Let’s talk blogging

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

[Justice Stevens, providing the majority opinion of the U.S. Supreme Court, McIntyre v Ohio Elections Commission.]

In the past few weeks, I have received numerous threats of lawsuits being filed in order to determine my off-line identity.

Why are they so bound and determined to discover my identity? For purposes of silencing criticism and potentially exacting retribution.

Some people don’t like bloggers who use pseudonyms (aliases) or those who blog anonymously (using no name at all). Regardless of what anyone thinks about anonymous or pseudonymous speech, it is protected by the First Amendment.

It has also played an important role in the history of our country. The Founding Fathers used pseudonyms for the publication of their revolutionary arguments, such as in The Federalist Papers. Alexander Hamilton, James Madison and John Jay wrote under the pseudonym, “Publius”.

In McIntyre v. Ohio Elections Commission, U.S. Supreme Court Justice Clarence Thomas offers several other examples of the role anonymous or pseudonymous speech has played in history to support the intent of the First Amendment protections of speech.

More commonly known, Samuel L. Clemens wrote under the pseudonym “Mark Twain”, challenging culture in a way that has gone well beyond his generation.

Recently, cases have been brought against anonymous bloggers and anonymous pamphleteers. In many of the cases, those who are being criticized or exposed go to great lengths to silence or discredit the source of the information. However, when those tactics fail — as those that are trying against this blog — they turn to threats of legal action, or to initiating legal action in an attempt to at least discover the identity of the person so that they may take more direct action — even when they know their case will not stand up in court.

My own experience on the receiving end of these tactics is one of the very reasons why I chose — and continue — to write under a pseudonym. What I write about is not popular with those who have had something of a stranglehold on Carpentersville for the past decade or longer. Being able to stay in power is not something that comes easily. So, if anything were to threaten that, it would likely not be taken lightly. This is the motive that compels me to write under a pseudonym.

So, will the law allow discovery of a blogger’s identity through the mere filing of a lawsuit? The short answer is no.

In the case of public figures — which those who Carpentersville Action Network addresses are — the bar for a defamation suit is high. Recent cases such as Doe v Cahill have set forth that a summary judgment standard, not a good faith standard, be applied which “appropriately balances one person’s right to speak anonymously against another person’s right to protect his reputation.”

In Doe v Cahill, the Court found that the plaintiff, Patrick Cahill, a city councilman of Smyrna, Delaware failed to meet the standards required by the First Amendment to unmask an anonymous critic. Summary judgment is a high standard, particularly in cases of anonymous speech because unmasking an anonymous critic is on par with the court finding in favor of the one seeking the person’s identity.

Just before Christmas, a New Jersey Court quashed an attempt to reveal the identity of an anonymous blogger who was critical of county officials, and whom they say libeled them.

On December 21, 2007, Superior Court Judge Terence Flynn granted EFF’s motion to quash the Township’s September 26th subpoena seeking the identity of datruthsquad and denied a motion by the township to authorize future subpoenas, finding that the subpoena amounted to “an unjust infringement on the blogger’s First Amendment rights” and that the blogger “has a right not to be drawn into the litigation.”

Bloggers do have rights to free and anonymous speech granted by the First Amendment. Of course, that does not mean that a blogger can say anything he/she wants. But, the Courts are looking seriously at the new frontier of the Internet, particularly in the case of political speech.

Protections for anonymous speech are vital to democratic discourse.

Companies that provide Internet access, host blogs, etc are required by federal law to provide notice when a request is made for an individual’s data. Failure to do so could result in a suit being filed back against the ISP or other similar organization that could result in payment of damages, in addition to legal fees. So, it is in the best interest of these companies to notify subscribers or users that their data has been requested, particularly with the decisions that continue to be handed down regarding the rights of those publishing and discussing information on the Internet.

Bloggers do not have free reign, however. They must be responsible in the information that they publish (as this site has worked diligently to do — even removing a posting when additional backing information that was promised was not received) — although there is also protection from prosecution for statements made by others (see Section 230).

Quoting again from the decision of McIntyre v Ohio Elections Commission …

The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.

Blogging and libel/defamation

Last week the Daily Herald published an editorial related to a libel lawsuit filed by a court reporting firm against a court reporter who started a blog to complain about not being paid by the firm. The specific facts of that case will apparently be worked out in court, but I think there are a few things worth commenting on from the editorial, for the sake of some education.

