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And this is where US law ought to step in and say "no, you can't do this."

There are dozens of reasons this ought to get laughed right out of court. Anti-SLAPP statutes, for one, or the judge could just issue a bench order declaring the case to be brought in bad faith and dismiss it with prejudice.

Unfortunately, US judges are brain-dead fools who follow the highest bidder and with one or two notable exceptions, have no education in modern technology. The end result has been a stream of rulings by idiots whose first interaction with technology was reading Jack Valenti's "VCR=Boston Strangler" comments in a newspaper.

Of course, the legal system doesn't help either in general. As you pointed out, the primary purpose of the legal system is no longer to decide issues fairly, but to burn up a shitload of time and money to enrich the lawyers and ensure that only gigantic megacorporations can "play" in the system and anyone else gets just squished under the weight of the paperwork. The bad judgements we've gotten because one side was a megacorporation with massive teams of lawyers and unlimited money to throw at it and the other person was a single human being trying to defend themselves while mortgaged to the hilt and relying on the scant hours of pro-bono counsel or volunteer lawyers for groups like the EFF (I like you, guys, but let's face it, volunteer time vs corporate resources!) are steadily eroding away consumer rights every day.

And don't forget that this even goes to the US Supreme Court, where legendarily crappy decisions (Eldred v Ashcroft, "even if congress set copyright at a million billion years that still constitutes a limit so it's constitutional and the no-ex-post-facto law restriction we just don't fucking care about because the MPAA/RIAA/MafiAA/Disney paid us off) fuck the consumer over too.

As far as "free speech", while there are technicalities all over the place and it does get complicated with judges also claiming that you don't "lose your rights" when stuff happens like this, I would have to agree with you on a practical level. Once you have a lawsuit filed, you pretty much have to shut up.

Of course there is explicit legislation that is designed to stop this sort of behavior by "activist groups" and others who are clearly on a political campaign and have previously been exercising their 1st amendment rights prior to a lawsuit that attempts to shut them up: http://www.thefirstamendment.org/antislappresource center.html

While SCO here is screwed financially as it is, normally this is something that is dangerous as the group (like PJ from Groklaw) which is sued, as long as they are on the safe side of libel laws, can counter sue for incredible amounts of money. In the arena of public opinion, it is also a P.R. nightmare to lose a SLAPP suit, not to mention it may have serious negative consequences if you are involved with other legal matters.

I was recently threatened with a law suit from a fairly large company because of an unfavorable review I posted on my website. I received a letter promising a similar lawsuit if I did not take the review down. I complied and replaced the review with an article lamenting the loss of Free Speech. I received another letter stating that that would not do and I must remove the entire comment.

This is the resulting page: http://blog.emptycrate.com/teamnational

I will shortly make it my personal goal (probably after the current US election cycle) to get anti-SLAPP law(s) passed in Colorado so that others do not have to deal with this same nonsense.

http://www.thefirstamendment.org/shield-law.html
I think this link would be appropriate.

The fact that the journalist/blogger in this case has a LEGAL right to withhold the information is not even in dispute. The issue here is that the Federal government is stepping in to declare his rights null and void. How convenient. Smells like somebody made a phone call because they want this kids arse on a platter. Kudos to the young man for sticking to his guns. I'm sending him some money for legal defense.

In addition to the California statute, the First and Fifth Amendments give EVERYONE the right to withhold information about a crime. It's not necessarily the moral thing to do, but you have the right. Even if (especially if) you committed the crime yourself. You can refuse to testify, and refuse to honor any subpoena. It comes at a price, however. You can be pressured, intimidated, held in contempt, and kept in custody to help you change your mind. But it's not a crime.

-TC
----
"Quis custodiet ipsos custodes?"
- Decimus Junius Juvenalis

I want to add a little context. Why does the federal government care about this case? You'd think they have more important things to do than investigate every alleged attempted arson on a municipal police car. There's no SFPD records of a damaged car from that night and no repairs were made. And the link to federal juridiction because they gave money which may have been used to pay for the car is tenuous at best.

There was an SFPD officer who was injured that night and the FBI and US Attorneys office are improperly collaborating with the SFPD to investigate it. There is a CA journalist shield law, but no federal shield law (much to the chagrin of Judith Miller). If they had played by their own rules and convened a state grand jury to investigate the injured officer, Josh would have been protected by this law and wouldn't be in custody now. The government is doing an end-run around these protections by using the federal grand jury and is lying about its motives.

http://www.thefirstamendment.org/shieldlaw.html http://www.gannett.com/go/newswatch/2000/november/ nw1103-7.htm

"How can he try to hide behind a shield law if he did not record any crime? "

Perhaps because the shield law is about Protecting Unpublished Information and Confidential Sources and specificly "all notes, outlines, photographs, tapes or other data of whatever sort" for the purpose of protecting "a journalist from being adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for the failure to comply with a subpoena."

So if he is a journalist, then he should be covered. I don't see how he could possibly not be a journalist. So he should be covered. It certainly feels as though the Feds are more or less saying, "You have it, we want it, we are taking it."

