NJ Blogger Fights for Anonymous Free Speech 406
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 (Score:4, Insightful)
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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 (Score:4, Interesting)
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 (Score:4, Insightful)
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 (Score:5, Funny)
I'm not so sure. I think I could be persuaded to interpret that literally.
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I'm fine with laws if they apply equally to everyone. While at the same time I do feel that it is my right to criticize public figures without fear of retribution. But the tricky bit is when someone like me is critical of a public figure, it comes off as
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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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 show up in court?
Re:You are free to say anything you want (Score:4, Informative)
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.
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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 facts), and that the statements were false.
IANAL
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Generally how it works is that for a case to proceed you must prove that you have a cause of action. Which means that you need to show BRIEFLY that the case isn't frivolous. Once you get beyond those initial pleading phases, however, the defendant needs to be actually involved in the case.
I don't see how that CAN be done anonymously.
I suppose you COULD sue "John Doe," but that seems a little silly.
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Ooops, I meant
you have to prove that there was malice in the intention
I am still not a lawyer. Probably a good thing....
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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Just a practical consideration...
If legal proceedings are being brought because of slanderous/libellous things being written in an anonymous blog, then some work is required to ascertain the identity of that person. To reduce this work, it is logical to remove the right to anonymity. The problem is that, if writing anonymously is breaking the law, then you have to put that same work in to ascertain the identity of the writer.
Uh, I'm not explaining this very well... but by removing the right to anonymi
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Besides, if the RIAA has taught me one thing, it's that cases can be brought against John/Jane Does where it can be decided that there is enough merit to do so, and then the name can be subpoenaed.
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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somethign that has always bothered me about blogs and people not liking what is said on them and the blogers calling it free speach is this..
if i use my right to free speach - then i am talking.. i am standing next to you and talking.. you can choose not to listen to me but you will still hear it because i spoke it.
but if i write something and you read it.. that is diffrent.. the blog is out there for everyone to read.. it is like leaving a book on a park bench.. you ch
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Thank you for accountable informative comment, dear Anonymous Coward!
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If you look at the court's treatment of slander and libel, at least in the U.S., the tend to err on the side of the speaker except in
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Also, from a writer's point of view (whose purpose is to persuade his audience), rath
Re:You are free to say anything you want (Score:4, Insightful)
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.
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If this premise is true, then the rest of the argument follows. Can you provide evidence that this is the case? Citing examples of outright oppression does not provide any support to your assumption, as there was an absolutely no intent to separate truth from fiction in those cases.
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Bullshit.
The first and fifth amendments to the United states constitution both apply here.
1. I can say whatever the fuck I want, without worrying about the consequences of doing so, because, damnit, it's absolutely necessary to preserve my other rights.
5. My words cannot be used against me in any court of law. If you intend to convict me of a crime, you need goddamn evidence. Testimony of any kind is UNRELIABLE no matter what. To ask som
Can you feel it? (Score:4, Interesting)
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well not so odd.. as it is the truth - and a very scary one at that...
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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I agree with your sentiment wholeheartedly. However, the problem isn't that people are obsessed with bad TV shows. The problem is that people don't know what to do about it. I am one of those people. If I wanted to do something about decreases in freedom of speech, I wouldn't even know where to start.
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Sure, it won't REALLY accomplish anything, but maybe you and a couple hundred other like-minded bloggers can all get online and whine about it and convince yourselves it matters.
Re:Can you feel it? (Score:5, Insightful)
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That one's going up on a plaque in my office.
Although, I'm not sure what side Gandhi would be on re: this article, to whit:--Gandhi
A modern Gandhi might say he believes in equality for everyone, except reporters, photographers, and bloggers.
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Once there are enough of us, we open fire.
Figuratively speaking of course. Violence has never been the way to secure your freedom from a corrupt government.
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Tell that to the people of the Boston Tea Party, or Lexington, or Bunker Hill, or any other famous battle of the Revolutionary War.
Of course it could be said that we simply secured our freedom from one corrupt government by installing another. But that's a whole other argument.
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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 vote in that cares about your privacy, then get involved in politics. It's not as hard as it sounds. Unless you are in a really large city, there are probably empty board seats on the city council in which you could probably run unopposed.
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Re:Can you feel it? (Score:4, Interesting)
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
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It has always been like this and likely used to be much much worse (after all it used to be that no one knew of such things), except that you are likely a young twit who has never looked at history in his life. Hell do you not know of the red scare or even the the war on drugs that burned justice on a stake?
Welcome to reality, enjoy your stay and pleas learn some perspective.
