Suit Against ‘Above the Law’ Blog Dismissed

Damn, I have not even had a chance to write about the lawsuit against the ‘Above the Law Blog’ and it is done and over.

So what’s up then? Last week, a University of Miami law professor arrested but never prosecuted on a charge of trying to solicit an undercover police officer sued the Above the Law blog for its posts on his predicament. But, in a startling development only days later, Donald Marvin Jones then abruptly dismissed the litigation, by posting a terse Notice of Voluntary Dismissal.

The suit by the African-American professor claimed the blog portrayed him in a false light, invaded his privacy and infringed the school’s copyright on his faculty photo, the National Law Journal reported last week. The dude was asking for a cool 44 million. I hope that was not for the photo. Here is the complaint (PDF).

The Southern District of Florida suit claimed an October 2007 article about Jones’ arrest "instigated its readers not only to read the post but also to join in what was clearly a viciously racist series of rants.” A later post featured a photographic collage that included Jones’ face on a $20 bill—the amount police claimed he had offered to pay for sex. Since the solicitation charge was later dropped, and Jones’ record was expunged, and he says he was innocent of the charge, he claims libel.

Managing Editor David Lat said it was the only time in its three years of operation that ATL had been sued. The bottom line is that bloggers are growing and pushing the edge of free speech. To quote Jerry Seinfeld, 'Not that there is anything wrong with that,' but we need to understand as I have blogged about fifty times now, bloggers are not exempt from defamation litigaton for what we say. We are in our infancy, we are feeling our power, and bloggers are cutting the edge. There is going to be a backlash.

Let me share an anecdote with you. A few weeks ago, one of my cases led to a national brouhaha in the sports blogging universe. I sued the defending World Champion Philadelphia Phillies and their first baseman, slugger Ryan Howard, in order to recover a 200th homerun baseball I felt was wrongfully swindled from a 12 year old girl. Here is the link in case you missed it. http://www.cnn.com/2009/US/10/09/florida.baseball.lawsuit/index.html

Because the story went national, scores of writers blogged about it and me. I can’t begin to tell you the names I was called, many scandalous and libelous. Okay, so some would say truth is a defense, but being called a greedy, scummy, slimeball, dirtbag, by anyone other than the guy I live with is unacceptable. There were a lot of reckless bloggers I could probably legitimately sue. Many just do not grasp what constitutes defamation; what is not fair public comment.

From a legal standpoint, the Plaintiff in the ATL case may not be done. As no answer had yet been filed, he had a right to enter a voluntary dismissal without prejudice, and did not need to seek the court's permission. That means, potentially, he can easily refile. There has been no settlement and apparently no discussions with the defendant’s counsel, Mr. Randazza, who publishes the great blog, The Legal Satyricon. So the story may not be over yet.

Here is Mark's comment: 'I’m relieved that Mr. Jones came to his senses. We were prepared to file a motion to dismiss and a motion for sanctions, and we were confident that both would have been successful. I am consistently unimpressed by academics and anti-speech parties who think that the courts are there for the redress of foolishness, not the legitimate redress of valid legal grievances.'

Anonymous Blogger Sued for Defamation May Be Unmasked

As readers of this blog know, I have steadily written about the unfolding laws of bloggers’ and their rights.

People that host blogs are generally protected by a section of federal statutes which shields them from liability for what others post. It allows for the free dissemination of speech in the Blogosphere. But when those postings are defamatory, a prospective litigant is not without redress. He indeed may sue the blog to disclose the IP address of the alleged defamer. Then, after acquiring the same, the aggrieved party can determine if he wants to sue the author, once tracked down.

It is therefore not surprising to see then that a Tennessee judge has ruled that a husband and wife who operate a halfway house for recovering drug abusers may unmask an anonymous blogger who allegedly defamed them. This usually requires suing the host of the blog. So they did.

The anonymous blogger accused a couple, Donald and Terry Keller Swartz of Old Hickory, Tennessee of committing arson, evading taxes and being drug addicts themselves. That is some serious defamation. They subpoenaed Google to reveal the blogger, and the blogger filed a motion to quash.