The editorial begins:

Those in the “old” media, more than a little familiar with the intricacies of libel and slander law, knew it was bound to happen. A blogger has been sued for libel in Kane County’s 16th Circuit Court.

Perhaps this is a first in Kane County, but its nothing new nationwide. Bloggers have been sued, or threatened with suit, many times before. Only an extremely small number have worked or won.

Despite the apparent belief that those using the Internet can say anything without consequence, those with more experience knew individuals would tolerate the besmirching of their names and reputations for only so long before putting up a fight.

A large number of cases filed against bloggers typically have the goal of silencing their critics; of abridging First Amendment rights. And courts have regularly sided with bloggers in these cases.

While it is true that those who feel that they can say anything on the Internet are wrong, there seems to be a great amount of levity given to those who speak their opinion, and whether the target of criticism is a public or private person. This goes for “old media” as well as “new media” such as blogs. (In fact, the Supreme Court has ruled that “in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals and organizations engaged in the same activities.”)

Political speech is given the most leeway, so as to not suppress freedom of expression. That does not mean that someone can spread something that is “verifiably false”, such as saying that someone is guilty of a crime when they are not. But, an example from a real case will give some info as to how much can be tolerated:

A statement that the plaintiff is a “Dumb Ass,” even first among “Dumb Asses,” communicates no factual proposition susceptible of proof or refutation. It is true that “dumb” by itself can convey the relatively concrete meaning “lacking in intelligence.” Even so, depending on context, it may convey a lack less of objectively assayable mental function than of such imponderable and debatable virtues as judgment or wisdom. Here defendant did not use “dumb” in isolation, but as part of the idiomatic phrase, “dumb ass.” When applied to a whole human being, the term “ass” is a general expression of contempt essentially devoid of factual content. Adding the word “dumb” merely converts “contemptible person” to “contemptible fool.” Plaintiffs were justifiably insulted by this epithet, but they failed entirely to show how it could be found to convey a provable factual proposition. … If the meaning conveyed cannot by its nature be proved false, it cannot support a libel claim.

This California case also rejected a claim that the defendant linked the plaintiffs’ names to certain web addresses with objectionable addresses (i.e. http://www.satan.com), noting “merely linking a plaintiff’s name to the word “satan” conveys nothing more than the author’s opinion that there is something devilish or evil about the plaintiff.”

So, what was my “take away” from the editorial? That folks like me were being given a little bit of “notice” to watch it.

But, I write about public figures, backing up my conclusions with as much information as a reasonable person would expect to detail. A lawsuit filed against this blog would require the plaintiff to prove “actual malice”, meaning that a “verifiable fact” was posted that was reasonably considered to be untrue. Most legal opinions consulted have noted that is something difficult for a plaintiff to prove.  Still, I make every attempt to provide legitimate reason for the opinions I hold and express on this blog.

Something else interesting to consider is anonymity. Cases have been brought in order to reveal the identity of an anonymous blogger.

The Supreme Court has repeatedly upheld the First Amendment right to speak anonymously: “author is generally free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be…the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” (McIntyre v. Ohio Elections Comm)

Procedures and motions are often filed to allow anonymous bloggers to remain anonymous until the lawsuit is decided, or a summary judgment is entered that considers the likelihood that the case will result in a final judgment in favor of the plaintiff.

Yes, bloggers need to be responsible and understand the law and their boundaries. But, bloggers also need to know their rights, and SLAPP lawsuits used to scare away criticism are often dealt with collectively in the blogosphere, having even caused those who brought the suits to drop them.

Guest: What’s in a name?

I received the following as a “Guest blogger” submission from Peter Pimkus:

There is all this curiosity about names: Who are the anonymous posters? What, however, does a name tell us? Do we know the ideas a person has from their name? Do we know their profession or their education? Do we know their expereices in life or what their interests are?

Brown, Patel, Pennington, Harrington, Castro, Emmanual, Santiago, Smith, Capone, Sosa, Clemente, McNeil, Schultz, Kowalski, Carr, Stoneham, Rosser, Prescott Bush, George Bush, etc. What pictures come into our heads as we read these names? And do we see who they are or just the images that the names create from our own experiences? Is the name male or female? Do they have white or dark skin? What is their hair color or are they bald, old, young, single, married or dead or alive?

