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

Articles Maybe Worth Catching Up On

Stemming Prostitution in LA; A Class for 'Johns'

http://www.latimes.com/news/local/la-me-john-school26-2009feb26,0,6083392.story

Ten Commandments Monument May Stand Alone; Free Speech

http://www.nytimes.com/2009/02/26/washington/26scotus.html?_r=1&th&emc=th

Time For Legalizing Marijuana? CBS News Editorial

http://www.cbsnews.com/stories/2009/02/25/opinion/courtwatch/main4828659.shtml

Jersey Governor Will Sign Medical Marijuana Bill;

14th State to 'Medicalize' Pot

http://www.citypaper.net/blogs/clog/2009/02/25/new-jersey-governor-jon-corzine-says-hell-sign-medical-marijuana-bill/

No Oscars for Medical Marijuana Providers;
Unjust Federal Laws (Written by your publisher)
http://blog.norml.org/2009/02/25/no-oscars-for-medical-marijuana-providers/


Bailed Out Bank Blows Millions On Parties; Northern Trust not so Worthy
http://www.alternet.org/blogs/workplace/128829/

Team Owners Stole Millions from Charities;
More Scams from Corporate America
http://www.nydailynews.com/money/2009/02/25/2009-02-25_two_exislanders_bosses_nabbed_for_steali.html?ref=nl&nltr_ct=1&nltr_id=Two%20ex-Islanders%20bosses%20nabbed%20for%20stealing%20$533M

Court Says Helmsley Dollars Do Not All Go to Dogs
http://www.nytimes.com/2009/02/26/nyregion/26helmsley.html?_r=1&emc=tnt&tntemail0=y

DCF Child Abuse; Talenfeld Wins Again
http://www.dailybusinessreview.com/news.html?news_id=53477

JAABLOG's Listing of New Florida Criminal Justice Bills Legislators Propose
http://jaablog.jaablaw.com/2009/02/26/dre.aspx?ref=rss

Briefs, Names and Notes in the News

This is a weekly feature that will periodically be updated with more notes as we discover items worthy of some press but not a singular post…

---The picture at the top of the blog that you see is of Amy Brian, discharged from the Kansas National Guard after serving a year of combat duty in Iraq. Her crime? Promise not to ask or tell? Being gay, of course. Caught kissing a friend , hey that's some serious stuff !!! Read the travesty here…. http://cjonline.com/stories/020809/kan_385832549.shtml

…. Terry Schiavo, anyone? In Rome, the Italian government on Friday passed an emergency decree to keep a woman in a vegetative state alive on a feeding tube, circumventing a high court decision and ignoring a warning from the Italian president that he would refuse to sign the decree. Read it in the NY Timeshttp://www.nytimes.com/2009/02/07/world/europe/07italy.html?_r=1&emc=tnt&tntemail0=y…

--From previous posts…we have updated the story about the AP suing Shephard Fairey, the Obama poster artist, as he got arrested in Boston for painting graffiti on the walls of bridges; yes, really----http://browardlawblog.blogspot.com/2009/02/ap-sues-over-popular-obama-poster.html….

--Also redone the story on the flag desecration case arrests of Fred Phelps band of fundamentalists. I hate him, but I think Fred’s minions are getting screwed http://browardlawblog.blogspot.com/2009/02/flag-and-first-amendment-burn-in.html--

---the Public Defender’s Office lost a champion in the passing of Ron Dallas yesterday after a series of kidney related ailments over the past few years; there's a page on Jaablog to express your thoughts..

http://jaablog.jaablaw.com/2009/02/07/courthouse-loss.aspx?ref=rss

A Bronx Tale comes to Broadway Across America on Tuesday night at the Parker Playhouse, for only a week, and believe it or not, it appears that Rosenfeldt, Rothstein and Adler are now sponsors of the theatrical group event. Unsure whether Scott will be in the starring role..

http://www.broadwayacrossamerica.com/BAA.Web/Pages/BAACity.aspx?city=Fort-Lauderdale&SeriesShowId=6720&showId=1599&name=A-Bronx-Tale

City elections also Tuesday, with lawyers Jack Seiler and Dean Trantalis arguably frontrunners and squaring off for Mayor of Fort Lauderdale. Good Sentinel blog piece by Anthony Man suggests Seiler will be stung by the gay community for getting Jim Naugle’s support even though Jack has always been supportive of the gay community. Dean has a very organized campaign that has only been positive and proactive. I expect a close race and a March run off, but my guess is that the personable defense lawyer Steve Rossi, despite all those bus benches, does not have the broad-based community support to get the votes he needs, nor does Mr. Reynerson, who owns a wonderful business, Claad Tile, but is running as Lieutenant Colonel Reynerson. I don't see that as a winning move. I am not sure which race Jim Lewis is going to lose this time. It's hard to keep track. Calm down, he's a good guy, but there is no Bar rule which requires you to run for office everytime we hold an election.

