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New Jersey Judge Shields Anonymous Blogger 61

Posted by Soulskill
from the keeping-hidden-agendas-hidden dept.
netbuzz brings us an update to a case we discussed earlier this month: "In a widely watched free-speech case, a New Jersey judge has upheld a blogger's right to criticize county officials anonymously. The contention of those officials was that the blogger is actually a former mayor/attorney being sued by the local government for malpractice. This comes less than a month after the Electronic Frontier Foundation began their legal efforts to shield the blogger, claiming that the subpoena for Google to release his identity was 'part of an unrelated and unauthorized campaign to embarrass or otherwise outmaneuver the Defendant.' Score one for the First Amendment."
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New Jersey Judge Shields Anonymous Blogger

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  • Re:First amendment? (Score:5, Informative)

    by wave_man07 (1198863) on Saturday December 22, 2007 @11:30AM (#21790814)
    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." I believe you are explicitly incorrect. The first amendment clearly says that no law may be passed abridging freedom of speech. Abridging is an interesting word. I like to think of it as very similar to encroaching. The word implies a "complete" right, absolute freedom of speech. No law of Congress (what about states?, by implication they also cannot infringe the national constitution) can impair that right. So if it is a complete right, it is everything you can imagine. And you should! So if you speak anonymously, do not ask if the Constitution gives you that right. It does. Any law that forces you to identify yourself in relation to your speech, if you have chosen to speak anonymously, is inherently un-constitutional. This does not say that you are not responsible for covering your own tracks. This does not say it is unlawful to try to find out who said something. You are responsible for defending your own anonymity by your own definition of "best practice". Free speech is wonderful, complicated, and sometimes sucky (when it is millions of dollars of swift-boat drivel hitting your frontal lobe for example). When you are being assaulted by K-Street's version of free speech, say a little mantra to yourself, thank the framers that even idiots and assholes are consecrated in the First Amendment.
  • Re:First amendment? (Score:3, Informative)

    by KDR_11k (778916) on Saturday December 22, 2007 @11:44AM (#21790930)
    (what about states?, by implication they also cannot infringe the national constitution)

    If we go by what's written, the first amendment only limits federal powers and a later amendment (I don't remember those numbers) points out that what the federal govt can't do is left up to the states.
  • by JimDaGeek (983925) on Saturday December 22, 2007 @12:24PM (#21791204)
    Well, if he/she is a blogger it would be libel, not slander. Libel is the written act of defamation, slander, the oral act of defamation. ;-)
  • Re:First amendment? (Score:3, Informative)

    by Anonymous Coward on Saturday December 22, 2007 @12:27PM (#21791222)
    (what about states?, by implication they also cannot infringe the national constitution)

    "At the present, the Supreme Court has held that the Due Process Clause [of the 14th Amendment] incorporates all of the substantive protections of the First, Fourth, Sixth, and Eighth Amendments and all of the Fifth Amendment other than the requirement that any criminal prosecution must follow a grand jury indictment..."http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution [wikipedia.org]

    So this should apply to state governments also
  • Re:First amendment? (Score:2, Informative)

    by Anonymous Coward on Saturday December 22, 2007 @12:27PM (#21791224)
    Fourteenth amendment:

    Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
  • Re:First amendment? (Score:5, Informative)

    by karmatic (776420) on Saturday December 22, 2007 @12:27PM (#21791226)
    If we go by what's written, the first amendment only limits federal powers and a later amendment (I don't remember those numbers) points out that what the federal govt can't do is left up to the states.

    That's the reason for amendment 14:

    Section 1. ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


    They tend to ignore this for the second, fourth, and fifth amendments, but the courts tend to apply it to the first with regards to the states.
  • by AHumbleOpinion (546848) on Saturday December 22, 2007 @01:15PM (#21791570) Homepage
    ... with all the pointelss lawusits ... The Internet should be a place where people can talk about themselves and how they feel about something without the fear of legal action.

    The first amendment does not prevent lawsuits, it merely allows you to publish. You are still liable for what you publish, the laws regarding defamation, libel, slander, etc still apply. The responsibilities and liabilities that apply to paper and ink should apply to the internet as well. When there is sufficient evidence that such a crime/tort has been committed the court should require an ISP to provide information. The issue in this case is really whether such a crime/tort took place. Criticizing a government official for government actions is very different from those of a private person.
  • Re:First amendment? (Score:3, Informative)

    by SwashbucklingCowboy (727629) on Saturday December 22, 2007 @01:56PM (#21791824)

    The SCOTUS ruled 7-2 in McIntyre v. Ohio Elections Commission [justia.com]:

    Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation-and their ideas from suppression-at the hand of an intolerant society. 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.

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