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NJ Blogger Fights for Anonymous Free Speech
Posted by
ScuttleMonkey
on Mon Dec 03, 2007 04:20 PM
from the let's-out-people-in-witsec-next dept.
from the let's-out-people-in-witsec-next dept.
Ponca City, We Love You writes "A New Jersey blogger is fighting for his right to blog anonymously and the Electronic Frontier Foundation (EFF) has asked a Superior Court judge in New Jersey to preserve the blogger's free speech rights as he faces legal threats from local government officials. On June 13, 2007, the New Jersey Township of Manalapan filed a malpractice suit against its former attorney Stuart Moskovitz, alleging misconduct regarding the Township's purchase of polluted land in 2005. The decision to file suit was met by a lively debate in the regional press and among local bloggers. One blogger who was particularly critical of the Township was datruthsquad. Attorneys for the Township issued a subpoena to Google demanding that the identity of this anonymous critic be turned over, along with datruthsquad's contact information, blog drafts, e-mails, and 'any and all information related to the blog.' Despite repeated requests from EFF to explain how this could be anything other than an attempt to out a vocal critic, attorneys for the Township have refused to withdraw the subpoena and informed EFF that it can go to court to object to the subpoena. In a motion to quash the subpoena, EFF has asked the court to block the township [PDF] in its attempt to uncover the identity of 'daTruthSquad' and allow the blogger to continue to write about this or any other issue without being forced to identity him or herself."
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You are free to say anything you want (Score:4, Insightful)
Re:You are free to say anything you want (Score:5, Insightful)
Were the things I said injurious to the character and reputation of a person/organization? Were the things I said untrue?
If the answer to either of those is no you can take your accountability and go straight to hell.
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Re:You are free to say anything you want (Score:5, Informative)
The truth is an absolute defense to defamation.
You have the other part wrong. The burden is on the plaintiff to show that there was malice, not on the defendant to show there wasn't. And that is only if the person defamed is a public figure. A city counsel person should be a public figure. Normal people who are defamed usually don't have to show malice.
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Prior restraint and pamphleteering (Score:5, Informative)
The closest analog here I think is the issue of anonymous Pamphleteering. As I recall the common law is that you can do so anonymously. But there's also no right to that anonymity. That is, the Government or whom ever is not prevented from piercing your anonymity if they can.
Additionally there's the common law of prior restraint. With few exceptions, the government cannot act to prevent you from saying something that would be illegal or uncivil for you to say.
Thus the desire to prevent you from speaking something can't be ground for the government to require non-anonymous speech.
On the other hand the soapboxes we use to connect to the web are all owned by entitites. Those entitities can set up their own rules and policies. And one of those could be non anaoymous free speech.
I suppose other countries--not the USA-- may have different rules. Things may be different in china and stockholm.
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Re:You are free to say anything you want (Score:5, Funny)
I'm not so sure. I think I could be persuaded to interpret that literally.
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Can you feel it? (Score:4, Interesting)
Re:Can you feel it? (Score:5, Insightful)
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Re:Can you feel it? (Score:5, Insightful)
"If ye love wealth greater than liberty, the tranquility of servitude greater than the animating contest for freedom, go home from us in peace. We seek not your counsel, nor your arms. Crouch down and lick the hand that feeds you; May your chains set lightly upon you, and may posterity forget that ye were our countrymen." -- Samuel Adams
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Re:Can you feel it? (Score:5, Insightful)
This is hardly the first time in US history that local officials have bullied their way into a legal mess, and I'm sure it won't be the last. The difference is that the Internet makes it much easier for the EFF and other advocacy groups to publicize local abuses that in other eras would go completely unnoticed. The good news is that the court will resolve the dispute between EFF and the government according to our laws and constitution; we have a system of checks so that courts can stop overzealous government from infringing on individual rights. The court is working exactly as it is supposed to -- both sides are presenting their arguments and explaining why their actions are or are not legal.
If you don't remember, the free press in this country has always been in tension with the demands of government. It's a constant back-and-forth that over time has led to a reasonably stable balance of protecting individual rights. The examples go very far back: In 1798 (yes, "seventeen-hundred and ninety-eight") the Alien and Sedition Acts [wikipedia.org] made it illegal to criticize the government, on pain of criminal prosecution. Lincoln arrested three newspaper editors for publishing stories he didn't like [wikipedia.org] (two for publishing the story and one because he was in the wrong place at the wrong time) and suspended publication of the same papers for two days. The Sedition Act of 1918 [wikipedia.org] made it criminal to criticize the government during World War I (repealed 1921). The list goes on and on.
National coverage of these issues is good, and the legal system is functioning as it should. One side is demanding more than the legal system can support and the EFF is properly standing up in a fair proceeding to stop it. The right answer isn't to leave the country, but to recognize that this is part of a long back-and-forth over rights that is an important part of American history. Have a sense of proportionality and your urge to flee will lessen. It's important that EFF fight the good fight here, but the fact that we're hearing about the story is a good sign -- it means the press is still doing its job. Anyway, you can do far more good here than in the vast frozen tundra of the far north.
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Re:Can you feel it? (Score:4, Informative)
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Re:Can you feel it? (Score:5, Interesting)
What's amusing is that you honestly appear to think you're not an edge case, and that most graduates should be able to put aside $50,000 a year in savings. Apparently you believe that across the board, given a roughly twenty per cent tax rate, that the average wage of a college graduate is bearing in on $100,000.
Wow.
Really?