Judge Thomas Brothers ruled against the blogger:

“Internet anonymous speech is not entitled to absolute protection,” Brothers wrote in his Oct. 8 opinion (PDF posted by the Citizen Media Law Project). “The free speech of the defendant must therefore be balanced with the reputation and privacy interests of the plaintiffs.”

Brothers applied a five-step standard established in a 2001 New Jersey appellate case, Dendrite International v. Doe. It requires a reasonable attempt to notify the blogger, a reasonable time to respond, identification of allegedly defamatory statements, a substantial showing of proof, and a balancing of First Amendment interests.

Brothers said his decision may be immediately reviewed. What I can tell you is that a new era of American jurisprudence is unfolding, and it is going to require caution and a steadied jurisprudential hand to find the proper blend between free speech and wrongful abuse.

Federal Bill Would Limit Bloggers' Legal Rights

A recent amendment to the federal shield bill being considered in the Senate will exclude non-"salaried" journalists and bloggers from the proposed law's protections.

The law, called the Free Flow of Information Act, is intended to prevent journalists from being forced to divulge confidential sources, except in cases such as witnessing crimes or acts of terrorism.

Essentially, this means the new age of reporting and reporters, independent citizen journalists are left legally hanging out to dry. Independent bloggers are the target here. To quote Pam's Blend Blogger, Pam Spaulding: "At once we're considered irrelevant and so dangerous they have to legislatively set up a slippery slope that can land us in the clink or left penniless just for trying to participate in citizen journalism. Wow. The real issue here, however, is less the shield law than placing a definition of what is a journalist on the books. That will allow pols, news outlets, state governments, etc. to deny citizen journalists press access because they are not "journalists" as defined by federal law."

Schumer's amendment draws a distinct line between bloggers and "real journalists" that:
limits the definition of a journalist to one who "obtains the information sought while working as a salaried employee of, or independent contractor for, an entity-

a. that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means; and
b. that:

1. publishes a newspaper, book, magazine, or other periodical;

2. operates a radio or television broadcast station, network, cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier;

3. operates a programming service; or

4. operates a news agency or wire service."

To to be a journalist in Chuck Schumer's eyes, you have to both have a boss and that boss' company must disseminate news on some other medium beyond a blog. In the age of more freedom to publish what you choose when you choose, a legislator with a law designed to limit your rights and restrict your access. Just as more and more venues, from federal courts to sports teams, are accrediting bloggers as legitimate journalists, a United States Senator, probably afraid of the articles which would embarrass him, finds a way to restrict our freedom.

Shame on you Schumer, you hypocrite.

Cali Lawyer Suspended Over Blogging While Serving as Juror

I thought the first and best article to post on my return from the illness that has knocked me off line is one where the feature had to do with lawyers and blogging.

A 40-year-old California attorney has had his law license suspended for 45 days over a trial blog he wrote while serving as a juror. Because of a blog post by Frank Russell Wilson, an appeals court reversed and remanded the felony burglary case, reports the California Bar Journal.

Although reportedly warned by the judge not to discuss the case, orally or in writing, Wilson apparently made a lawyerly distinction concerning blogs: “Nowhere do I recall the jury instructions mandating I can’t post comments in my blog about the trial," he writes, before forging on with unflattering descriptions of both the judge and the defendant. He also failed to identify himself as a lawyer to the trial participants, the bar journal notes.

Still, the whole point of blogging and texting and googling comes into play in another court of law, does it not? This is the wave of the future, and I dare say, the tide of the present. Either ride the wave like a surfer on Black's Beach, or get sucked under the powerful waters of the new reality. If you make a fool of yourself in court on a Monday, someone will blog about it on Tuesday.

You can tell jurors not to google and be as effective as telling Iranian protestors not to gather in the street. You can torch a car for insurance and while you think you were alone, a gas station video camera catches you buying the gasoline. You can fly through a red light and some computer mails you a ticket the next day after the snapshot sent an email with your license plate on it to another computer which printed out your name. You think you are alone. You are not. George Orwell is here with you. It is 1984, but it just took till 2009 to get here.

People used to write in diaries, now their unedited fortunes appear on facebook, my space, linked in, and blogs. We use the 'Net to connect with the past and link to the future. What that lawyer did in that trial was ride the wave, but he bucked the court, disobeyed the judge, and paid a price.

