"Trust me. I'm a lawyer."
Posted on 08/13/2005 7:31:01 AM PDT by Gabz
High court to hear blog suit; Smyrna councilman claims anonymous defamation
By Drew Volturo, Delaware State News DOVER — A lawsuit seeking to identify anonymous posters to an Internet Web log will be decided in the Delaware Supreme Court, a case some say could set precedents for free speech online.
The case, filed last year by Smyrna Town Councilman Patrick J. Cahill and his wife Julia, alleges that four anonymous posters to a community issues blog "defamed" the councilman and his wife in late 2004.
Blogs are electronic public forums that allow residents to post their ideas, opinions and comments on a variety of issues, becoming a new arena of community commentary.
Many of those who post on blogs remain anonymous or use nicknames to identify themselves.
Although blogs and bloggers are new to the lexicon, the concept of free and anonymous speech is not, said Drewery Fennell, executive director of the Delaware American Civil Liberties Union.
"Part of our whole system of commentary on government has always had a place for anonymous speech," Ms. Fennell said.
"During Revolutionary War times, many of the writers of pamphlets (advocating revolution) were anonymous."
The suit seeks to unmask the four posters, identified only as "John Does" and by their blog nicknames.
One of the Does — identified as John Doe No. 1 or Proud Citizen — filed for a protective order to block his or her identity from being revealed.
New Castle County Superior Court Judge Joseph R. Slights III denied the protective order request June 14.
While anonymity on the Internet is essential for a free exchange of ideas, Judge Slights said there is a difference between exchanging ideas and "using it as a cover to defame others."
The defendant has appealed the decision to the state Supreme Court, which the Doe's attorney said is of great importance.
"This may be the first time the highest court in any state has decided this type of case," John Doe No. 1's attorney David L. Finger said in a recent interview.
"The important issue here is the First Amendment right to speak anonymously without fear of retribution.
"In this case, the anonymous speech is centered on the fitness and health of an elected official."
The suit will be argued before the state Supreme Court Aug. 24 in Dover.
"There are a number of appellant rulings in other jurisdictions or in federal court," said Paul Levy, an attorney for Washington D.C.-based Public Citizen, a group that defends First Amendment rights on the Internet.
"However, if the (Delaware) Supreme Court fully addresses this issue and determines what the appropriate standard is in the situation, it will have been the first Supreme Court to fully weigh in on this issue.
"This is a very significant case."
The complaint
In September 2004, the defendant wrote about Mr. Cahill on the Smyrna-Clayton Issues Blog, a public forum for residents to write about issues facing their local community.
"Anyone who has spent any amount of time with Cahill would be keenly aware of such character flaws, not to mention an obvious mental deterioration," the poster wrote, according to the lawsuit.
The Doe also referred to Mr. Cahill as "Gahill," which the councilman said could lead people to believe his is having an extramarital, homosexual affair.
In the opening brief to the Supreme Court, Mr. Finger wrote that the First Amendment "strongly disfavors defamation suits brought by public officials."
"Mr. Cahill is subject to a much tougher standard as a public official in a defamation suit," Mr. Finger told the Delaware State News.
Wilmington attorney Robert Katzenstein is representing Mr. and Mrs. Cahill in the case.
"The First Amendment doesn't give someone the right to say something defamatory to someone else," Mr. Katzenstein said in a recent interview.
"The anonymity of the Internet should not give people licenses to defame people without facing legal consequences of defamation."
Joining the case
The state ACLU and two other free speech groups, Public Citizen and Electronic Frontier Foundation, have joined the case in order to submit briefs and oral arguments as interested parties.
"One of the important things about the Internet is that even someone who doesn't have access to a printing press can bring criticisms of public officials to others," Mr. Levy said.
"It's a leveling of the playing field.
"John Doe No. 1 seems to have been making opinion-based comments rather than false statements of fact."
Ms. Fennell said the ACLU believes the standard for revealing an anonymous speaker should be "very high."
"Slander and libel laws are tougher for public figures," she said. "You have to prove actual malice.
"In some ways, this is uncharted territory, and in others, this type of anonymous speech has been around since people were scrawling on cave walls."
Post comments on this issue at newsblog.info/0405.
Staff writer Drew Volturo
can be reached at 741-8296
or dvolturo@newszap.com.
The entire situation surrounding the Smyrna elections has gone from weird to bizarro - but this could be down right scary.
Incredible as it may seem, they are right.
Anonymous advocate writings were a staple of the Founding Fathers, practiced perhaps most notably by Ben Franklin and Alexander Hamilton.
The blog is no more than a 21st century version of their anonymous pamphlets.
"Trust me. I'm a lawyer."
Yes, it is incredible...but good to see them doing the correct thing for a change.
pssst
LOL!!!
All kidding aside, he is a well respected attorney in Delaware.
Yeah, that *can't* be the first joke made at his expense.
And he's on the side of the angels here (imho).
And there is the run, which is why I think they are going more towards the following:
"John Doe No. 1 seems to have been making opinion-based comments rather than false statements of fact."
Defamation would be so hard to prove. Could you imagine how fast the FBI would be up your ass if you published an anonymous pamphlet calling for revolution?
