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New Jersey Judge Shields Anonymous Blogger

Posted by Soulskill on from the keeping-hidden-agendas-hidden dept.

netbuzz brings us an update to a case we discussed earlier this month: "In a widely watched free-speech case, a New Jersey judge has upheld a blogger's right to criticize county officials anonymously. The contention of those officials was that the blogger is actually a former mayor/attorney being sued by the local government for malpractice. This comes less than a month after the Electronic Frontier Foundation began their legal efforts to shield the blogger, claiming that the subpoena for Google to release his identity was 'part of an unrelated and unauthorized campaign to embarrass or otherwise outmaneuver the Defendant.' Score one for the First Amendment."

18 of 61 comments (clear)

  1. About time the first amendment means something! by Doug52392 · · Score: 4, Interesting

    I have been watching the world literally crash these days, with all the pointelss lawusits, people being sued/arrested for no reason, etc. I have just about lost hope. Finally, at least some victory! Our constitutional rights these days are so twisted that I do not see what could happen. The Internet should be a place where people can talk about themselves and how they feel about something without the fear of legal action. But they get sued and thrown in court like a common criminal for expressing their First Amendment rights to freedom of speech. Why?

    1. Re:About time the first amendment means something! by JimDaGeek · · Score: 3, Informative

      Well, if he/she is a blogger it would be libel, not slander. Libel is the written act of defamation, slander, the oral act of defamation. ;-)

      --
      General, you are listening to a machine! Do the world a favor and don't act like one.
    2. Re:About time the first amendment means something! by ColdWetDog · · Score: 2, Funny

      Well, if he/she is a blogger it would be libel, not slander. Libel is the written act of defamation, slander, the oral act of defamation. ;-)

      OK smarty pants. What happens if I turn on my text-to-speech applet and listen to the guy?

      Slander? Libel? Both?

      My head asplode.

      --
      Faster! Faster! Faster would be better!
  2. First amendment? by Opportunist · · Score: 5, Insightful

    The first amendment is afaik only about saying your mind freely. Not that you may do it anonymously.

    Now, in our times this is pretty much the same, but you know how technicalities are usually used to circumvent constitutional rights. I wouldn't deem it impossible that we'll soon see a movement that yes, you may say what you want, but we want to know who you are. Of course we won't limit your freedom to say what you want, and that van in front of your apartment is really just a pizza truck that has been delivering for days, the amount of speeding tickets you got recently just means that you had really bad luck getting caught and that your kids get worse marks now is just a result of them slacking.

    --
    We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
    1. Re:First amendment? by Anonymous Coward · · Score: 5, Insightful

      Soon be a movement? You mean that hasn't been going on since (or before) long-range wiretapping became possible thanks to satellite technology? You mean it hasn't been gathering more and more acceptance thanks to the 'war on terror'?

      I've been worried about the fact that few people worry about this for a while now... Is it the sense of powerlessness? Do people feel there's no real hope to change it? Or do they really not notice?

      Free speech carries implicit the right to speak freely even under a pseudonym -- and legally, people have the right to assume whatever name they want, as long as they are not doing it in order to commit fraud/etc. I'm not sure why it wouldn't apply if someone didn't choose to explicitly use a pseudonym -- or why, indeed, legalistically speaking, the name of the site can't be consider pseudonymistic. It's another example of how the laws of pen and paper can't be broadly applied in the digital realm.

      Weird.

      Go, Jersey Judge, go!

    2. Re:First amendment? by wave_man07 · · Score: 5, Informative

      "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." I believe you are explicitly incorrect. The first amendment clearly says that no law may be passed abridging freedom of speech. Abridging is an interesting word. I like to think of it as very similar to encroaching. The word implies a "complete" right, absolute freedom of speech. No law of Congress (what about states?, by implication they also cannot infringe the national constitution) can impair that right. So if it is a complete right, it is everything you can imagine. And you should! So if you speak anonymously, do not ask if the Constitution gives you that right. It does. Any law that forces you to identify yourself in relation to your speech, if you have chosen to speak anonymously, is inherently un-constitutional. This does not say that you are not responsible for covering your own tracks. This does not say it is unlawful to try to find out who said something. You are responsible for defending your own anonymity by your own definition of "best practice". Free speech is wonderful, complicated, and sometimes sucky (when it is millions of dollars of swift-boat drivel hitting your frontal lobe for example). When you are being assaulted by K-Street's version of free speech, say a little mantra to yourself, thank the framers that even idiots and assholes are consecrated in the First Amendment.

    3. Re:First amendment? by KDR_11k · · Score: 3, Informative

      (what about states?, by implication they also cannot infringe the national constitution)

      If we go by what's written, the first amendment only limits federal powers and a later amendment (I don't remember those numbers) points out that what the federal govt can't do is left up to the states.

