Judge Orders Man To Delete Revenge Blog 590
nonprofiteer writes "A Minnesota man violated a restraining order obtained by his ex-girlfriend by blogging about her mental health and sexual issues, and sending links to posts on the blog to her family, friends, and co-workers. The judge then extended the restraining order by 50 years, ordered the guy never to write about his ex on the Internet and ordered him to delete the blog he created. Even though there was no evidence that what he had written was false, the judge said the ex-girlfriend's 'right to be free from harassment' outweighed the guy's 'right to free speech.' 'I believe it's rare, if not unprecedented, for a court to order an entire blog deleted,' says technology law professor Eric Goldman."
Re:hipaa violation as well? (Score:5, Informative)
no he is not a health organization.
Welcome to MN (Score:4, Informative)
Re:hipaa violation as well? (Score:5, Informative)
Usually that line is drawn at whatever the criteria are for getting a restraining order. What those are varies by jurisdiction, I bet.
Re:I call bullshit (Score:4, Informative)
I call bullshit on your bullshit. ..."
"A Minnesota man violated a restraining order obtained by his ex-girlfriend
A restraining order can stop someone from approaching, harassing, intimidating,
threatening, etc.
He did something to deserve that restraining order. Then he violated it.
People vent on their ex'es all the time. Show me someone that has
a restraining order just for that, and I'll agree to call bullshit on it.
Re:I want to know who this man is. (Score:5, Informative)
Why bring up the ACLU? Any American who values the Constitution would be concerned.
Except that the guy consented to the restriction not to adversely affect her privacy.
He already willingly forfeited his right to free speech in this case, the court is simply enforcing his word. If this punishment were overturned, then it would be precedent to make NDAs unenforceable as well.
Re:I -do- think this order is un-constitutional. (Score:5, Informative)
Well, you need to look into constitutional law a little more. First amendment rights vary according to the type of speech and the subject.
Political speech gets very broad protection -- your political rants and screeds, no matter how odious, pretty much are protected. When you start advocating violence against a particular person or group, however, you have reached the boundary. You are not protected from the consequences of said speech, either.
Commercial speech (ie: advertisements) get much less protection. Like the FTC might come down on you for truth in advertising issues. The FDA prohibits certain forms of advertising for prescription drugs.
If you direct attacks at a particular person, who that person is has impact on your protection. Is the person a politician either in or running for office? Fire away, pretty much. Does the person live in the public eye? Famous actors have to put up with a lot of crap. Is the person just a normal Joe trying to get by? The court tolerates much less crap aimed at them.
Libelous and slanderous speech is always subject to remedy.
Anyway, the d-bag in question clearly wasn't making a political point, and the victim certainly wasn't a politician or movie star. This was a private person trying to have some privacy, and some d-bag being a d-bag in a very public way. It is a fact that the truth is always an absolute defense against libel, so maybe if what he said was true you can't shut him down for libel. But hurtful speech directed against a private person is not going to get very much first amendment protection. And I'm OK with that. That's a very different thing from a political rant.
Re:Well... (Score:5, Informative)
By "carefully toeing the line" I presume you mean "not actually violating the restraining order"?
The man should be punished for harassing his ex-girlfriend. Depriving him of his First Amendment rights, however, should not be part of that punishment.
Re:Well... (Score:5, Informative)
By "carefully toeing the line" I presume you mean "not actually violating the restraining order"?
Looks to me like the guy just found new ways to harass her in the legal sense that didn't violate existing restraining orders. So the Ex took out a new restraining order that covered the new form of harassment.
The man should be punished for harassing his ex-girlfriend. Depriving him of his First Amendment rights, however, should not be part of that punishment.
Why not? The whole point of a restraining order is to prohibit harassing behavior without tossing the culprit in jail. I think it more noteworthy that the judge made the restraining order for 50 years. From googling around, I gather such orders generally aren't longer than a year before they're reviewed. In that light, this one seems unusually onerous.
More googling indicates the ruling was appealed and mostly upheld [leagle.com] though the length of the restraining order was cut from 51 years to 50 years, which is apparently the legal maximum for a restraining order in Minnesota. They seemed to think the terms of the original restraining order were otherwise legal and constitutional.
Re:Well... (Score:5, Informative)
By "carefully toeing the line" I presume you mean "not actually violating the restraining order"?