Nowhere in the constitution does it say that a member of the press cannot be required to divulge their sources, either. Once again, Slashdotters are lecturing others on the first amendment without, apparently, reading it themselves. The constitution says:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

That is, Congress can't make a law denying the press the right to print information. Nowhere in the Constitution does it explicitly say anything about a reporter's ability to keep sources confidential in the face of a court subpoena. This is why 31 states feel the need to have shield laws that provide that very protection.

So ultimately, it will be California's shield law, not the U.S. Constitution, that determines whether or not the proprietors of the websites in question are part of the "press," and whether or not they can be forced to divulge sources. If you want to read up on the specifics, check out this site.

Good link in parent post.

The first amendment (rtfa) protects anonymous journalism.
Talley v California
McIntyre v Ohio
Watchtower v Stratton
Tornillo v Miami Herald

However I don't know if this has been applied, or disapplied, to journalists' protection of sources, by a supreme court case.

The california constitution, article 1 section 1, contains a right to privacy, a constitutional shield law, a statutory shield law, and a judicial doctrine protecting sources not covered by the shield law.
http://www.thefirstamendment.org/shieldlaw.html

1. Company X does something bad
2. Citizen Group Y complains about it (in a newsletter, road sign, whatever)
3. Knowing that Citizen Group Y has limited funds and cannot afford a long, protracted legal battle, Company X files a lawsuit against Citizen Group Y, claiming they're disparaging their product or otherwise defaming their business (can you believe there's actual laws that serve as a basis for this crap? I mean, what the hell is "food disparagement" anyway?)
4. Citizen Group Y caves in, Company X resumes doing evil without tarnishing its good name

Actually, this may not be as horrible as everyone makes it out to be.

I disagree. This isn't limited to just Microsoft. Take a look

• Microsoft pushes technological solutions to protect data (DRM) with "trusted computing" via "secure BIOS".
• RIAA pushes for DMCA-like laws that prevent circumvention of the aforementioned technological solutions by making it unlawful to do so. The RIAA has demonstrated that it is will not hesitate to use these tools to their advantage.
• The RIAA is using propaganda campaigns to indoctrine our youth and to gloss over the many concerns that we have for our civil liberties. Take, for example, the RIAA's blurring of the distinction between copyright infringement and theft.

So, you see, there's end-to-end lockout being put in place. If you happen to be smart enough to see through the bullshit, you can't do what you want because the technology stops you. If you happen to be smart enough to circumvent the technology, you can't tell others unless you want to risk going to jail. And even if you were some kind of law-savvy uber-hacker, do you have enough money to survive the SLAPP?

I'm not an alarmist, but come on, folks, this is alarming! Microsoft learned the hard way that their behavior isn't beyond the scope of anti-trust regulation, but they also realized that the government is too damn slow to properly stop them. I don't doubt for an instant that they won't use every competitive advantage available to them. Content producers also learned the hard way about fair use with the Betamax decision; don't fool yourself into thinking that they're going to let the Internet slip past them.

http://www.thefirstamendment.org/antislappresource center.html

I used to think that too. Before the Skylarov case, I thought that copyright law was fairly straightforward. If you claimed that someone else's content was yours, you were in violation. And it used to be a civil law too. Now after the DMCA (Digital Mind Control Act), copyright is apparently a criminal matter (one were you enjoy no constitutional rights at that) and apparently ANYTHING can be claimed as a copyright violation. Copyright law has gotten way out of hand with the DMCA.

The type of complaint I thought they'd use here is the "Interference with contract" lawsuit (a tactic commonly used in SLAPP suits).

But I wouldn't even understand the basis for that claim. AFAIK, ReplayTV doesn't "edit" the commericals out of live TV for you (otherwise you'd be looking at a black screen for 2 minutes). It edits commericals out of taped shows. But this is something people do anyway. Most people who tape a show and watch it later, will fastforward through the commericals, intros, outros, credits, etc. And if they happen to be watching the same show they're taping, then most just "Pause" the recording during the commercials. There's an old legal saying that goes: "Unless you defend a right, it doesn't exist." Well these networks have never sued VCR manufacturers in the past 20 years for allowing people to edit out commericials on their own. I don't think the networks have the right to challenge it now.

How exactly can an individual censor you?

Tom Swiss | the infamous tms | http://www.infamous.net/

For some info on SLAPPs go here or Here or even here.
This is a handbook on SLAPP from firstamendemt.org, so take that for what you will.
And for the DIY out there, this is the google search for slapp.

Brant
Brant

It's quite simple really; Apple doesn't have and doesn't need to have a valid legal basis to file a lawsuit against the operators of the websites. Their objective is not to win or to recover damages; most such frivolous lawsuits are dismissed. Rather, they seek to stifle public discourse for economic benefit. More generally, this is known as a SLAPP (Strategic Lawsuit Against Public Participation). Normally, SLAPPs are brought by companies against protest groups, individuals, or public interest lobbyists on matters such as environment concerns, real estate developement, and zoning regulations. By transforming what is essentially public debate on issues of wide-ranging concern in a protected public forum into a legal discussion on the *effects* of the debate on the issue, rather than on the issue at hand. Luckily, you can protect yourself by some simple steps:

-Expressing yourself in a Q-forum (quintessentially public forum) such as a newspaper
-Make sure that your statements of fact are true
-Seek legal advice *before* taking action that may result in a SLAPP
-Move to California or another state with an anti-SLAPP law :-)


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