On Comment-Free Blogging (Updated)

by Kevin Jon Heller

In the comments to my previous post, I described refusing to allow comments on a blog as an “act of cowardice.”  Ben Wittes, one of the contributors to Lawfare, a blog that does not allow comments as a matter of policy, doesn’t appreciate the description:

Anyone who wants to understand why Lawfare does not take comments need only take a brief look at this comment thread over at Opinio Juris blasting Lawfare–and others–for not taking comments. As the old saying goes, the thing speaks for itself.

I’ll leave it to readers to decide whether our comments policy is, as Kevin Jon Heller puts it, “an act of cowardice” or whether it is, as I like to think of it, what we used to call in the news business editorial judgment. But it certainly is, as Benjamin G. Davis puts it, “a control mechanism,” an effort at “total control of whom [sic] can post.” We run this blog to provide useful information and to express our views, not to operate a free-for-all for anyone who fashions himself as having something to say. Anyone who wants to comment should feel free to send an email, which we often post, or to post to our Facebook page. Or, in the alternative, it seems that you can post comments about Lawfare on Opinio Juris. Or, if you really feel strongly about it, you can start your own blog.

The offending comment thread to which Ben refers consists of precisely three comments addressing the issue at hand.  The first criticized closing comments on an Opinio Juris post, not a Lawfare post.  The second was mine, making the aforementioned claim.  And the third was an extremely reasoned critique of blogs that do not allow comments — and of the exclusionary nature of the national-security-law world in general.  That’s it.

I continue to believe that refusing to allow comments on a blog is indefensible — just as I believe that it is indefensible to comment on a blog anonymously (except in situations where one’s job could be threatened).  Ben describes Lawfare’s no-comment policy as “editorial judgment.”  It seems to me that the only editorial judgment involved is that no one other than the contributors to Lawfare — and those whose emails Lawfare deigns to post — have anything of value to say.  Indeed, the elitism drips from Ben’s post; just consider his claim that to allow comments on Lawfare would be “to operate a free-for-all for anyone who fashions himself as having something to say.”  How dare readers have the temerity to think they’re good enough to respond to Ben — on Lawfare, no less!

As a blogger who is prone to strong opinions, I am the first to admit that reading comments can be a painful experience.  I have been accused of being anti-Semitic; of being a self-hating Jew; of not believing that Israel has a right to exist; of being anti-American; of being a communist; and so on.  I’ve also had my mistakes pointed out to me more than once.  But that is simply the price I pay for being something of a public intellectual.  Blogs are not, as Ben assumes, simply fora for “experts” to make themselves heard — the online equivalent of the New York Times editorial page (which Ben never tires of attacking).  They are places for discussion and debate, where some voices may be more important than others but no voice is excluded.  Are bloggers obligated to allow comments?  Of course not.  But let’s not pretend that refusing to allow them is some kind of noble act designed to ensure the integrity of academic debate.

UPDATE: In light of Marko’s comment below (!), I have changed my mind about whether a no-comment policy is cowardly.  It certainly can be, and I suspect that most bloggers who refuse comments are simply afraid of criticism.  But it is not necessarily cowardly; it may simply reflect the blogger’s belief, so well expressed in Ben’s post, that the unwashed masses have nothing useful to contribute to discussion of complicated legal issues.  Frankly, I think that kind of elitism is worse than cowardice.

UPDATE 2: Ben responds — sort of — at Lawfare.  There isn’t much more that needs to be said on the issue; Ben is absolutely right that he and his colleagues are in no way “under some obligation to design this forum to Heller’s specifications.”  They are well within their rights to run a blog without comments, just as I am within my rights to criticize them for doing so.  (And in my humble opinion, describing a blog that doesn’t take comments as a “forum” seems like a stretch.)