Obscenities Fly In "Skank" Hearing

This is the case that gave birth to the Broward Law Blog, so we pick up in its entirety the post by Chris Thompson from last week. This is a story so big that it was covered by the AP, the BBC and the worldwide press but the censors at JAABLOG removed the column I wrote about it because they were worried it might chill the comments of its readers, so they chilled the comments of one of its authors. They can put their head in the sand, but the story is today in the sunlight.
http://browardlawblog.blogspot.com/search/label/Bloggers%27%20Rights

Joshua Plaut slumped in the back of Manhattan's Supreme Court today, waiting for the judge and seemingly willing this whole affair to go away quietly. He hailed from the New York powerhouse law firm Wilson Sonsini, and Google was paying him top dollar to do as little as possible. The search giant, whose founders cling to their "Don't be evil" motto like guns and religion, had found itself in the middle of a tabloid frenzy, a courtroom drama pitting a statuesque Vogue model against an anonymous blogger who had decided the world needed to know she was nothing but a dried-up strumpet. For a company that prides itself on ennobling the world in between bouts of record-breaking quarterly profits, this was grief Google didn't need.

Last August, someone set up a Google blogger account and used it to create the blog Skanks in NYC, complete with photographs of New York model Liskula Cohen partying with her friends, as well as a few captioned observations about her sex life, age, and mental state. A horrified Cohen promptly got herself a lawyer and sued Google, seeking to force the company to divulge all identifying information the blogger provided when he or she registered the blog. The anonymous defamer's attorneys challenged the suit, insisting that federal law protects their client's online speech. Today, both sides met in court to duke it out.

The courtroom scene was Google's worst nightmare. On the one hand, the company has come under fire for collecting personal information from its users and storing it for months; if Google gave up the blogger too eagerly, its worst critics would have another barb with which to accuse it of playing fast and loose with its customers' privacy. On the other hand, who wants to be seen protecting some nasty, small-minded, cowardly gossip?

Reporters from the BBC, the Associated Press, and New York's most lurid tabloids packed the room, while cameramen waited to catch the players on the steps outside. Cohen sat quietly to the side, topping 6 feet in high heels and a black overcoat, tapping out text messages while waiting for Justice Joan Madden to arrive. Her lawyer consulted his brief by her side, and the blogger's legal army bivouacked on the opposite end of the court. Joshua Plaut was surrounded by a legal and media circus on all sides, doing his best to keep Google's role in this affair as small as possible. When Madden called the lawyers to the bench, Plaut took the first opportunity he had to declare, "Google will comply with the court's determination," sit down, and shut up.

Unfortunately, the show went on just fine without him. As Cohen leaned forward, her lawyer Steven Wagner argued that the blog's slurs were defamatory and actionable. Madden asked which slurs he was referring to, and Wagner had no choice but to read them aloud to the room:
"Nothing like opening wide to take that thing into my mouth AGAIN," he read, referring to a photograph of Cohen's face near a man's groin.

"She's a psychotic, lying, whoring, still going to clubs at her age, skank."
"She may have been hot 10 years ago, but is it really attractive to watch this old hag straddle dudes in a nightclub or lounge?"

As her lawyer read, Cohen buried her face in her hands and heaved great, mewling sobs. Wagner struggled on. "My client is a professional model," he insisted. "These words have an impact on her career. ... It is a denigration of her business, and it affects the willingness of people to hire her."

But can blog readers reasonably conclude that Cohen really was an elderly, mentally ill prostitute? Unless Wagner could demonstrate that the blog's remarks constituted factually verifiable statements, the speech was protected, and so was the anonymity. Wagner rolled out his fanciest lawyerin', arguing that when the anonymous blogger suggested that Cohen was eager to indulge in oral sex again, he or she implied facts about Cohen's sexual history, and such language was more than just an unflattering caption.

Anne Salisbury, the anonymous defamer's attorney, was having none of this. Sadly, she said, nasty remarks like these are the coin of the realm in the Internet, and her client did nothing more than descend into the more subterranean districts of protected speech. The very title Skanks in NYC tips off the reader that the site is nothing but opinion and hyperbole. Unpleasant nonfactual commentary is clearly protected; just look at the Web site Hot Chicks With Douchebags, which successfully fought off a similar suit. "That is the reality today," she concluded.

