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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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