NJ Blogger Fights for Anonymous Free Speech

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."

You are free to say anything you want

But if you are slanderous or libelous, you should be held accountable.

Re:

Public officials should not be protected in this way. They protect themselves with "Parliamentary Privilege", so they should not have protection from others.

In New Jersey, being identified as the person who outed corrupt officials could be lethal (mob).

Re:You are free to say anything you want

Indeed...I don't think it should be considered a tort if Lewis Black calls George Bush an asshole.

And datruthsquad doesn't seem at all libelous or slanderous (from what I read on his blog), so it sounds like a vindictive city council. Which, needless to say, is bullshit.

Re:You are free to say anything you want

Indeed...I don't think it should be considered a tort if Lewis Black calls George Bush an asshole.

According to the Supreme Court decision in Falwell v. Flynt, that wouldn't be susceptible to libel because no one would interpret that literally to mean that George Bush is actually a sphincter. However, if you say that George Bush has embezzled a billion dollars, that would be libel if it's not true.

That's not to weigh in on this case, but there's some delineation between obvious insults and actual slander.

Re:You are free to say anything you want

no one would interpret that literally to mean that George Bush is actually a sphincter.

I'm not so sure. I think I could be persuaded to interpret that literally.

Re:You are free to say anything you want

Ok, but before you get to dig through all of my personal information and destroy my anonymity you have to prove libel occurred.

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.

Re:

If you don't turn up to court to defend your writing against libel, if wouldn't be terribly difficult for a court to find most things injurious to the character and reputation of a person/organization. The paradox is that without a defence, you're not lik

Re:

IANAL.
Do you have to be present in the courtroom yourself, or can your attorney represent you without your actual presence being required in this type of suit?
Would a judge not see through their attempt to forcibly his/her anonymity by getting him to sho

Re:You are free to say anything you want

IAAL. But if anyone takes this as legal advice you're on crack.

The issue here is the subpoena is aimed at Google, not the anonymous person. I know in the federal courts a party can't object to a subpoena issued to a third party, unless the former has some sort of private right in the information/documents sought. In this case it might be, I don't know what any contract or license says regarding google's privacy policy. But in most places it would be up to Google to object to the subpoena, not the individual.

Re:

destroy my anonymity you have to prove libel occurred.

IANAL

You have to prove more than just libel...
you have to prove that there was no malice in the intention, that you were not presenting an opinion (that you were presenting your statements as pure

Re:You are free to say anything you want

IAAL, but not in New Jersey. This is a general synopsis, not specific to any state. Check with a lawyer to determine your own situation. Usually....

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.

Prior restraint and pamphleteering

But if you are slanderous or libelous, you should be held accountable.

I agree.
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.

Re:You are free to say anything you want

But if you are slanderous or libelous, you should be held accountable.

The problem if you get rid of the ability of slandering while anonymous you also remove the ability to tell the truth while being anonymous.

Throughout western history the ability to publish works anonymous has brought about great social changes during great repression by central authority. Eramus [wikipedia.org] was often thought to have written works criticizing the Pope for his militant ways during a time when such texts would result in torture and/or burning at the stake.

Many of the Founding Fathers wrote works with pseudonyms in order to escape persecution from British authorities. In Eastern Europe during Soviet Occupation, anonymous pamphlets, shortwave radio broadcasts, and later fax machines were the only way to speak out against the repression.

Libel and slander are a bad thing, but they are small price to pay for having anonymity that lets you speak the truth when things are really that bad but you fear for your life or your family.

Can you feel it?

First they can bully their way through to getting a critics name. Next they won't have to bully because it'll become common practice. Its sad... can anyone else feel it? One by one our freedoms are being taken away, and the majority of the American populace is too busy watching who is going to be the next American Idol or seeing who is Dancing with the Stars to give two shits. Its pathetic. This apathy and ignorance is probobly the biggest slap to the face to the founders of this country, even moreso than the current administrations' abuses of the constitution. If there are any fine, foxy Canadian ladies out there interested in adopting a cynical geek from the states, send me a PM, I can't stand living here anymore.

Re:Can you feel it?

You are being just as bad as the apathetic by taking on a cut and run mentality. I'm sure the founders of this country would hate you even more for being aware of the problems and not trying to get them solved. It's one thing to be ignorant of issues and quite another to know the issues and turn away.

Re:Can you feel it?

Specifically, they would have said:

"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

Re:

I think you where trying to get across the point of a chilling effect [wikipedia.org] but you lost me half way through your little diatribe...