For the record, I am delighted that my friend Steve Vladeck has joined Lawfare as a permanent contributor.  Though no substitute for genuine openness, the ideological diversity that Steve brings to the blog is welcome, and the invitation to him to join speaks well of Ben and the others.

http://opiniojuris.org/2012/01/03/ben-wittes-is-mad-at-me/

19 Responses

  1. I would think “editorial judgment” is more properly exercised in excluding irrelevant comments or comments that are purely or primarily ad hominem in a needless way. With some blogs I find myself unable to stomach the comment threads (e.g., Volokh Conspiracy), but the better law blogs seem able to find a middle way between disallowing comments and “anything goes.” It takes a little attention to moderate some of the busier blogs but I would think in the end or all things considered, the effort is worthwhile. I don’t read Lawfare generally simply because it doesn’t allow comments.

  2. Patrick,

    Agreed.  I have no problem with blogs that moderate comments, save for those that seem to moderate them on the basis of content.  Maintaining a civil dialogue is one thing; insisting upon a monologue is something quite different.

  3. Hi Kevin,
     
    While I’d agree with you that comments should in principle be a part of a successful blog, I don’t think that the only reason for a no-comments policy can be intellectual cowardice.

    For our part on EJIL Talk, being as we are both a blog and an online extension of an academic journal, we most certainly do reserve the right to moderate comments not just on the basis of civility but also on the basis of content. The comment threads of many a blog have been derailed by irrelevant or plainly stupid comments – see, e.g., Balkinization, which is otherwise a great academic blog.

    Just like we wouldn’t publish everything in the EJIL itself, so we wouldn’t publish everything on the blog, and that applies both to posts and to comments. Blogs, especially academic blogs, are not some kind of traditional public forums in which editorializing on the basis of content should be absolutely prohibited. There’s nothing wrong with elitism, thank you very much, and following our blog and many other blawgs, and especially commenting on the work of others, does require a level of background knowledge – not as much as in a journal, but some. It also requires commenters to follow the general mores of reasoned academic criticism, again if much more informaly than in a journal. I agree that the line between censorship or viewpoint discrimination on the one hand and sound editorial judgment on the other is a fine one, but that is also a line we tread every day when editing academic journals.

    In short, in my view Lawfare is perfectly entitled to have a no-comments policy as a matter of their editorial judgment. Moderating comments on the kinds of topics that they deal with is a time-consuming exercise, and the comments can tend to produce far more heat than light. Calling such a policy cowardly is I think too harsh, even if you and I would prefer to have open comments, as on OJ or EJIL Talk. I do agree with you, however, that such no-comment a policy might tend to strenghten the insular tendencies of some in the national security law-crowd in the US. If not cowardly, that is still regrettable.

  4. Marko,

    It’s interesting that you conclude Lawfare is entitled to have a no-comments policy, given that most of your thoughts are dedicated to defending a blog’s right to moderate comments, even heavily — a position with which I agree.  I might even be prepared to accept a blog that, after having had terrible experiences with comments, such that even heavy moderation does not work, closes them completely.  I’m also not opposed to blogs closing comments on particular issues, after having bad experiences with them; I’ve certainly been tempted to close comments on my Israel posts.  Lawfare, however, has had a no-comment policy from its first day; it has never permitted comments, so its contributors have no basis for concluding, in your words, that they would “produce far more heat than light.”  They simply did not want public feedback on their posts.

  5. Kevin,
     
    Well, I don’t think it’s entirely true to say that they don’t want any public feedback. You can always email them, and they frequently post the content of such emails. They also have comments on their Facebook page. Now, obviously, self-selection of comments that they incorporate in their posts is susceptible to confirmation bias etc, but they have published and engaged critical comments as well. Again, I agree with you that this is not the best possible commenting policy, but I still don’t think it’s out of bounds.
     