Folks that lose to him in court are commonly known to have been "fingered" :)
Also, consider that the credibility of the speaker is at minimum when his or her identity is unknown. The same holds here; we dismiss tin foil hat vanities from posters we don't know citing no verifiable sources to back up their allegations.
I don't think they want to see themselves being outed from DU.
There has been some wide speculation on various Delaware blogs as to the identities of the 4 John Doe's.
The entire thing revolves around what was a very contentious election for Mayor and Council in that town...up to an including allegations of voter fraud regarding absentee ballots.
> Am I reading this wrong, or is the ACLU actually
> on the right side here?
They are. This is the sort of case they built their
former reputation on, before they turned to the dark side.
But this thread does serve as a reminder to FR users that,
like Buckhead, you cannot assume that you have impenetrable
anonimity here. A court order, or someone just connecting
the dots, can blow your cover.
Which is the primary reason I posted it. The political shenanigans of this town hold very little interest to anyone outside.........but the ramifications of this suit will most likely have an impact on us all.
General consensus is that the anonymous bloggers are friends/associates of the Republican Mayor who has a long history with Cahill.
Even the "Federalist Papers" were published anonomyoously, uner the pen name of "Publius."
Seems to me if I recall correctly that the law is that any public figure is open to ridicule, as a public figure. Anyone who isn't a public figure is not subject to such, as a now rich Richard Jewell can tell you.
But just where does one draw the line about who is and who isn't a public figure? Part of the issue here is some swipes were also taken at the man's wife. Just because she is married to a town councilman, does that make her a public figure?
Exactly. And that was mostly Hamilton (with some from Madison and a couple from John Jay).
Anonymous publishing was essential to the foundign of our nation - without the Federalist papers, we might never have ratified the Constitution.
That's who it's very important, when charging public officials and others with probable, serious misconduct, you always include weasel words that indicate what you're writing is your opinion, rather than a direct statement of fact, unless the public figure's in a positin where suing would do him more harm than good.
ACLU-gets-it-right ping
;-)
A word to the wise to bloggers: wipe your server logs regularly and automatically.
how was Buckhead identified? if someone said "Buckhead is XYZ", he must have admitted to it at some point to complete the "outing".
the organization hosting the site would have to do that. there are also services on the net that act as proxies for you, so you can hide your real IP address from the server you are connecting to.
> ... how was Buckhead identified?
Blogger Who Faulted CBS Documents Is Conservative Activist (L.A Times RATS out Buckhead!)
http://www.freerepublic.com/focus/f-news/1219355/posts
"Until The Times identified him by piecing together
information from his postings over the past two years,
MacDougald had taken pains to remain in the shadows —
saying the credit for challenging CBS should remain
with the blogosphere as a whole and not one individual"
Libertarian ping.To be added or removed from my ping list freepmail me or post a message here
ROFLMSS!!!!!!!!!!
Exactly part of the reason I posted this article.
I'm not 100% sure if Cahill was running this time around or not........but I do know he is on the Council. To be perfectly honest, I never lived in that town, and don't live in Delaware anymore...I was only following what bits and pieces were in the paper because I've known the Mayor for many years.
I agree with you about the pettiness of this........to hold public office, even in a small town (actually ESPECIALLY in a small town) one must have a leather hide!!!!! (or that of a dinosaur :))
I agree.......and will post anything I can find from the DE papers when (and if) I see them.
Please drop me a ping if anything shows up! TIA!
Will do.
I was surprised to not see the blogs of the local papers not full of stuff about this ysterday or today.........
Not a problem. I lived not far from there for many years and so still read the papers.
I felt the subject of the lawsuit, as opposed to the politics involved, would be of interest to many here.
Isn't Cahill a pretty big name in DE?
My husband says he is familiar with the name, but I'm not.....but not this particular one.
Smyrna official's suit causes stir
Case to reveal identity of blogger accused of defamation has potential to set national precedent for Internet age
I will ping you both if I find one I can post.
Since anyone can log in to any blog as a user, how can the true identity of a poster be known? There are no witnesses, no fingerprints, no handwriting, so no hard proof. We all know from scammers that passwords and ID's can be scammed. Even the pentagon has been regularly scammed.
How could any case be won in the absence of at least reasonable doubt?
> Since anyone can log in to any blog as a user, how can
> the true identity of a poster be known? There are no
> witnesses, no fingerprints, no handwriting, so no hard
> proof. We all know from scammers that passwords and
> ID's can be scammed.
There are IP traffic logs on the forum's servers, as
well as at the user's ISP and all the routers in between.
The ISP also has dial-in/login logs, perhaps even with
caller ID records. These can be subponea'd.
If the source IP addresses all come from the same small
ISP pool (or there's just one static IP), then the next
step is to subpoena the user's PC, and scour it for
evidence in the files, and more significantly, in the
web caches and deleted file blocks.
I'm no expert on computer forensics, so there may well
be even more sophisticated probes available.
There are a lot of kiddie porn collectors in jail
who thought they were anonymous on the net.
Anyone know when that Superior Court decision occurred?
Bloggers win!!!
Thanks for the update on this!
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