.

Then there is the matter of journalistic neutrality. When Timothy Lee joined the Post, he sold his Bitcoins “to comply with WaPo’s strict conflict of interest policies.” (Those policies are available here.) It seems unlikely, however, that Todd Zywicki will give up his consulting work (already a matter of public controversy). Nor does it seem likely that Randy Barnett will give up the tireless public advocacy that nearly brought down Obamacare. Indeed, the Volokh Conspiracy’s “we’re joining the Post” post emphasizes that the bloggers will keep their day jobs.

The Post will “pass along” Volokh Conspiracy posts to its readers. Those readers are entitled to know whether a given item on the website is subject to its editorial and conflict-of-interest policies or not. I am reminded, and not in a good way, of AOL’s similarly arms-length relationship with Matt Drudge. Editorially, the Volokh Conspiracy bloggers are in every way outsiders to the Post, but it also seeks the cachet and page views of being associated with them. The issue is not unique to the Volokh Conspiracy, or to the Post. Such questions also arise in relation to Post’s The Monkey Cage, as they arise in relation to outside contributors to blogs at other publications.

Again, my point is not that there is something wrong with using the Volokh Conspiracy as a soapbox for personal and professional views. Soapboxing makes for memorable blogging. My point is that the Post’s norms as a newspaper are much stricter about when and how writers can use its pages as a soapbox, and that this tension has not been squarely addressed. Unless I am mistaken, David Bernstein doesn’t call Human Rights Watch for a comment every time he criticizes it; as a polemical blogger, he is not expected to. But journalists do call for comment, and the Post has done little to explain when, how, and why its usual rules are suspended here.

The move to the Post is also, I think, bad for the Volokh Conspiracy. It has an integrity of its own, one that comes from authenticity and clarity of vision. Its authors have been generous in their engagement with the blogosphere. Even at their rantiest (which by Internet standards is usually quite civil), they are generally quite good at linking to and responding seriously to opposing points of view. They have shared, freely and openly, enormous amounts of insight with the world over the years.

Moving the blog behind a paywall is antithetical to these values. There will still be ways for dedicated readers to get past the paywall: it’s free to those with .edu and .gov addresses, and the blog’s RSS feed will still be full-text. But the message is clear: the front door is being closed, even if the back door will remain unlocked for now to those who know the secret knock. I know as a blogger that linking to articles behind paywalls frustrates my readers. Sometimes I have to, but it always feels like putting weight on a twisted ankle.

The goal is a “broader reach for our ideas” but I suspect the result will be just the opposite. Volokh Conspiracy posts will be less often linked, less often debated, less often significant. Fewer people will ponder Orin Kerr’s thoughtful breakdowns of Fourth Amendment developments; fewer people will read Dale Carpenter’s play-by-play coverage of same-sex-marriage cases; fewer people will watch Will Baude make federal courts actually seem interesting. The platform that helped Randy Barnett lead the charge against Obamacare may fade away. I may not agree with all or even much of what is said there, but I for one would regret the loss.


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