    I guess it depends on what you make your comparisons with. If, say, I published an article in a journal, and you wanted to write a response or a comment, it is by no means a given that the journal will publish your comment – that depends on the journal’s editorial policy, the quality and relevance of your comment as judged by the editors, and so forth. The journal may even have a policy never to publish such response pieces, while of course allowing for criticism of previously published work in separate, self-contained articles. Bad idea? Probably. Out of bounds? No, as there are plenty of other avenues of expressing legitimate disagreement. Similarly, with Lawfare, you can always write a post in response on OJ, I can write one on EJIL Talk, somebody else can create their own blog, use Facebook or whatever. I just don’t see why you think that there is a world of difference between a heavy moderation of comments, which you say is kosher, and a no-comments policy, which you say is not – both look like shades of gray to me, subject to perfectly reasonable disagreement.

  6. I would never normally comment on a blog posting so with a nod to the ironic muse I will break with my personal convention for this topic.
    My perspective on this as an academic publisher is that I am on the lookout for indicators of quality beyond traditional peer review. The Internet has made it so much easier to publish views and opinions that the comments frequently fulfil a similar function to knowing that a journal article has gone through peer review. The assumption is that whether the posting contains a crass factual error or merely overstates the strength of an argument, intelligent and informed readers will point these out for the benefit of the rest of us. As a reader knowing that such comments are allowed gives you greater trust in the content. The public shaming of a blogger whose post-haste results in a real howler ought to result in that blogger taking greater care in future. Conversely seeing very detailed and thorough responses to postings gives the reader greater confidence in the quality of the scholarly dialogue that is being engaged in. In the minds of readers this builds brand values in both individual bloggers and the blogs where they disseminate their thoughts. In the absence of reader comments these brand values are created either by the reader’s own expert knowledge allowing him/her to judge quality independently or (and this is I think what is being claimed regarding the subject matter discussed at Lawfare) whether  the opinions on offer appeal to him or her ideologically.
    So I would agree with Marko that it is not a matter of courage or cowardice. It feels to me as if the accusation, if any, would be more akin to something like a lack of community spirit: assuming that there is a community of scholarly blogs/bloggers who all have an interest in blogs being taken seriously as a form of academic commentary then those which do not allow comments could be seen to be free-riding on the growing credibility that those which do allow comments are bringing to this form of scholarly dialogue.
    That people hide behind pseudonyms to publish comments they are too ashamed to have attributed to them is in my view where the true cowardice lies.
    John Louth (Editor-in-Chief, Academic Law, OUP)

  7. Online Influence Space(s) and Digital Influence Waves: In Honor of Charly, 25 Ohio St. J. on Disp. Resol. 201-246 (2010).

    I have written about online influence spaces in the above.  The point about no comments policies or moderated comments policies is that they are about hierarchical control.  No comments are the strongest form of control and moderated comments are a lesser form.   I do not know whether this is cowardice or quality – but it is definitely about control. 

    I challenge that controlling.  I lived that controlling in the experience in leading the 2006 American Society of International Law Centennial Resolution battle (all described in the above article). 

    What I salute is the willingness to open up the echo chamber of national security law that I find here at opiniojuris.

    In a no comments space like lawfareblog.com, if what I posted here were sent as an e-mail to someone in control, it has to pass through the filter of their view of what is appropriate commentary.  I question their judgment of what is appropriate, just as I question their approach to national security for my country.

    For the record, Ben Wittes and I have also tangled at American University where I questioned the basic assumption  of his book trying to classify detainees based on the statements made – because the evidence was derived from torture.

    For the record, I challenged Bobby Chesney to a lesser extent several years ago down at Duke where I attempted to challenge the various sbires of the national security echo chamber on their thoughts on torture and military commissions.

    I am glad that Steve Vladeck is added at lawfareblog.com but I still insist that the space is too narrow as I have said to Kenneth Anderson. 

    I am awaiting the day that an African-American is recognized as an expert in the national security space on the foreign relations law and/or international  law space by the ambient white and somewhat Asian group who consider themselves and make sure others consider them only the anointed to speak on these topics. 

    After all, 30 per cent of the soldiers fighting these armed conflicts you get us into are African-American.  If we are good enough to fight, we are good enough to participate in the high-level policy discussions bringing to it our particularly painful history of efforts at hegemony and subordination that go back to the language of the Constitution itself and even before.