Let's take a wee peek at MIT. Hardly a bottom of the barrel college, and bear in mind they only offer figures from 2003-2005. In 2003, of 115 four year graduates surveyed, not one made more than $94,000. The median was $54,000. 2004, still, no-one had topped a $100,000 salary, though the median climbed slightly. In 2005 a MIT graduate could expect to make $59,000 their first year out of college.
And yet here you are, lambasting people for not being able to save $50,000 their first year out of college? I'm impressed.
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Re:Can you feel it? (Score:4, Insightful)
maybe nothing against anonymity, but it could be closely related to search and seizure of "digital papers"
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Re:Can you feel it? (Score:5, Insightful)
You read the B of R the wrong way. The government can't go after you because the Constitution doesn't give it the power to search digital works. The BoR only is examples of your rights, not a sole enumeration of them.
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The Constitution describes GOVERNMENT's power. (Score:5, Insightful)
Here's a free clue.
The Constitution is not about listing the "Freedoms" a citizen has.
The People have ALL the Freedoms. Inherently.
The Constitution defines under what conditions the government can infringe upon those Freedoms.
You have it 180 degrees BACKWARDS.
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Re:The Constitution describes GOVERNMENT's power. (Score:5, Insightful)
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?
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Re:Can you feel it? (Score:5, Insightful)
Hey. Fuck you. You're the prime example of the idiotic reasoning that causes this problem in the first place!
Here's a newsflash: the Constitution does not enumerate all freedoms. It merely reiterates a select few of them!
Noticing that something isn't specifically prohibited by the Constitution doesn't mean the Federal government can do it; it just means it's not one of the particular examples Jefferson et. al. chose to give. On the contrary, the Federal government can do only those things which it is specifically allowed to do, because everything else -- everything else -- was reserved to the States or to the People!
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Re:Can you feel it? (Score:5, Insightful)
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This one matters... (Score:5, Insightful)
That said, with both the EFF and Google being against the subpoena, I don't really think that this stands a snowflake's chance in hell of surviving the legal challenges. And if the Superior Court judge gets it wrong, I would still see this going all the way to SCOTUS for resolution before the blogger would be outed.
That was dumb... (Score:5, Interesting)
Sure, if the blogger turns out to be a public employee of said township, he/she would prolly be fired. Then again, the nanosecond after they did such a thing, esp. after outing him/her in such a public manner, would likely put themselves at substantial legal risk.
But the main point for the township being stupid by doing it is this: what was once a thing that could be scoffed at as 'some guy on the Internet who knows nothing about this'... now has credence, credibility, and a firm aura of truth; all of which has now been granted to him/her/it by the township's idiot legal team.
Personally, if Congress wants to do something useful (well...), they could work on something legislative-like that would prevent government-as-plaintiff in a civil suit from ever being allowed to out any anonymous posting, publication, or what-have-you.
Man - some people just can't grok the concept of not using every tool they have for a difficult problem, simply because they're all there and sitting in the toolbox.
Re:That was dumb... (Score:4, Interesting)
The township can make the guy's life hell-- can make his friend's lives hell so he loses his friends (assuming it is a guy).
Ben Franklin would have been outed very early in his career under this standard.
Parent
Who do they think they are? (Score:5, Insightful)
invasive and non-invasive postings (Score:4, Interesting)
Par for the course (Score:4, Insightful)
Welcome to the Garden State. Never let it be said local officials were ever too happy about having their judgment questioned. When it comes to mayors, school boards, and township committees, N.J. is a hotbed for corruption, and whenever someone calls someone else out, there's always some under-handed move by local government to quash the opposition. The sad part is, despite his campaign promises, out illustrious governor hasn't done a damned thing about political corruption on any level in New Jersey.
I frankly don't think this subpoena has a chance in hell of surviving, but I do feel it's going to have to go pretty far up the chain before it gets choked off. NJ just has the kind of effect.
DON'T GET HYSTERICAL : Other Side of the Story (Score:5, Informative)
David Weeks, an attorney representing Manalapan, says the foundation is twisting a routine legal request in a local lawsuit into a First Amendment case.
"We're not asking to interfere with anyone's right to speak," Weeks said.
Instead, Manalapan's attorneys are simply asking Google to establish whether Moskovitz was telling the truth when he denied he was the blogger in court papers related to the land deal lawsuit.
"I don't know one way or the other if it's him," Weeks said. "It could be him."
So, some facts:
a) The guy getting sued is being sued because he didn't file EPA paperwork on a land deal. In NJ, that's pretty dumb, so he could be guilty of malpractice.
b) The guy getting sued is actually the former mayor of the same county that is suing him.
c) Yes, NJ is crooked.
However, with that said, if DaTruthSquad is the former mayor, and he is posting on about stuff, he could be violating various other things, compromising a sealed case, who knows, and therefor, the government -does- have an interest in knowing if it is him.
Note that the point is, Google isn't getting sued to see -who- DaTruthSquad is. Google is getting sued to reveal if the guy is the former mayor. Not to say that everyone is angelic, but, in all probability, DaTruthSquad is probably a crook himself.
As Bob Dylan wrote: "In Jersey everything's legal, as long as you don't get caught."
Re:Freedom of Spee... ah Responsibility (Score:5, Informative)
It should be noted that America's laws re: libel and slander are much more permissive than those in Britain or most formerly British colonies.
This is most certainly political speech, and anonymity is important to preserving free speech when fear of retribution is a factor (Talley v. California, 362 U.S. 60, 65 (1960).
See Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756, 771 (N.J. App.Div. 2001) for establishment of criteria underwhich the state of NJ can/should overturn the right of anonymity in favor of the defamation claims.
It's also important to note that the NJ Constitution is even more protective of free speech rights than the US Constitution -- the state (and local governments) have much less right to abridge free speech in NJ.
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