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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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  • by Doug52392 (1094585) on Saturday December 22, 2007 @10:58AM (#21790598)
    I have been watching the world literally crash these days, with all the pointelss lawusits, people being sued/arrested for no reason, etc. I have just about lost hope. Finally, at least some victory! Our constitutional rights these days are so twisted that I do not see what could happen. The Internet should be a place where people can talk about themselves and how they feel about something without the fear of legal action. But they get sued and thrown in court like a common criminal for expressing their First Amendment rights to freedom of speech. Why?
    • 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.
      • by multisync (218450)
        You are right, and I don't take issue with anything you've said. It comes down to good judges doing a good job, and ensuring subpoenas are not issued in cases where a well-connected plaintiff is merely attempting to out a whistle-blower, or discredit a critic by digging up dirt that isn't relevant to the issue the blogger is criticizing.

    • by sigzero (914876)
      There is nothing in the Constitution that guarantees anonymous anything.
      • by multisync (218450)

        There is nothing in the Constitution that guarantees anonymous anything.


        I don't think there is anything in it denying anonymity either, but it's not my constitution.

        The default should always be to protect privacy/anonymity, unless there is evidence that a crime has been committed.
    • by aussie_a (778472)
      Doug52392 is a well known pedophile in real life, I encourage everyone to please mod him down and not respond to his posts. If you also see this username on any websites targeted to children please contact the police immediately as he is breaking his parole. If we all do our duty, scum like Doug52392 will be kept away from our children and so little Sandra's suffering will not be for nothing. In your world, the above paragraph would not be actionable. Thank god your world doesn't exist outside of your hea
    • Any thoughts to the judge being the blogger in question? And if it happened to you, how you would respond, if you did not have that knowledgeable judge on the bench.
  • First amendment? (Score:5, Insightful)

    by Opportunist (166417) on Saturday December 22, 2007 @11:06AM (#21790650)
    The first amendment is afaik only about saying your mind freely. Not that you may do it anonymously.

    Now, in our times this is pretty much the same, but you know how technicalities are usually used to circumvent constitutional rights. I wouldn't deem it impossible that we'll soon see a movement that yes, you may say what you want, but we want to know who you are. Of course we won't limit your freedom to say what you want, and that van in front of your apartment is really just a pizza truck that has been delivering for days, the amount of speeding tickets you got recently just means that you had really bad luck getting caught and that your kids get worse marks now is just a result of them slacking.
    • Re: (Score:1, Insightful)

      by Anonymous Coward
      You mean like publishing a bunch of articles under the name Publius.
    • by Anonymous Coward on Saturday December 22, 2007 @11:20AM (#21790758)
      Soon be a movement? You mean that hasn't been going on since (or before) long-range wiretapping became possible thanks to satellite technology? You mean it hasn't been gathering more and more acceptance thanks to the 'war on terror'?

      I've been worried about the fact that few people worry about this for a while now... Is it the sense of powerlessness? Do people feel there's no real hope to change it? Or do they really not notice?

      Free speech carries implicit the right to speak freely even under a pseudonym -- and legally, people have the right to assume whatever name they want, as long as they are not doing it in order to commit fraud/etc. I'm not sure why it wouldn't apply if someone didn't choose to explicitly use a pseudonym -- or why, indeed, legalistically speaking, the name of the site can't be consider pseudonymistic. It's another example of how the laws of pen and paper can't be broadly applied in the digital realm.

      Weird.

      Go, Jersey Judge, go!
    • 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: (Score:3, Informative)

        by KDR_11k (778916)
        (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.
        • Re: (Score:2, Informative)

          by Anonymous Coward
          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 Trevin (570491)
          Not quite. The 10th Amendment [wikipedia.org] states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
      • by Opportunist (166417) on Saturday December 22, 2007 @11:54AM (#21790992)
        Law? Oh, don't worry. There won't be a single law that cuts into your right to say anything you want. You may say whatever you please, I don't see anything in the quote you offer that says I must not be required to identify myself to say it. I can still say anything I want.

        You can form any kind of group you want, you can say and propagate whatever you want, no problem there. Requiring someone to identify himself isn't against the 1st, as long as you don't keep him from saying it altogether.

        The only thing that will happen is that current laws will be used to harrass you. There's plenty to keep you busy.
        • Re:First amendment? (Score:5, Interesting)

          by civilizedINTENSITY (45686) on Saturday December 22, 2007 @12:25PM (#21791216)
          The real question is can you be forced (or others be forced to help,) to identify yourself if there is no suspicion of illegal activity?
          • A law that would require you to identify yourself would not violate the 1st. You can still say whatever you want.
            • by josh82 (894884)
              "A law that would require you to identify yourself would not violate the 1st. You can still say whatever you want."

