Monkeying around with free speech

Supporters of Sigwalt and Co run an insignificant little website (mostly filled with full text copy and paste — usually a violation of copyright fair use — of news stories they like that appear in local newspapers from across the country). Every now and they, they post a little commentary or use it to publish police reports they get from their friends on the Board.

Two recent commentaries are really telling of both their lack of attention to detail, and their foolishness.

The first is just a post linking to a Daily Herald article questioning whether the “monkey business” with Linda Ramirez-Sliwinski was over. In that post they say “Ramirez-Sliwinski has said she was worried the children would fall out of the tree.” Below that statement are two pictures of actual monkeys sitting in trees.

Are we to assume that the pictures of the monkeys are meant to represent the two boys?! That seems pretty over-the-line to me! (I’m not sure, but I think those supporters are the same ones who are part of the Minutemen who have been categorized officially as a “hate group”).

Anyway, on to the next article/commentary.

“Richard” links to an article that appeared yesterday in the Janesville Gazette. He says that “Janesville WI, has exposed a blogger who has been critical of Janesville’s local Government stating they “just wanted to talk to him”.

But, the blogger — who writes on “Free Whitewater” — has not been “exposed”; nor was he writing about Janesville, WI. He continues to exercise his right to free and anonymous speech, critical of actions of city officials in Whitewater, WI.

Details are important, folks.

“Richard” goes on to make the recommendation that “[t]his is something Carpentersville can do.”

What? Waste more taxpayer money?

The main story reports that Whitewater police spent six months trying to determine the identity of the blogger … to no avail. And, it is admitted that he is speaking lawfully.

Anonymous political speech is protected by the First Amendment, and is at the heart of this country’s foundation.

“Richard” was critical of the 2-cent gas tax; but seems to have no problem with taxpayer dollars being spent to silence criticism that could more easily be quelled by members of the Board doing the right thing; doing what they were elected to do.

Just more of that same kind of garbage and threats to silence this blog so that Sigwalt and Co can go back to doing business behind closed doors, without accountability, or the input of all the People of Carpentersville.

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.