Blowjobs, douche bags, and whores—that's what Google had to hear associated with its brand today. Is it any wonder that Google's lawyer refused to talk, packed his bags, and shot out of court as soon as Madden announced she would issue a ruling in the next few weeks?

But this may only become more common for Google, as more and more people sue to pierce the scrim of online anonymity. Last year, the Indian government forced Google to share the personal information of an Orkut user who defamed politician Sonia Gandhi; the man was subsequently arrested and criminally charged. Google gave personal Orkut information to Brazilian officials investigating a pedophile ring, but not without a fight. Two former Yale law students are suing the law student forum AutoAdmit, in an effort to force it to reveal the identities of fellow students who spread nasty rumors about their sex lives, rumors that live on in every Google search of the two women. If they succeed, the case could establish new precedents that will ripple across the online world.

Clearly, Google has a lot of new potential headaches waiting for it. But today, it just had to hear its name connected with a tawdry little spat. Outside the courtroom, in a particularly bizarre scene, attorney Anne Salisbury ran through the list of protected slurs: asshole, sleazebag, slime, chickenshit. As she repeated her claim that Skanks in NYC clearly telegraphed its hyperbole, one reporter joked, "Yeah, but what if you're trying to find skanks in New York City?"

http://tbm.thebigmoney.com/blogs/feeling-lucky/2009/03/11/obscenities-fly-during-skank-hearing

Internet Defamation Leading to Blogger Lawsuits

Censorship is Not a Good Thing

It has only been a month but some of you may not remember that this blog got its start as a result of JAABLOG censoring me. Despite having a password to post articles on their site, they foolishly, in my mind, chose to delete, after its publication, an article I had written on the legal liability of bloggers.

JAABLOG, meaning probably Marshall “I paid for this blog” Williams, felt he did not want columns which might in any way inhibit the breadth of their posters’ comments. I felt news is news, and Google being sued by a Vogue model in order to disclose a defamatory poster’s identity was worthy of a blog by a guy who has been doing first amendment law cases for thirty years next month. So I started my own blog, and 'gotta tell you, I'm loving it.

Ironically, the conclusion I reached was that blogs such as JAABLOG would more often than not be protected against litigation, by virtue of the exemptions granted to blog sites under provisions of the Communications Decency Act. Here is the piece I wrote which was censored:
http://browardlawblog.blogspot.com/2009/01/bloggers-have-right-to-anonymity.html


As a member of the First Amendment Lawyers Association, very intrigued by issues of this nature, I carefully track articles on the subject. I recognize they are esoteric and limited in broad interest. However, those as intrigued as I am by these issues are invited to a piece on law.com this morning, written by Jonathan Bick, for the New Jersey Law Journal.

http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202427535077

Jonathan Bick is counsel at Wolf Block in Roseland, N.J., and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of "101 Things You Need To Know About Internet Law" .

This is as good an article as you are going to read anywhere on the rights of bloggers, Internet defamation, and the kinds of lawsuits JAABLOG posters may be facing as they trespass routinely on the principles of defamation and slander. The blog may be protected. The posters may not be so lucky.

I wish the jaablogers the best, because I am doing my thing, and it is entirely different than what they do and how they do it. Some of what they cover is cutting edge, nearly first responder type of info. Like this great piece today:

http://jaablog.jaablaw.com/2009/02/26/judge-kaplan-this-is-crap.aspx

You almost think that if there is a heart attack in the courthouse it will be on Jaablog before the stricken party reaches the ER. Just don't have that time, and am more interested in legal commentary then drooling.

The National Blawg Directory pretty much proves there is room in the blawgosphere for thousands of blogs, and no one should be jealous of the other. But as I pointed out in the original article, there are going to be more and more lawsuits for defamation and slander on the Internet. And Jaablog sure invites some comments which push the envelope, so while their posters should never be chilled, they should nevertheless be forewarned.

For myself, I am looking forward to being counsel on one side or the other in the inevitable constitutional litigation that is going to evolve out of blogging our way recklessly through the legal universe.