Often, from a name we think we know their heritage, or their race, or even their religion. From a name, we may think we know if they are rich or poor. We may think we can tell their neighborhood or their intelligence. We may even think we KNOW them because we know their name. I hear many say, oh they must be German, or Italian or Irish, or Mexican, or Jewish or I know the family or I know the wife or brother or mother or sister…So, what does this tell us about THEM?

So, to those that are more interested in thinking they know me, I say, listen to what I say, to the thoughts, concerns, ideas, or questions I have, and then you MAY be more accurate in knowing me but even then, I doubt it…

Attacks on people are used to silence them and while that is wrong, we see it used even at the highest levels of our government. We see the “explanation” for the comments made by people as only being because of who they are and then no answer is given, just the inference that no answer is needed because of who they are. Or, because someone said something, they’re labeled as some kind of kook and that is how they are “perceived” or viewed for anything they ever say again.

If you like George Bush and he said something, would you accept it more willingly and universally than if you didn’t like him? Would either be correct? Should questions be asked or is the information all that you need to “know” the facts? I say that assumptions lead to misunderstanding and do a disservice to everyone. Yet, that is what is being asked here. To let us judge you because of who you are and not by what you say or the questions you ask is what is wrong with society. We need to listen to, question, and respect each other for who we really are.

What is this blog?

Blogger.com has one of the better definitions I’ve seen about what a blog is:

A personal diary. A daily pulpit. A collaborative space. A political soapbox. A breaking-news outlet. A collection of links. Your own private thoughts. Memos to the world.

At times, Carpentersville Action Network will be one or more of these.  Most often, it will be “a daily pulpit” or “political soapbox” or “memos to the world”.  But, most of you already know that of this site.  Still, I thought it needed to be said for clarification.

For the most part, Carpentersville Action Network will be editorial in nature.  It has been, and will be, my view of the world — particularly on politics and government of Carpentersville, and at times the surrounding area.

Yet, because a blog most often represents more informal, off-the-cuff remarks as opposed to an extensive treatise or dissertation on the subject, readers are encouraged to provide information in the comments (or comboxes) that may not have been considered in the original posting.  It’s that to which I refer in yesterday’s “Back to Reality” posting.

Since starting this blog, I have tried to make it a point to provide facts, links or other information to back up the opinions and statements that I make.  I feel it is important to do so to provide readers the reasons why I hold the opinion or position I do about an issue, the position another person has taken on an issue, or someone’s actions or statements.

Some have taken issue with the fact that I have provided information labeled “negative” and felt that I was “bashing” some trustees.  Those folks are certainly entitled to their opinion.  I do feel, though, that the information and facts contained in those entries are important for people to know, so occasionally posts of a similar nature will be presented; I’m confident that those postings speak for themselves against the charges.

So, that’s a bit more insight into the philosophy and direction of this blog.

Thought I’d share some stats with you as well.  This is the end of the second full month of being at WordPress.com.  Traffic increased about 75% over last month, with nearly 7,000 views.  Many more people have found this blog since the lawsuit was filed, with daily traffic going from about 200-250 views per day up to around 500 views a day (which has remained consistent).  In fact, one week’s worth of traffic two weeks ago was around 1,000; traffic this week was more than 3,000.   Since starting the blog, there have been a bit more than 500 total comments posted by about two dozen or so different people, on nearly 125 post.  So, many more people are reading than are writing.

I’d also encourage those of you who have longer postings, particularly on relevant topics that are unrelated to current posts, to email them to me for inclusion in as a main posting as a guest blogger.

Back to reality

A lot of opinions have been shared here over the past few weeks, and I’m appreciative of even those from outside the Village of Carpentersville who have contributed. But, one of the things that I wanted to have this blog be from the outset was an exchange of facts and information.

I, myself, have gotten caught up in just the regular back and forth banter that sharing opinions can invite.

I think we can do better, however.

I’d really like to see this be a vehicle of information that Village staff, residents and Board can use to help them make better decisions — to break the cycle that has been too long a staple of Carpentersville politics and government.

This blog has taken the time to show that those on the Board who are often making the loudest calls for “civility” or “respect” and whatnot, are actually some of the worst offenders. I think we’re all on a level playing field now. Hopefully everyone will step off their pedestals (except me, of course! 🙂 ) and come back down to listen to the fact and information that citizens can provide.

So, can we stop the chit-chat and work together to help our Village government with a plan that can be workable for the entire community?