Re:Can you feel it?

This apathy and ignorance is probably the biggest slap to the face to the founders of this country, even moreso than the current administrations' abuses of the constitution.

Yup. And any time we "refuse to discuss politics because it's stupid or biased or subjective," or claim that "all politicians are crooks," "nothing is done right in Washington" we add to that apathy, and turn more fully towards a self-fulfilling prophecy.

Everyone telling you that any whole party in Washington is a cadre of crooks is, in fact, a crook trying to get you to surrender your political power. There are a few crooks, quite a few, but on the whole, many more of them do just as we ask them to, and their best despite that. We have the government that meets our superficial apathetic attitudes towards all things political.

(*gets on soapbox*)

My fellow Americans, do what you do best. Follow the money. There's several trillion dollars per annum tied up in politics, and all that money equals vast power. If we want our country back, we need to put politics back on the table, and drop this 1960's attitude that politics are for weenies and crooks. Politics are important and it is our civic duty to discuss the "State of the Union." All the corporations with lobbyists at Washington know this. We don't bother, because discussions about politics are "unsavory" and politicians are "worthless."

The hippies were wrong. All the governments they formed have faded, or been incorporated. This huge government is still getting larger, and it is critical that its people demand its service.

Sure, we might get into fist fights over it at a party, but everyone needs to put politics back on the table. Now. Fist fights be damned.

--
Toro

Re:Can you feel it?

I can't stand living here anymore.

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.

Re:

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them sh

Re:Can you feel it?

Hmm, an uneducated answer. See, its hard to get citizenship elsewhere when you're massively in debt. However, there are very few uneducated jobs available in the US thanks to Clinton's push to have them eliminated. This leaves people no choice but to go to college, which for most people means tens of thousands of dollars in debt. This is my situation. So, as much as I would like to just renounce it, it isn't that easy (unless of course you're a troll who has nothing to really add to a conversation).

Re:

Hmm, an uneducated answer. See, its hard to get citizenship elsewhere when you're massively in debt.

Or when you have utterly no marketable skills and would be a drain on the economy of any country you moved to.

However, there are very few uneducated jobs available in the US thanks to Clinton's push to have them eliminated.

There are plenty of uneducated jobs available, at low salaries of course unless you have connections. Oh wait do you mean well paying, non-physi

Re:

1) Did you go to college in the U.S.? and 2) Did you pay for your college education out of your own pocket?

Yup and mostly, financial aid paid most of it and a scholarship covered many odd expenses. I think in the end if not for the scholarship I'd have paid $30k or so for the whole thing. I worked summers, of course, to pay for some it.

If the answer to either is "no," then I'd say you probably don't really know what you're saying. $30-50K is about average for a college education from a 4-year accredited private institution these days.

Okay, I could easily pa

Re:Can you feel it?

Okay, I could easily pay off $30-$50k within 1 year of graduation if I needed to as that is (more or less) how much I put into saving within one year of graduation.

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.

Re:Can you feel it?

Amendment 4 - Search and Seizure 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.

maybe nothing against anonymity, but it could be closely related to search and seizure of "digital papers"

Re:Can you feel it?

maybe nothing against anonymity, but it could be closely related to search and seizure of "digital papers"

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.

The Constitution describes GOVERNMENT's power.

What freedoms are lost? I've scoured the Constitution and Right to Anonymity is not listed there.

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.

Re:The Constitution describes GOVERNMENT's power.

Marbury v. Madison

[The constitution] organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

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?

Re:Can you feel it?

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!

Re:

As said above, there is no explicit right to anonymity, but I think there's a definitely a case for one, and one should be implicit.

The original post bitched that all of our rights were being stripped away. Personally, and maybe I'm wrong here, I never kn

Re:

First they came for the Jews and I did not speak out because I was not a Jew. Then they came for the Communists and I did not speak out because I was not a Communist. Then they came for the trade unionists and I did not speak out because I was not a trade

Re:

Its rather amazing what a government can do to you without actually putting you in prison.

What is really amazing is how much you can do to them before they can put you in prison. Here in the US - despite the current trend toward tyranny - you can do a lot that would get you imprisioned or even executed in many other countries.

Re:

If I wanted to do something about decreases in freedom of speech, I wouldn't even know where to start.
Start by sending a letter to your local congresscritters. If they don't care about your privacy, then vote someone in who does. If there is no one to vo

Re:Can you feel it?