    In the European space, as a 17 year European resident, I raise the issue whether Europeans of color are also kept out of the space of discussion of these national security debates there.

    Everyone calling themselves an expert in this space is self-proclaimed.  That their views get accepted by this or that part of the US or other national security establishment merely means that their views meld or fit with the objectives of those parts of the national security structure – that’s it.  Acceptance by that establishment does not mean it is a good idea – it just means that power likes your idea.

    I see I have struck a nerve – good.  Many of you guys need to have your nerve struck particularly for your longstanding silence on high-level accountability for torture done in the name of Americans. In that regard, I draw your attention to the forthcoming book from Human Rights USA entitled INDEFENSIBLE: A Reference for Prosecuting Torture and Other Felonies Jan 2012.  Deal with it.

    And I leave to the side the Americans of Middle Eastern descent, the Native-Americans, the Hispanics who are not right-wingers like Alberto Gonzales etc. or the broader left.

    If what I say is so bracing to you, you need to get out more.

    Best,
    Ben

  8. ” But it certainly is, as Benjamin G. Davis puts it, “a control mechanism,” an effort at “total control of whom [sic] can post.” ”

    I know a subtle “dis” when I see one.  Given my fundamental challenge to the views of the three sbires of lawfareblog.com and many of the other authors of out national security policy in the Executive, Legislative, and the Judiciary, I can expect nothing else.

    I am tired of the repression in this country.  WIll endeavour to continue to bring light.

    Best,
    Ben   

  9. I think that a law professor blogger should feel perfectly free to close comments, and that it is quite unfair to call such a decision an act of cowardice. Blogging takes time, and moderating comments only adds to the burden. There is a legitimate concern on many blogs that the comments will be inappropriate, distracting, uncivil, or of generally low quality.  

    I rarely read the comments at Volokh, and invariably am disappointed when I do. I have complete sympathy for any blogger at Volokh who chooses to close comments. We are fortunate at Opinio Juris to have much higher quality comments, and I think our comments add to the overall experience.  We truly are trying to create a community, and that is reflected in our very liberal attitude about guest blogging and our open comment policy.

    But I would still defend any blogger at OJ or elsewhere who feels like they do not have the time to moderate or edit the low quality comments.  If you have worked hard on a blog post and then an anonymous commenter  throws up a rant without any reflection, it just diminishes the quality of the experience.  It is also very frustrating to experience firsthand, a bit like carefully washing your new car and then a rebellious teenager throwing mud at it just for the fun of it.  Again, we are fortunate to rarely experience that at OJ.

    There are plenty of blogs on the left (e.g., Andrew Sullivan) and the right (e.g., Lawfare) that have decided to close comments or make them difficult to access (using Facebook as a proxy for a comment section).  The market is responding favorably to that style of blogging, so who are we to judge?

    Roger Alford

  10. Response…
    Well said Ben!  “Lawfare” is a good name for it however. 
    Another controlled environment is the “American” [Executive] Journal of International Law.  It used to be an excellent and interesting Journal, but now hardly any commentary contrary to the U.S. Executive appears in the Journal.  We used to have “Agoras” with point/counter-point articles and essays — no more.  Too bad.  Everyone seems to know that the best and most interesting articles and essays are published in the many other international law journals.

  11. The question of course Roger is “what is the market?” for closed blogs with no comments.  Such blogs are carefully shaping thought space and try to give the impression of what is reasonable in thought space.  I am no longer sure of just who is left or right anymore with Bush and Obama’s actions in the national security space.
    Best,
    Ben

  12. Thanks Jordan! You are one of my heroes.  I wish these people would honor you more.
    Best,
    Ben

  13. Response…Considered expertise coupled with pedagogical conversational skill among the regular and guest contributors is the combination that keeps me reading OJ with hope and interest.  I appreciate the creative room this blog sustains, in and out of season, by encouraging experts and laypersons, alike, to nurture creative thinking spaces, engage in healthy conversation and to pursue continued, truthful inquiry.  For providing this kind of intellectually honest gift here at OJ, thank you, and best wishes in the new year.