http://weblogs.sunsentinel.com/news/politics/broward/blog/2009/02/does_support_from_fort_lauderd.html

…

--A feature in today’s paper shows the profligacy and extravagance of the Lieutenant Governor in using the State’s private planes to fly back and forth around the state. Charley, the gov, should fire his ass. The way it looks now Kottkamp should be nominated for a cabinet post in the Obama administration.http://www.sun-sentinel.com/news/politics/elections/sfl-flfkottkamp0208sbfeb08,0,7399045.story..

By the way, I never heard the word ‘vetting’ until it was used to describe the way Obama was going to cull out the best and the brightest for his administration. After seeing the job he did, maybe they should go back to good old fashion ‘screening.’....

An appeals court says imprisoned former Illinois Gov. George Ryan may keep part of the state pension that was canceled after his conviction on racketeering and fraud charges. That should be encouraging for Rod Blagoyevich’s future and Ken Jenne’s past…http://www.nytimes.com/2009/02/07/us/07brfs-RULINGFOREXG_BRF.html?emc=tnt&tntemail0=y

Courts Cutting Down Free Speech of Lawyers

In surfing the net to collect articles of interest to our readers, we came upon this piece today from the National Law Journal, which we republish without comment and with credit to its original source. Comments by former Judge Avalos, defeated in her election bid, and Sean Conway, Supreme Court reprimandee, make it interesting..

Lawyers critical of judges fight for rights
Are lawyers' First Amendment rights being unfairly limited?

Tresa Baldas / Staff reporter February 9, 2009

Maybe it's something in the air. Lawyers in California, Florida, Michigan, New York and Ohio, to name a few, are at the center of legal debates and constitutional battles involving harsh and sometimes vulgar comments about judges. Judges are increasingly catching flak from lawyers in a variety of forums, most notably the Internet, where blogs have become a popular tool for attorneys to vent frustrations about a judge.

In Florida, an attorney faces discipline this spring over a blog entry on a courthouse blog in which he described a judge as an "evil, unfair witch" with an "ugly, condescending attitude" and questioned her mental stability. The Florida Supreme Court refused to hear the lawyer's constitutional argument in October. He will be reprimanded in April and has to pay a $1,200 fine. Florida State Bar v. Conway, No. SC08-326 (Fla.).

In New York, an attorney was recently suspended for five years for committing several ethical violations, including writing an article on a Web site in which he criticized a judge's handling of a divorce and custody proceeding. A New York appeals court said the "overzealous behavior" was disparaging and "constituted conduct prejudicial to the administration of justice." In the Matter of Barry L. Goldstein, No. 2006-10353 (N.Y. App. Div.).Protected speech?

In Michigan, flamboyant trial attorney Geoffrey Fieger, the one-time lawyer to Dr. Jack Kevorkian, is pursuing a highly watched right-to-criticize-judges lawsuit. Fieger is challenging a state rule that was used to sanction him for calling state appeals judges "jackasses" in a radio show and comparing them to Nazis for overturning a $15 million verdict he had won.Michigan's Rules of Professional Conduct for lawyers require that attorneys treat those involved in the legal process with "courtesy and respect" and bar "undignified or discourteous conduct" toward judges.

Nonsense, argues Michael Dezsi, Fieger's lawyer, who is currently fighting to have the courtesy rule declared unconstitutional before the 6th U.S. Circuit Court of Appeals."Our argument has always been that attorneys have a right to criticize judges, even if it's harsh," Dezsi said. Dezsi said Fieger's comments were protected free speech because they were nondefamatory remarks made outside the court and did not affect a pending case."I think overwhelmingly case law has supported protecting trials, not judges' feelings," Dezsi said.

Florida attorney Sean Conway, the lawyer who called a judge an "evil witch" on a blog, echoed similar concerns. Although he is not fighting his discipline, Conway believes that lawyers' free speech rights are unfairly limited when it comes to criticizing judges."Even though we all thought we had First Amendment rights, be careful," Conway warned. "It's going to cost you a lot of money and maybe even your practice."

As for his comments that got him into trouble, Conway, who posted them using his name, said that he was expressing anger over what he claimed was the judge's giving lawyers too little time — one week — to prepare for trial. "I picked the most powerful language because I wanted to have my message heard," said Conway, adding that lawyers are increasingly blogging about judges, "anonymously and in hiding."