"Whatever you do will be insignificant, but it is gravely important that you do it." - Ghandi

Post Anonymously

I submit that we should all Post Anonymously to this thread in support.

This one matters...

To the extent that "all government is local", this is a very important case, because while Uncle Sam may be great big and far away, if you are in a small city or town and are critical and can be outed via a simple subpoena, then what's to stop the local city or town government from instructing the local chief of police to make sure you get more than your fair share of traffic tickets, building inspectors from condemning your home, power co. operators from playing with the juice, in short any or all other governmental or quasi-governmental person who stands to benefit from a critic being silenced from engaging in a pattern of harassment, deception, etc.?

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.

Re:

It's very, very sad when we trust a private corporation more than we trust our local goverment.

You got that exactly backwards... it's very, very sad when people put trust in government -- ever. I'll take a private corporation that I can either do or do

That was dumb...

While agree with the EFF's premise (in that someone shouldn't be forced into identifying him/herself just because they've been vocal about a public issue), I have to wonder... WTF would the township do with the info?

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.

/P

Re:That was dumb...

You are probably breaking three or four laws right now and you do not even know it.

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.

Selective Enforcement

You are probably breaking three or four laws right now and you do not even know it.

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).

This is very likely true. To amplify this

Re:

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 with lawyers involved, thats not how it works. They would ignore him for awhile, giving th

Who do they think they are?

They should realize they are some small city government in New Jersey. They seem to think they are China. Only to China, Google and Yahoo will dutifully genuflect and bend over. Not to New Jersey.

invasive and non-invasive postings

Blogging, and writing web pages are non-invasive: I am not going to receive the material unless I search for it and select it. Non-invasive postings are like a newspaper in that respect. If I don't like your newspaper I don't subscribe and after that if you continue to drop it off on me that is littering. anonymous non-invasive postings are fine eMails, phone calls, FAXs, and executable codes are INVASIVE. If you bust through my door without identifying yourself and stating your business I like to put a boot in the seat of your pants. we have already won on FAXs and on Caller-ID. Next will be eMails and executable codes. NO SIGNATURE? NO EXECUTE.

Par for the course

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.

Does Anonymity create more or less truth?

Ok maybe this is an tangential question to the subject. But I'm wondering does the ability to post anonymously create more truthful revelation because people are not afraid of retribution? Or does it create more bogus BS because people know they can't be held accountable?

Bearing on the case?

According to the article, they are attempting to discover the bloggers identity not to call them out or persecute them, but to make sure it isn't the defendant in the case.

The township subpoenaed Google for "daTruthSquad's" identity -- as well as for any emails, blog drafts, and other information Google has about the blogger -- claiming that the defendant in the case is actually writing the posts. The defendant, however, has already sworn under penalty of perjury that he is not "daTruthSquad."

Why this was left out of the article summary, I am not sure. While I don't personally think that giving away the person's identity is right, I do think the prosecutors have the right to know whether or not the defendant is posting these blogs to cause a big ruckos and to support their cause. Especially since the defendant has already testified it is not them. If they lied, they are guilty of purjury. If google could just verify that the blogger is not infact the defendant, I think that would be fair enough.

DON'T GET HYSTERICAL : Other Side of the Story

EFF Twists Truth? [nj.com]

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."

I'm all for anonymity but what if...

But what if the blogger is in fact the guy being sued for malpractice or someone directly involved in the case? Should that still be protected? Should someone be allowed to create 'sock puppet sympathizers' to defend them? To editorialize on their behalf? To criticize their opponents with impunity?

Something seems wrong with that. When speaking anonymously its easy to say things because you have no personal accountability for what's said. That can be used for good and for evil. I'm not sure it should be automatically protected.

After all, we'd be outraged if Walmart managers started series of grassroots anti-union blogs in a number of places... "I'm just an anonymous low level walmart employee like you whose against the unionization because... reason reason reason reason... and I'm posting anonymously because I fear retaliation from the union rabble rousers who just want to consolidate power for themselves. I we unionize they'll win, and we'll all lose. And then over the following weeks posted all kinds of stuff criticising the union organizers in every way imaginable."

Each blog would repeat the others and manufacture 'truth by repetition'.

There'd be no way to prove it was management, because of course:

We must protect anonoymous online journalists!!111!

Who is this guy?

Can someone give me his name and address? I want to personally congratulate him on his noble crusade for anonymity!

Re:Freedom of Spee... ah Responsibility

Rather than trying to find some cloak of invisibility he should be preparing his defence with his lawyer.

You're not American, are you?

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.