Norm Kent

Was Journal Blogger Dan Slater Laid Off?

The ABA Journal is today reporting that the popular Dan Slater, the writer for the Wall Street Journal Law Blog is one of 14 people laid off in the news room.

'A post by writer Dan Slater on Friday said it was his last day and legal editor Ashby Jones will now guide the blog. A note on the website doesn’t identify Jones as the sole writer, though; instead it says the newspaper’s legal affairs group will do the writing.

The Wall Street Journal announced the 14 newsroom cuts last month and said a legal staffer would be cut, according to Legal Blog Watch. But the newspaper didn’t identify which legal journalist would be laid off, making Slater’s note a surprise. Legal Blog Watch speculates the change could mean the Wall Street Journal Law Blog will reduce its coverage of the legal industry.'

Blogger Robert Ambrogi of Legal Blog Watch isn’t happy with that prospect. He explains his devotion to the Law Blog this way: “A typical day for me goes something like this: Wake up. Check the Wall Street Journal's Law Blog. Brush my teeth. Check the Wall Street Journal's Law Blog. Make coffee. Check the Wall Street Journal's Law Blog. Shower. Check the Wall Street Journal's Law Blog. You get the picture

Whatever Dan does he does well. And he was one heck of a legal blogger. Good luck to him.

Italy Criminally Charges Google Lawyer for Blog Post

Some stunning legal news off the Privacy Law Blog.

Several Google executives, including the Company’s global privacy counsel, Peter Fleischer, will face criminal charges in Italian court stemming from Italian authorities’ two-year investigation of a video posted on Google Video showing a disabled teen being taunted by classmates.

The video, posted in 2006, depicts four high school boys in a Turin classroom taunting a classmate with Down syndrome and ultimately hitting the young man over the head with a box of tissues. Google removed the video on November 7, 2006, less than twenty-four hours after receiving multiple complaints about the video.

Nonetheless, Fleischer and his Google colleagues face criminal charges of defamation and failure to exercise control over personal information that carry a maximum sentence of three (3) years.

Because this legal issue raises the liability of bloggers and blog publishers, you can expect it will be censored by jaablog. Afraid of limiting the zealous comments of their posters, they do not have the guts to publish real articles on these issues. But the Italian law is patterned somewhat after the Communications Decency Act of 230 and the possibility of this happening in America is not unreal.

Google Execs Face Privacy-Related and Other Criminal Charges for Taunting Video

Federal Judge Lets Reporter Live Blog Trial

By Debra Cassens Weiss, Courtesy of ABA Journal

U.S. District Judge Mark Bennett of Sioux City, Iowa, is a tech-savvy judge in a district with high-tech courtrooms. When he was a practicing lawyer in a small law firm, Bennett was willing to pay an “outrageously expensive” amount to make his office possibly the first in the state to have desktop computers. He believes he was probably the first federal judge to have an e-mail address. And he reads blogs on a daily basis, such as Sentencing Law and Policy Blog.

So Bennett was favorably inclined when a reporter for the Cedar Rapids Gazette e-mailed him to ask if she could use a laptop computer to cover the tax fraud trial of a local landlord by posting live courtroom updates. Bennett took a few days to think it over, and responded that he would allow it, provided that the reporter, Trish Mehaffey, sat farther back in the courtroom where her typing would not be a distraction.

“I thought the public’s right to know what goes on in federal court and the transparency that would be given the proceedings by live-blogging outweighed any potential prejudice to the defendant,” Bennett told the ABA Journal.

The landlord, Robert Miell, was convicted of filing false tax returns as part of an insurance fraud scheme, according to Mehaffey’s stories in the Gazette. Mehaffey carried news of the verdict through an interactive live blog and brief updates on Twitter.com.

Before trial began on the tax fraud charges, Miell pleaded guilty to 18 counts of mail fraud. The charges involved allegations he collected insurance checks based on false claims and sent invoices to former tenants with fraudulent repair costs, according to the Gazette.