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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That's because TV is more important than fringe freedoms. At least, that's how the people democratically voted it. The founding fathers are going to have to deal with face-slaps because in a democracy, you simply can't control what people believe in. As soon as you do, the system becomes decidedly less
Re:Can you feel it? (Score:4, Informative)
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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-physical, safe and comfortable uneducated jobs? Yeah, blame Clinton not your own laziness or anything like that.
This leaves people no choice but to go to college, which for most people means tens of thousands of dollars in debt.
A trivial amount, if you're capable of working hard and living well within your means you can easily pay it back within a year or two of graduation.
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A trivial amount, if you're capable of working hard and living well within your means you can easily pay it back within a year or two of graduation.
1) Did you go to college in the U.S.? and 2) Did you pay for your college education out of your own pocket?
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. A bit less if you go to a public school Unless you're willing/able to live with mom and dad for the first few years following your graduation, paying back that loan is a real bitch, especially when
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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 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. Also I'm quite lazy, if I needed to I could have easily doubled that amount at the cost of my free time. See I wen
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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Unless one lands a high paying job strait out of school and avoids things like a mortgage or paying rent, paying back 30-100k worth of debt can take a while.
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What a fanciful, atypical and unrealistic view of college loans and life after college you have!
Lemme guess -- single engineer?
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Have you actually worked yet? 'Cause it don't sound like it.
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Read the Constitution and Bill of rights again. Fourth Amendment - the right to be SECURE in *PERSON*, PROPERTY, and PAPERS.
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"
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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What's to search and seize? They were posted on a public forum. If this were an email or other "private" communication, the 4'th Amendment would apply, but he/she made this post with the knowledge and intent that it would posted for all the public to see.
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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.
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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And then what will you do?
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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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The original post bitched that all of our rights were being stripped away. Personally, and maybe I'm wrong here, I never knew we had a right to anonymity. I looked it up, but couldn't find it in the Constitution (as I said). If we do have the right to anonymity, then I need to go rip my name off my mail box and my license plate off my car! If the fourth amendment means that
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Post Anonymously (Score:3, Insightful)
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.
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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 don't do business with, over a government entity any day. You don't have any choice with the government.
Whistleblower laws? (Score:2)
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.
Selective Enforcement (Score:3, Interesting)
This is very likely true. To amplify this point, I can say that in my town (a small town of a little over 1000 homes) there are many laws about all sorts of ridiculous minutiae that are only selectively enforced. These include laws that say, for example, that your trash cans can't be visible from
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They can't do that to a woman? Am I reading you wrong?
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But with lawyers involved, thats not how it works. They would ignore him for awhile, giving the coworkers better performance reviews (not bad for the employee, but better for the others) ensuring the others get promotions. They would slowly change the scope of work of the employee, to set them up to fail. They would also start doing LOTS of rando
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.
Freedom of Spee... ah Responsibility (Score:2, Insightful)
It is important that anyone speaking out, or even breaking the law, understand that there are possible consequences, and assess whether on the balance they still wish to move ahead. Obviously datruthsquad has a rather sketchy understanding of the law, and is now being threatened for his actions.
Rather than trying to find some cloak of i
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Since when does "responsibility" equate to retaliation by some petty bureaucrat as in the case here?
It seems to me the responsible citizen doesn't let their government officers get away with strong-arm tactics, thievery and all out corruption. That's where responsibility comes in. Not with "leave an easy trail for someone to key your car".
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.
Does Anonymity create more or less truth? (Score:4, Interesting)
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Look at Paula Jones of GrokLaw. She? is relatively anonymous so why should we credit her? But we do credit her because she produces official certified documents that are available publi
Bearing on the case? (Score:3, Informative)
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Google can answer that with a simple "yes" or "no".
Not sure how to tie this into Facebook's (Score:2)
http://www.theregister.co.uk/2007/12/03/zuckerberg_files/ [theregister.co.uk]
From the URL:
"Facebook founder loses court battle to keep personal data offline
Poked by his own petard... bitch"
and:
"Mark Zuckerberg has been given a taste of his own medicine: his personal information is being plastered all over the web forever.
The Facebook boss has failed in a court bid to gag a magazine that published data including drunken extracts from his college diary and his social security number.
Federal judge Douglas Woodlock to
"particularly critical " (Score:2)
If it is the former then his comments are no different to thousands of letters published in local newspapers all over the world every week criticising decisions and governance - a process that is wel
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."
I'm all for anonymity but what if... (Score:3, Interesting)
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!
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Who is this guy? (Score:3, Funny)