In my limited experience judges don't find it clever if you violate the spirit of the law without violating the letter. If the restraining order specified no harassment, for example, and he was going to argue that forwarding upsetting posts to family members doesn't precisely meet the definition of harassment set forth on paper, the judge will most likely (and justly, in my opinion) hand him his ass.
Re:I -do- think this order is un-constitutional. (Score:5, Informative)
Well, you need to look into constitutional law a little more. First amendment rights vary according to the type of speech and the subject.
Well, if you want me to read the first amendment, then I'm not finding anything about that.
If you want me to look at the invisible exceptions that judges have 'interpreted' into the constitution, then I guess you're right.
Certainly, I never said otherwise.
But you didn't say: "Well, my reading of the constitution is...", you said: "... is constitutionally protected.." -- well, not to coin a phrase or anything, but that depends on what the meaning of "is" is. If "is" means "because GeneralEmergency say so", well, you are right. But if "is" means "the law of the land in a practical sense as implemented in every federal district court circuit" then I think I'm closer to the mark.
In addition to reading the constitution, did you read the Federalist Papers, and the so-call Anti-Federalist Papers? And study the history of the time? Not that I have, but they are among my goals for 2012. The founders were political activists. They were concerned about the suppression of political speech. The constitution leaves much unsaid. The law in the early United States drew from English law, so it seems to me it would have been understood that protections against libel and slander that come from English common law were precedent. Early decisions about how to implement the first amendment would have been made against the background of inherited English common law. Where the constitution seems vague by today's standards, I think we need to look at the common thought of the time -- a certain amount of things left out probably would fall in the category of: "Well, duh! That's obvious."(*) to Jefferson and Madison.
(*) Citation needed. It's not clear either Jefferson or Madison ever said "duh".
Re:Yes... and no. (Score:5, Informative)
The guy signed an six-month HRO that prohibited him from (1) committing any acts “intended to adversely affect [Johnson's] safety, security, or privacy,” (2) having “any contact” with Johnson “in person, by work or home e-mail, by telephone, or by other means or persons,” and (3) visiting Johnson's Morgan Stanley “worksite.”
I would say blogging personal information, publicizing it and directly contacting family friends and co-workers are acts intended to adversely affect Johnson's privacy. As punishment he is now being given a stronger/longer HRO. He lost his right to free speech when he signed the HRO.
Re:hipaa violation as well? (Score:5, Informative)
At that point, however, he could still face prosecution for libel if he couldn't prove what he'd said was true.
Re:hipaa violation as well? (Score:5, Informative)
Indeed, even rats have been shown to practice metacognition [cell.com]. Presented with a choice with consequences -- full reward for the right answer, no reward for the wrong answer, and a tiny reward for an "opt-out" choice -- lab rats will choose the right answer when the test is easy, but as it becomes increasingly difficult they begin to hesitate more and more, and eventually start to choose the "opt-out" choice. That is, they know what they do not know and will make choices that are not impulsive, but are well thought out.
The gp could also be referring to delayed gratification, but higher nonhuman animals have also been shown to practice that. For example, if you have chimps in a setup where there's a device that slowly loads up a food dispenser with one desired food item after another, but stops as soon as the chimp takes the food, after prior experience with the test, most chimps will wait until all possible food items have been loaded before taking them. Delayed gratification has also been shown in dolphins and a number of other animals.
Re:What if the alleged victim was... (Score:2, Informative)
The US Constitution is based on the British Constitution which predates it by 91 years. In turn this is predated by Magna Carta (1215) and the Code of Alfred (870), all of which guarantee inalienable rights including the right to address grievances without fear of reprisal.
Unfortunately, civil courts operate on what is called commercial code. This is exactly as it sounds: two sides of an argument scrap it out in polite company of a third, uninvolved and uninterested party: a commercial tribunal. The protocols surrounding said tribunals all revolve around contract law, rather than common or constitutional law. It boils down to agreement of terms of a contract, and if there is a deadlock, the tribunal usually sides with the party with the most money (such is the nature of these tribunals, the little guy always loses). There is no finding of law in these tribunals, merely the interpretation of statutory instruments to suit the circumstances. Criminal code is where you'll find juries who are tasked with the finding of fact, and in the cases involving damages, the award and amount of damages. Guideline penalties are codified in statutory instruments, which the judge may or may not capitalise on to maximise the effect.
Family proceedings are not courts. They are administrative tribunals - basically meetings presided over by a judge or magistrate to give the colour of law, wherein unitary authorities (in public law) or the complainant (in private law) bash out their case and it is on the respondent to prove his/her (mosttimes his) innocence.