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Badger: Free speech over the Internet put to the test

February 15, 2012
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Indiana Lawyer Commentary

 

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By Steven M. Badger

There is nothing like free expression to test how much we truly value that freedom. Views expressed in a free and open exchange are sometimes ugly, mean-spirited or profane. When such expression is unleashed, it requires a deep and abiding commitment to the core value of free expression not to squelch it at its source.

Free expression in this country has withstood repeated assault during times of political upheaval. In a case well known to free speech advocates, Cohen v. California, the United States Supreme Court overturned a man’s conviction of disturbing the peace because he appeared in court wearing a jacket that displayed an obscenity (i.e., “F - - - the Draft”). Justice Harlan’s majority opinion famously observed: “Those in the Los Angeles courthouse [offended by the jacket] could effectively avoid further bombardment of their sensibilities simply by averting their eyes.” 403 U.S. 15, 21 (1971).

In our online 21st century world, averting our eyes is more difficult to do as we are bombarded by tweets, text messages, blogs and email. The availability and efficiency of the Internet makes it a potent weapon. If “the pen is mightier than the sword,” the tweet is thermo-nuclear. Yet, the technological development of the Internet should not change our society’s commitment to free expression.

Reactionaries among us are pushing back on what they view as expression run amuck. These folks compare the Internet to a lawless “Wild West” in which reputations can be shot with virtual impunity. Free speech advocates, on the other hand, liken the Internet to a super political pamphlet offering free world-wide publication for citizens wishing to express their views on public issues. These competing views of the Internet are being argued in full force in courtrooms around the country, including Indiana.

In Oregon, a federal jury recently awarded a lawyer a $2.5 million defamation verdict against self-styled “investigatory blogger” Crystal Cox. Cox authored a number of highly critical blogs about attorney Kevin Padrick and his investment firm, Obsidian Finance, using such unimaginative names as obsidianfinancesucks.com. Cox’s more lucid blog entries accused Padrick of misconduct while acting as bankruptcy trustee of a failed financial company. Full of name-calling and venom, not to mention misspellings and bad grammar, Cox’s blog would have presented a challenge for even the most persuasive First Amendment lawyer to defend. (Cox defended herself without legal representation.)

As outrageous and unsupported as Cox’s blogs may be, the verdict is troubling because of the strict liability standard the court applied. The court held Cox liable for defamation without regard to whether she knew or should have known what she wrote was false. Well-established First Amendment protection bars liability against a media defendant without some showing of fault or negligence. An even higher burden of proof, knowing falsity or reckless disregard, applies when the plaintiff is a public official or public figure or when punitive damages are imposed. The federal District Court judge concluded, however, that Cox was not entitled to such First Amendment protections because she was not a member of the news media. The court noted that Cox failed to show she had any journalistic training or followed any “journalistic standards such as editing, fact-checking or disclosures of conflicts of interest.”

Closer to home, the Indiana Court of Appeals will soon decide whether and under what circumstances a plaintiff in a defamation lawsuit may require a non-party media organization to identify the author of anonymous comments to news stories published on the organization’s website. A Marion Superior Court ordered The Indianapolis Star to comply with a subpoena demanding the newspaper identify who commented anonymously to a news story on the newspaper’s website. The plaintiffs, Jeffrey and Cynthia Miller, allege that Jeffrey Miller’s former employer, Junior Achievement, Junior Achievement’s current president (Miller’s successor) and others defamed him by accusing him of financial mismanagement (or worse) in connection with certain Junior Achievement projects. The Indianapolis Star covered the controversy and its online publication of its news stories attracted a number of anonymous, online comments, some of which are the subject of the Millers’ lawsuit.

The appeal focuses on one particular commenter who’s been identified only by the pseudonym, “DownWithTheColts.” That commenter wrote: “This is not JA’s responsibility. They need to look at the FORMER president of JA and others on the ELEF board. The ‘missing’ money can be found in their bank accounts.”

This anonymous post was mild in comparison to those posted by known commenters who the Millers are already suing. Nevertheless, the Millers have forced the issue by arguing that The Indianapolis Star (which is immune from suit under the Communications Decency Act) should not be permitted to withhold the identity of “DownWithTheColts” and deny the Millers the opportunity to add another name to the caption of their lawsuit.

Neither “DownWithTheColts” nor “investigatory blogger” Cox will ever be confused with Publius, the penname some of our Founding Fathers used to publish the Federalist Papers, or other great American political writers. But expressive freedom cannot be conditioned on content or viewpoint. It is not such a distant slip down the slope to censorship commonly seen in other countries, even other democracies. France, for example, recently made it a crime punishable for up to a year in prison to deny that the Ottoman Empire committed genocide against Armenians during World War I.

It is unfortunate that some act irresponsibly in expressing themselves on the Internet. However, our First Amendment rights are too fragile and too precious to be watered down or jeopardized because of the irresponsible actions of a small minority of the populace. Free expression is certainly not free of costs. There is a price we must pay, but in my view, the benefits of living in a free society are well worth it.•
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Steven Badger is a partner in the Bose McKinney & Evans Litigation Group and concentrates his practice on business litigation and appeals. He represents and advises media organizations, journalists and writers regarding the First Amendment, defamation law, newsgathering, access to public records and hearings, copyright law and other media law matters. The opinions expressed are those of the author.
 

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  1. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  2. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  3. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  4. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  5. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

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