The live blog allowed readers to comment during the trial and Mehaffey to answer their questions. Mehaffey says she got around 500 comments, choosing which ones to post. “Why is it that the slimiest ones figure out a way to cover their backsides?” one reader asked. Ignoring the “slimiest ones” characterization, Mehaffey replied: “Thanks for using backsides :)”

Mehaffey tells the ABA Journal it was the first time she posted live blog updates from a trial. She notes that a columnist at her newspaper has also done some courtroom blogging, covering arguments in the state supreme court last month in a challenge to the Iowa law banning same-sex marriage.

“Times are changing, and it’s all about the digital industry,” Mehaffey says of courtroom blogging. “It’s a way for us to meet the demands of our readers.”

Mehaffey says she’s heard of several reporters allowed to blog from state court proceedings. A few federal judges besides Bennett have also allowed live-blogging of trials.

Accredited journalists were allowed to use laptops and other electronic devices to cover the trial of five men convicted of plotting to attack Fort Dix, according to a court website listing the rules. The media representatives received a password giving them wireless Internet access in the courtroom.

Bloggers were allowed to use computers to cover the perjury and obstruction of justice trial of I. Lewis “Scooter” Libby, but they had to work from an overflow room where the trial was broadcast on closed-circuit TV, according to Gary Hengstler, director of the National Center for Courts and Media.

There are some critics of the practice, however. Miell’s defense lawyer, F. Montgomery Brown of West Des Moines, is one of them.

Montgomery didn’t have a problem with any courtroom distractions caused by Mehaffey’s blogging. In fact, he said he was unaware the trial was being covered live until the judge mentioned it in passing. “There wasn’t any disruption, from my position,” he told the ABA Journal.

But Brown is worried about problems that could arise if jurors should access the blog outside the courtroom. Brown read Mehaffey’s blog posts after the trial ended, and he thought they included the reporter’s subjective analysis of the trial. What if jurors ignore a judge’s warning not to access the Internet or read media accounts of the case? he asks. Cautioning that he was speaking generally and not about the Miell case, Brown said some jurors could be tempted.

“The issue as I see it,” he said, “is it puts … subjective analysis out into the media stream, and then it’s available at the discretion of the jurors if they want to violate any admonition to go out there and look for it.”

Bennett admits that he also checked out the blog, for a brief 10 seconds or less shortly after the trial started.

Asked if he would allow a reporter to post a live-blog account of another trial in his courtroom, Bennett said he would certainly entertain the idea. “It might depend on the case; it might depend on who’s making the request,” he says. Next time, though, he would likely raise the issue with the parties.

And Bennett says he’s probably going to suggest that the Northern District of Iowa develop a policy on courtroom blogging, “so it’s just not an ad hoc decision by me.”

Here is the link for further information:

http://www.abajournal.com/news/bloggers_cover_us_trials_of_accused_terrorists_cheney_aide_and_iowa_landlor

Bloggers Have A Right to Anonymity

By Norm Kent

In New York City last week, a Vogue model made headlines not by being on the cover of a new magazine but by being referred to as a ‘skank’ on a rather inconsequential and insignificant blog.

The model, Liskula Cohen, has now filed a lawsuit against Google and its Blogger.com website, seeking the identity of the anonymous blogger.

Although the entire blog was generated on a single day and it contains a total of solely five posts, the blog entries refer to the model derogatorily as a "ho," a “#1 skanky superstar,” and otherwise depict her as sexually promiscuous, dishonest, and unclean.

Because the site is hosted through Google's Blogger service, Cohen is asking the court to order Google to disclose identifying information including the blogger's name, address, telephone number and email.

As a policy matter, Google does not reveal bloggers' identities without a court order. "We take great care to respect privacy concerns and will only provide information about a user in response to a subpoena or other court order," a spokesperson said. Good for them.

On January 5, the court issued an "order to show cause," which requires Google to appear before the court on January 26 for arguments about whether disclosure of the blogger's identity should be ordered.

New York attorney Steven Wagner represents Cohen, who in the past appeared on the cover of Australian Vogue. He alleges in the complaint that the blog posting is defamatory, libelous, and costing his client possible employment.

Wagner acknowledged that it is no easy legal task to identify bloggers who lob insults anonymously, but re-asserted his position that the publications were defamatory “and you shouldn’t just get away with this.” We will see. Bloggers have a right to anonymity.

