Thursday, October 06, 2005
Shouting Fire in the theater
This legal case baffled me on first glance because if ever anyone was guilty of defamation, a group of anonymous bloggers were and deserved legal action against them.
In a series of obscenity-laced tirades, the bloggers, among other things, pointed to Cahill's "obvious mental deterioration," and made several sexual references about him and his wife, including using the name "Gahill" to suggest that Cahill, who has publicly feuded with Smyrna Mayor Mark Schaeffer, is homosexual.
In June, the lower court judge ruled that the Cahills had established a "good faith basis" for contending that they were victims of defamation and affirmed a previous order for Comcast to disclose the bloggers' identities.
That seems simple enough and fair. What the higher court overruled, though, was not the right of the plaintiffs from bringing an action against the bloggers, but that the anonymous bloggers should have been informed prior to their identities being exposed.
Under the standard adopted by the Supreme Court, a plaintiff must first try to notify the anonymous poster that he is the subject of subpoena or request for a court to disclose his identity, allowing the poster time to oppose the request. The plaintiff would then have to provide prima facie evidence of defamation strong enough to overcome a summary judgment motion.
"The decision of the Supreme Court helps provide protection for anonymous bloggers and anonymous speakers in general from lawsuits which have little or no merit and are filed solely to intimidate the speaker or suppress the speech," said David Finger, a Wilmington attorney representing John Doe No. 1.
I seriously disagree with these statements, though:
Steele noted in his opinion that plaintiffs in such cases can use the Internet to respond to character attacks and "generally set the record straight," and that, as in Cahill's case, blogs and chatrooms tend to be vehicles for people to express opinions, not facts.
"Given the context, no reasonable person could have interpreted these statements as being anything other than opinion. ... The statements are, therefore, incapable of a defamatory meaning," he wrote.
Defamation, slander, and libel are much too easily excused under Steele's umbrella. You can say anything about someone else, but then claim it's only an opinion. I didn't really mean that you are a Nazi, racist, fascist, illegitimate glutton and pedophile when I published that statement. That's just my opinion of you.
I'm sorry, as much as I approve of free speech, anything does not go when attacking someone you dislike or disagree with.
posted by Mark Butterworth |