  14. I think it’s self-regard more than cowardice.  A journalist-‘scholar’ might fear uncivil personal aspersions.  ‘Bush-lawyer’ springs to mind…. 

  15. “I draw your attention to the forthcoming book from Human Rights USA entitled INDEFENSIBLE: A Reference for Prosecuting Torture and Other Felonies Jan 2012. ”

    A link to the report is now up at the Human Rights USA website at http://www.humanrightsusa.org/index.php?option=com_content&task=view&id=80&Itemid=95 where it states:

    “This recently released report, Indefensible:  A Reference for Prosecuting Torture and Other Felonies Committed by U.S. Officials Following September 11th, serves as a practitioner’s reference addressing the domestic and international laws implicated by the actions of certain former high-ranking government officials.  The report lays the groundwork for litigation against those responsible for approving and using illegal interrogation techniques that were the official policy of the Bush Administration.
    More than a decade after the onset of the Bush Administration’s post-9/11 anti-terrorism policies, not a single torture survivor has succeeded in holding a top government official accountable in a U.S. court for the indefensible act of torture due in large part to legal maneuvering by both the Bush and Obama Administrations.  While certain actions taken by President Obama indicate his desire to break with the lawlessness characterized by the Bush Administration, he has failed to fulfill his international legal obligation to investigate these crimes of torture and other cruel, inhuman and degrading treatment.  The report is a call for action.  If accountability cannot be achieved through the courts, it becomes even more critical that the U.S. government properly investigate acts of torture either through the appointment of a Special Counsel or alternatively by Congressional enactment of a Commission of Inquiry.
    The report is the result of a multi-year collaborative effort between Human Rights USA and the International Human Rights Law Clinic at American University Washington College of Law. 
    Read the report here.  In addition, you may request a hardcopy of the report by e-mailing info [at] humanrightsusa [dot] org [dot] This e-mail address is being protected from spam bots, you need JavaScript enabled to view it   Please include “Accountability Report Request” in the subject line, as well as the appropriate return address listed in the body of the e-mail.  You may also make a request by calling (202) 296-5702. “

  16. While we’re talking comments, how about deleting the “Response…” in every commbox?

    I – a nobody – was delighted that Ben responded to an email I sent him out of the blue and I genuinely appreciated his posting something I wrote and his public response on another issue. And I thank him for his serial private engagement on a number of topics. He is a gentleman at least. But, the point here is that his work would be better if public comments were allowed. It is his loss if he forecloses that opportunity.
    Lawfare is an outlet of a Brookings-Harvard security institute – an official member of the national security apparatus. They could easily pay someone to moderate comments if they wanted to.
    Besides Ben’s elitism / control issues, I’m sure Jack Goldsmith has no desire to engage critics of his past work. He’s managed to come-off pretty clean compared to his OLC comrades. He’d just as soon let sleeping dogs lie.*
    Lawfare has published contrary content to be sure. But it has not in general engaged with it. Ben thinks it is uncouth to respond to someone else’s points in the same post. (A gentleman at most) But a reply post is rarely written. In fact, I’d wager that Ben has responded to people that he isn’t responding to more often!
    * Has anyone had a comments-allowed regular forum after working at OLC?
     

  17. Mark,

    Marty Lederman worked at OLC and blogs at Balkinization, which allows comments (although they occasionally close them for specific posts).

    Agreed about Goldsmith.  If I had written horrific memos like the one I discussed last week, I wouldn’t want public feedback, either.

  18. I put a Google News alert for Marty Lederman back when the al-Awlaki memo stuff came up and haven’t seen anything from him that allows comments since. As for Balkinization, on the front page only 4 out of 22 posts allow comments.

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