The reason Wagner has to sue is because a blog owner does not have to release the name of a blogger without a court order, which is very hard to come by. Generally, courts around the country apply at least a two-pronged test before requiring the release of the name of a blogger, if it can even be found. First, the Plaintiff has to show that the blogger’s remarks are defamatory. For a statement to be defamatory, it first must be false, and then it has to expose a person to ridicule, contempt, or injure him in his business or trade.

Second, even if the plaintiff establishes defamation, the court has to then balance the strength of the underlying legal claim and the need for disclosure against the strength of the blogger's claim to First Amendment protection. Courts have recognized that the right to speak anonymously is a fundamental part of the First Amendment right to free speech, and accordingly a level of scrutiny is required before stripping an anonymous Internet speaker of that right. It is a high burden to meet.

When considering a subpoena or other discovery request seeking to unmask a speaker, various courts have struck the balance in different ways. The result is a number of different legal tests have been created for deciding whether or not to allow a blogger/speaker's identity to be revealed. These tests or standards can be placed into roughly two categories: (1) high-burden tests and (2) low-burden tests.

Every state is of course different, but most, including Florida, are leaning towards protecting the rights of anonymous bloggers. Many states are mandating a tough threshold for the Plaintiffs. A factor that might affect what test or standard applies is the character of the speech activity over which you are sued. Some lawsuits clearly implicate important First Amendment concerns -- criticism of public officials or government policies, whistleblower activities, to name a few. That would seem to protect the bulk of the communications on courthouse blogs, such as another one in Broward where the commentaries are sometimes downright dirty, juicy and filled with unsubstantiated gossip.

I think you can reasonably predict that a court is more likely to apply a high-burden standard when "core" First Amendment values are involved, and less likely to do so when the issues appear personal or otherwise unrelated to matters of public concern.

I think that the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, I believe an author's decision to remain anonymous is an aspect of the freedom of speech protected by the First Amendment. Nevertheless, when you are significantly causing harm to another, courts will have to weigh your right to anonymity versus the purported victim’s right to redress his grievances. That is what the Google court will decide in New York.

It comes down to this. We have an adversary system, with each side making a claim to rights. You have a right to publish anything you want on this or any blog. So too does some other party have a right to challenge your publication. The presumptions of the first amendment favor the original publisher. You have a constitutional right to publish on this blog treatises like Shakespeare or potty- mouthed insults as some disbarred attorneys do. So too does another party have a right, after the fact, to allege that publication was defamatory, and respond accordingly.

According to the nonprofit Media Law Resource Center, there have been about 150 documented civil court actions involving bloggers. At least seven cases have resulted in verdicts against bloggers, with cumulative penalties totaling $18.5 million. But I would not lose sleep over this. The Internet is growing exponentially every moment, with thousands of new blogs getting created on the Internet every day.

By the way, the blog itself is not liable for the libel. Federal laws protect it. While newspapers can still be sued for the residual publications of libel, blog sites such as these are shielded under the Communications and Decency Act, specifically Section 230.

Still, if you blog frequently and loosely, make an effort to understand liability. There are limits. It’s kind of like the speedometer on your car. Just because the odometer goes up to 180 mph does not mean you should always drive your car down Broward Boulevard at that speed.

A New Blog for a Better Broward

By Norm Kent

Last month, writing on JAABLOG, I authored a piece stating that ‘The Blog Serves a Public Purpose.’

Here is the link, if it remains up. http://jaablog.jaablaw.com/2008/12/21/this-blog-serves-a-public-purpose-by-norm-kent.aspx

Why then start another blog, a month after defending the other one?

The essence of the piece I wrote was that the Internet has opened up a new electronic frontier for the First Amendment, and bloggers have become the digitalized version of the ladies that stand in front of the courthouse holding up a Bible telling us how Jesus is going to save us all. I politely joked that it is too bad Jesus did not have access to IM, because he could have seen Judas Iscariot coming.

At the same time, I shared how unsavory JAABLOG had become. While communicating my thoughts that bloggers were protected by the first amendment and serving a public purpose, I acknowledged that JAABLOG's commentators and posters had become at times unnecessarily offensive.