              Fair enough. But by the same logic, you can still say whatever you want with a gun to your head, too.

              I think the real rub lies in what counts as an "abridgement", e.g., whether forcing you to identify yourself (or someone else to identify you) is antithetical to a freedom.
      • Re: (Score:3, Informative)

        by Anonymous Coward
        (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 appl
      • Re: (Score:1, Insightful)

        by OldSchool (725426)
        IANAL, but the US Constitution does not GRANT any rights. It notes that "We hold these TRUTHS to be self evident, that all men are CREATED equal, that they are endowded by THEIR CREATOR with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness."

        The Constitution, specifically the Bill Of Rights, PROTECTS these rights from being infringed by the government. It does not grant them.

        A minor but important point that is often overlooked.

        At least that's what they taught me in
      • Re: (Score:3, Interesting)

        by TheoMurpse (729043)

        "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.

        Surely you cannot be suggesting that the First Amendment gives me the right to practice a religion that requir

        • by deimtee (762122)

          Surely you cannot be suggesting that the First Amendment gives me the right to practice a religion that requires human sacrifice in contravention of murder statutes simply because there is no murder statute in the Constitution!

          I would read that as you are free to practise and preach whatever you want, but that no law can take any notice of any religious reasons why you did it.
          Hence, no laws against ritual sacrifice, but any murder statute would ignore the religious aspect and prosecute for the act of killing, not for the sacrement.

          Taking this into consideration, can you understand why the First Amendment right to freedom of speech isn't 100% absolute? Should I not then be allowed to brand all my crappy software "Google" with their logo? Should I not then be allowed to freely distribute any copyrighted material to anyone, since it's merely free expression? Should I not then be allowed to shout "Fire" in a crowded theater, or point a megaphone at my neighbor's house and shout through it at all hours of the day?

          All of these would be prosecuted/sued under laws that ignore "Freedom of Speech" - Fraud, Copyright Infringement (civil case unless you were selling it), Nuisance laws X2, respectively.
          As

          • As far as the law is concerned there is a difference between "infringing freedom of speech" and ignoring freedom of speech and prosecuting for some other aspect of what you are doing.

            That's where the law has gone: for example, you can't ban flag burning because of its offensive nature, but you can ban flag burning if it's part of a "no burning shit outdoors" ban to protect public safety. Legislative intent is important: if the goal is to affect free speech, it's not constitutional, but if the infringement u

    • Perhaps the 1st amendment in conjunction with the 4th amendment explicit right to due process, and the implicit 4th amendment right to privacy?

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      There has to be probable cause, at

    • Re: (Score:3, Informative)

      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

      • Thank you, I thought there was a Supreme Court ruling which had defended the right to anonymity, but I did not remember ever seeing the exact ruling or the case which it came from.
    • by Looshi (1038712)

      You're right that the first amendment says nothing about speaking anonymously.

      However, I think it is fair to say the founders had an expectation of anonymous speech when they wrote the constitution. The Federalist Papers supporting the constitution were written anonymously. The essays were all signed with the pseudonym Plubius. You had anonymous speech right out of the gate.

      Now today it is easier than ever before to write something anonymously. I can check a little box to do it on this very post. I don't

      • It's been shown time and again that the current US legislation doesn't give a rat's ass about the spirit of the constitution, as long as they don't violate the letter. And the latter only because it would be thrown out as unconstitutional before the ink dries.
        • Yeah, Just like when McCain-Feingold was shot down by the Supes.

          Oh wait.. it wasn't. Lemme fix that for you.

          It's been shown time and again that the current US legislation doesn't give a rat's ass about the spirit of the constitution, or the letter.
    • Re: (Score:3, Insightful)

      by tietokone-olmi (26595)

      The first amendment is afaik only about saying your mind freely. Not that you may do it anonymously.

      Speaking as an european, I would point out that your constitution's first amendment does not require that in order for speech to count for freedom of speech that its originator would have to be positively identifiable at all times. I'd like to warn you against taking such fundamental things according to the most restrictive interpretation possible.

      Now, freedom of speech as guaranteed by your constitution

    • by RKBA (622932)
      I can't imagine why anyone would want to publish anonymously.
      ~ Publius [wikipedia.org]
  • by DrScottyB (1206758) on Saturday December 22, 2007 @11:52AM (#21790976)
    You mean you can openly disagree with politicians and not get tased? Weird.
  • Jay: All these assholes on the Internet are calling us names because of this stupid fucking movie.
    Banky: That's what the Internet is for. Slandering others anonymously. Stopping the flick isn't gonna stop that.

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