Catalina Avalos, a former judge in Broward County, Fla., said she knows all too well how nasty lawyer blogs can get. Several disparaging remarks have been made about her on blogs, including racial slurs, in the past year, along with many "negative, vile and false" comments about other judges."These blogs are turning up all over the country, and what's happening is you have what we presume to be lawyers blogging under anonymity," said Avalos, now a litigator at Tripp Scott in Fort Lauderdale, Fla.

Still, Avalos isn't sure about whether lawyers making nasty remarks about judges should, or can, be punished. "Our First Amendment is one of our fundamental rights," Avalos said. "Certainly, the protections are going to be far reaching."

But that doesn't give lawyers a green light to say whatever they want about judges, said James Moliterno, who teaches professional responsibility at the College of William and Mary Marshall-Wythe School of Law."There needs to be a certain amount of restraint," Moliterno said. "The public's perception of the justice system is affected by the way lawyers behave. Lawyers accept this when they get sworn in and take their license. They accept some limitations on various speech rights."

-----------------------------

Did I say would run this story without comment? No way. Can't resist. Sean got screwed. Aleman is no 'witch,' but the Bar prosecutors are warlocks for going after him. The Supreme Court then skated out from overturning it, even though they gave themselves a shot. Very unfortunate. Calling a judge an 'evil witch' is surely not prudent, but it is hyperbole at best; an emotional and zealous response after being placed in an untenable position in court. Yes, the case has become a national cause celebre', but in a more mature and less politically correct age, I think an apology should have cut it. Then you move on. Considering some of the things I heard lawyers say about some criminal judges over the years, from Futch to Franza, a 'witch' does not a public reprimand warrant. Man, Ray Sandstrom is turning over in his grave. ... N.K.

Newer Notes on a Kinder, Gentler Blog

By Norm Kent

Welcome again to the Broward Law Blog.

Here are some news and notes.

First, I have named this blog The Broward Law Blog, and it will be accessible easily at www.browardlawblog.com If you saved the earlier title that I was temporarily using, browardccc.blogspot.com, you can delete it. The url was too complicated.

Second, I am neither in a race with JAABLOG to some artificial destination, nor do I care what they do with their villainous website. My eyes are set upon the stars and I am not going to slow up by looking down at their feet.

Third, the Broward Law Blog is at its inception. It is not a publicity stunt to create a ‘Blog War’, though that was a very creative post from the other team. I loved the picture of me playing baseball ten years ago. I wish I still could. I laughed at the scurrilous homophobic pot shots which followed. That’s fine. I have been in the public eye for a long time, as an attorney, radio host, and publisher. I can handle it. As Howard Finkelstein noted to me, rather incisively, as always, “an anonymous post only has the power you rent it in your head.”

Fourth, I owe the censors at JAABLOG thanks. I have watched too much of the turmoil in this courthouse and county from the sidelines. They took down one of my columns and inspired me to start a legal blog of my own; inspiring me to do something I have otherwise wanted to do for a long time. They say I am a Johnny-come-lately. So was Lou Gehrig when he replaced Wally Pipp.

Fifth, I am looking forward to this new adventure and working cooperatively with lots of good people to spread our message. That means applauding success and admitting failures, being honest though not necessarily hurtful, and being a warrior, not just a witness.

This is the blog’s third day online, and it was not supposed to be our first. As I was planning the design, test formatting the layout and posting initial articles on the blog, the site went ‘hot’ with public notices from other sources. Blogging is not a skill set I learned in law school. I still have lots of design, layout, and content work to do, so give me some time, and enjoy the diversity and breadth of this site, as it emerges. I hope I can create something the legal community will turn to for information and ideas.

Once the blog is up and running, I will enhance it by asking supportive members to join with me in the Broward County Courthouse Coalition, a non profit organization with new officers, including experienced attorneys and youthful law students. Together, as the group grows, we can become an advocacy group serving the public good. Whether our role in the courthouse is as a deputy in charge of security, a clerk commanding files, or a lawyer advocating a case, we are all partners. We are a coalition of professionals trying to make our lives more dignified.

All I can tell you about this new Broward Law Blog is that I am going to try to have fun, make it entertaining, aesthetic, and meaningful. I hope the voices you hear are respectable and have content worthy of your consideration and inviting of your time.

Thank you

Norm

See also:

http://browardlawblog.blogspot.com/2009/01/new-blog-for-better-broward.html

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.