I defend pornographers but I do not bathe in pornography. I have defended individuals accused of soliciting children but you will never find me at Annie Beck Park wearing only a raincoat. As an advocate operating within an adversary system, I have represented bad people who did mean things to good people. That does not mean I have to like them or become like them.

As you read the comments on JAABLOG, unmoderated, anonymous, and flowing with venom and vitriol, you get a feeling that everything about our system is unclean, unhealthy and untoward. Quite to the contrary, many of the professionals who make up our courthouse community are dedicated public servants working against all odds to fashion out a life for themselves, personally and professionally, which is honorable and admirable. Some achieve their goals, others get elected :-).

Over thirty years as an attorney, I have managed to disagree without being disrespectful, fight for causes without fighting people, and stand up for rights without beating up my opponents personally. That other blog lost that feel a long time ago. It is at once a home for truth but not trust. Penetrating revelations about a court officer’s misconduct are compromised by libelous missives without any basis in fact. It is Howard Stern on drugs. It has gone from humorous to hostile.

Within our lives, we are called upon to make choices each and every day. While it was my intention to participate in that blog enthusiastically, I have instead elected to exercise that entrepreneurial bent which has made America a land of limitless opportunity. Everyone has a right to build a better mousetrap. I have the right to create a better blog. And so I am starting my own.

There is another reason, too, I find it necessary to disassociate with whomever or whatever is called JAABLOG. The forces that control the publication seem to revel in anonymity and nastiness. They enjoy the hurtful and hostile comments as necessary components of exposing injustices in the system. I do not join in their enthusiasm. I choose to draw a distance between myself and them and their blog.

As a matter of fact, I promised last month to author an article on the rights and responsibilities of bloggers, referencing recent court decisions related thereto. Ironically, right now, in New York, a Vogue model has sued a blog seeking the identity of a blogger for purportedly defaming her. Last Thursday, at 7:59 a.m., that article was posted on JAABLOG. Within six hours, the article was taken down.

I have been told that the article ‘chilled’ the freedom of uncurtailed expression which gives the blog life. So the expression they chose to chill was mine instead.

I cannot and will not associate with agents of censorship, who are willing to curtail free expression to advance a personal agenda, one that sacrifices newsworthiness for possessiveness. I do not even need to know who took the article down. I know whoever it was, is not worthy of being my colleague and partner. I know they are being penny wise and pound foolish. So it goes. Now I have a blog of my own.

The blog I initiate today, though, is truly ours. It invites commentaries, and they may be anonymous, but they require registration. It invites participation, and it carries with it promise. Maybe it won’t be the Weekly World News of Meanness, but it will be viable and voluminous, critical yet conscientious.

Each day I will try to find a little time to sort through your notes and emails, which you can send to publishernormkent@gmail.com. I am looking for news and notes from the courthouse; decisions that are distinguished or downright outrageous.

I am looking for organizations wanting to get their message out, and I hope the blog will become a healthy, helpful, useful resource for everyone working in and about the building, from jurors to judges and judicial assistants to counselors. My effort will only reach its goal with your participation.

This blog, the Broward Law Blog, www.browardlawblog.com will give life to the wealth of organizations that already exist. We have the BACDL, and associations under the moniker of the Broward Bar Association, Trial Lawyers Association, Young Lawyers Association, GLBT Lawyers, Hispanic Lawyers Association, Cuban Lawyers, lawyers in rehab and lawyers in drag. There certainly are enough groups to go around.

Last month, when I got involved with JAABLOG, I also agreed to try to restructure the not for profit corporation, JAAB, Inc, the Justice Advocacy Association of Broward. Many did not realize that the non profit and the blog are now two separate entities. The non profit never could pull its act together. I am going to try, but under a new name, with no ties to the past.

As the new President of that non profit, I am changing its name, recruiting new members and inviting your participation in the new Broward County Courthouse Coalition. Our start at a coalition will be the birth of this new blog.

This blog is designed to give a collective voice to many groups. It will be professional and responsible, and you won’t get your hands and heart dirty reading these pages. I guess maybe it will be like Playboy. You will pick it up more for the articles than the pictures. At least that is what you will tell people.