      --
      Justice is the sheep getting arrested while an impartial judge declares the vote void.
    4. Re:First amendment? by Opportunist · · Score: 4, Insightful

      Law? Oh, don't worry. There won't be a single law that cuts into your right to say anything you want. You may say whatever you please, I don't see anything in the quote you offer that says I must not be required to identify myself to say it. I can still say anything I want.

      You can form any kind of group you want, you can say and propagate whatever you want, no problem there. Requiring someone to identify himself isn't against the 1st, as long as you don't keep him from saying it altogether.

      The only thing that will happen is that current laws will be used to harrass you. There's plenty to keep you busy.

      --
      We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
    5. Re:First amendment? by civilizedINTENSITY · · Score: 4, Interesting

      The real question is can you be forced (or others be forced to help,) to identify yourself if there is no suspicion of illegal activity?

    6. Re:First amendment? by Anonymous Coward · · Score: 3, Informative

      (what about states?, by implication they also cannot infringe the national constitution)

      "At the present, the Supreme Court has held that the Due Process Clause [of the 14th Amendment] incorporates all of the substantive protections of the First, Fourth, Sixth, and Eighth Amendments and all of the Fifth Amendment other than the requirement that any criminal prosecution must follow a grand jury indictment..."http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

      So this should apply to state governments also

    7. Re:First amendment? by Anonymous Coward · · Score: 2, Informative
      Fourteenth amendment:

      Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
    8. Re:First amendment? by karmatic · · Score: 4, Informative
      If we go by what's written, the first amendment only limits federal powers and a later amendment (I don't remember those numbers) points out that what the federal govt can't do is left up to the states.

      That's the reason for amendment 14:

      Section 1. ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


      They tend to ignore this for the second, fourth, and fifth amendments, but the courts tend to apply it to the first with regards to the states.
    9. Re:First amendment? by SwashbucklingCowboy · · Score: 2, Informative

      The SCOTUS ruled 7-2 in McIntyre v. Ohio Elections Commission:

      Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation-and their ideas from suppression-at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.

    10. Re:First amendment? by tietokone-olmi · · Score: 2, Insightful

      The first amendment is afaik only about saying your mind freely. Not that you may do it anonymously.

      Speaking as an european, I would point out that your constitution's first amendment does not require that in order for speech to count for freedom of speech that its originator would have to be positively identifiable at all times. I'd like to warn you against taking such fundamental things according to the most restrictive interpretation possible.

      Now, freedom of speech as guaranteed by your constitution in the "the state shall make no law (but private parties are exempt because they're not the gub'mint)" sense would be all good and fine... but only if all power resided in the government. As we both well know, there's plenty of power outside the government(s) these days: corporations are the obvious example. Your employer has power to fire you if you e.g. express opinion contrary to that approved by his abstract ass.

      Therefore in order to realistically exercise one's right to free speech regardless of circumstance and content, as intended by your constitution's first amendment, one must be able to do so without fear of repercussion. This implies, no, requires anonymity where desired by the speaker. Let the listener beware! Was that not one of the ideals on which your country's liberties are founded upon?

    11. Re:First amendment? by TheoMurpse · · Score: 2, Interesting

      "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." I believe you are explicitly incorrect. The first amendment clearly says that no law may be passed abridging freedom of speech.
      Surely you cannot be suggesting that the First Amendment gives me the right to practice a religion that requires human sacrifice in contravention of murder statutes simply because there is no murder statute in the Constitution!

      Taking this into consideration, can you understand why the First Amendment right to freedom of speech isn't 100% absolute? Should I not then be allowed to brand all my crappy software "Google" with their logo? Should I not then be allowed to freely distribute any copyrighted material to anyone, since it's merely free expression? Should I not then be allowed to shout "Fire" in a crowded theater, or point a megaphone at my neighbor's house and shout through it at all hours of the day?

      Clearly the First Amendment says Congress cannot prohibit what I've just suggested, since they are all speech activities that Congress is, by the First Amendment, not allowed to abridge.

      No?
  3. Don't Tase Me, New Jersey Bro! by DrScottyB · · Score: 5, Funny

    You mean you can openly disagree with politicians and not get tased? Weird.

    1. Re:Don't Tase Me, New Jersey Bro! by b0s0z0ku · · Score: 5, Funny
      You mean you can openly disagree with politicians and not get tased? Weird.


      In NJ -- sure. Tasers are actually illegal here, even for police use. Shot on the other hand...


      -b.

  4. First amendment does not prevent lawsuits ... by AHumbleOpinion · · Score: 4, Informative

    ... with all the pointelss lawusits ... The Internet should be a place where people can talk about themselves and how they feel about something without the fear of legal action.

    The first amendment does not prevent lawsuits, it merely allows you to publish. You are still liable for what you publish, the laws regarding defamation, libel, slander, etc still apply. The responsibilities and liabilities that apply to paper and ink should apply to the internet as well. When there is sufficient evidence that such a crime/tort has been committed the court should require an ISP to provide information. The issue in this case is really whether such a crime/tort took place. Criticizing a government official for government actions is very different from those of a private person.