You be the Judge

[IH Geek [Dave]]

Just stumbled onto this board.

The InfoSpace site that is referred to in the 2TheMart case was none other than Silicon Investor. That was right after InfoSpace bought Go2Net, which had previously purchased SI from the Dryers. iHub later bought SI from InfoSpace and then sold it last year.

Truthseeker's identity is widely known as he has been at the sharp end of subpoenas and lawsuits many times.

[greedy__malone]

http://investorshub.advfn.com/boards/read_msg.aspx?message_id=53208777

[scion]

http://investorshub.advfn.com/boards/read_msg.aspx?message_id=53187504

[greedy__malone]

Nothing yet from them but they are West Coast so I assume to see something from them later today.

[Stock]

Has the EFF made any comment on the situation at all?

[greedy__malone]

President signs 'libel-tourism' bill

By The Associated Press
08.11.10

WASHINGTON — President Barack Obama on Aug. 10 signed into law a bill protecting American authors, journalists and publishers from foreign libel judgments that undermine free speech.

Some countries with weak free-speech protections make it easy to sue foreigners for libel — a practice known as “libel tourism.”

Under the new law, H.R. 2765, U.S. federal courts would be prevented from recognizing or enforcing a foreign judgment for defamation that is inconsistent with freedom of speech as guaranteed by the First Amendment. Defendants in foreign cases can obtain a U.S. court order declaring that a foreign judgment would not be enforceable under American law.

[greedy__malone]

Yahoo doesn’t have to reveal e-mailer's identity

By David L. Hudson Jr.
First Amendment scholar
08.09.10

A high school teacher cannot force Yahoo to reveal the identity of an anonymous individual who sent him disparaging e-mails, a New Jersey appeals court has ruled.

Tom Juzwiak, a high school teacher at Hightstown High School, received an e-mail on July 23, 2009, from someone called “Josh Hartnett” with the e-mail address [e-mail]. The e-mail read in the subject line: “Hopefully you will be gone permanently.” The body of the message read: “We are all praying for that.” It was signed only “Josh.”

The anonymous person sent Juzwiak another e-mail on Aug. 11. The subject line read: “I hear Friday is ‘D’ day for you.” The body of the message began: “I certainly hope so. You don’t deserve to be allowed to teach anymore. Not just in Hightstown but anywhere … .”

Finally, the unidentified individual sent an Aug. 13 e-mail criticizing Juzwiak and his teaching abilities to many individuals in the community. Part of it read: “I am not urging anyone to speak out against Mr. J but I urge you to then be silent as we can not continue to allow the children of this school system nor the parents to be subjected to his evil ways.”

Juzwiak filed a lawsuit on Aug. 20 for intentional infliction of emotional distress and harassment against a “John/Jane Doe” defendant. Juzwiak also served a subpoena on Yahoo to force the Internet service provider to reveal the e-mailer’s identity. According to the opinion, “Yahoo notified its subscriber that it had received the subpoena and the subscriber, proceeding as ‘John/Jane Doe,’ moved to quash that subpoena.”

“John/Jane Doe” asserted the First Amendment right to engage in anonymous online speech and contended that Juzwiak had not established the validity of his claims. A trial court disagreed and ordered Yahoo to unveil the source.

The defendant moved for reconsideration, which the trial court denied. However, the trial court did grant the defendant’s motion for a stay pending appeal. That means Yahoo did not have to comply with the subpoena until the appeals court had examined the issue.

On appeal, the Superior Court of New Jersey, Appellate Division, reversed the trial court in its Aug. 3 opinion in Juzwiak v. John/Jane Doe. The appeals court acknowledged that it had to balance Juzwiak’s right to protect his reputation and interests against the defendant’s First Amendment right to speak anonymously.

Juzwiak had also argued that the e-mails were threats not protected by the First Amendment, particularly the first message that read, “Hopefully you will be gone permanently.”

The appeals court rejected the argument that the e-mail was a true threat. “Nothing within the first message, in our judgment, can realistically be understood to constitute a threat to plaintiff’s safety or well-being.”

Next the appeals court examined whether Juzwiak had presented enough evidence that the defendant had committed intentional infliction of emotional distress, a civil cause of action — or tort — in which a person purposely or recklessly causes someone severe emotional distress with outrageous conduct that goes beyond all bounds of decency.

The appeals court applied the standard from Dendrite Int’l Inc. v. John Doe, another New Jersey appeals court case from 2001 that addressed whether a plaintiff could force an ISP to reveal the identity of an anonymous online speaker. In Dendrite, the New Jersey Superior Court, Appellate Division, reasoned that before requiring an ISP to reveal one of its subscribers, the plaintiff had to “produce sufficient evidence supporting each element of its cause of action.” If the plaintiff could meet this burden, then the court must balance the defendant’s free-speech rights against the plaintiff’s legal need for disclosure.

Applying the Dendrite standard, the appeals court in the Juzwiak case determined that Juzwiak had not met all the basic elements of an intentional infliction of emotional distress claim. He had not shown that the defendant’s e-mails were extreme and outrageous enough, the court said: “Expressions of anger, without more, are not extreme or outrageous.”

The appeals court also noted that Juzwiak had not presented information on any efforts on his part to try to identify the unknown “Josh.” The court said Juzwiak failed to show that he had looked at a local telephone book, voting records or names of individuals active in the high school’s affairs or students with whom he may have had difficulties.

[greedy__malone]

N.C. court won't force newspaper to I.D. online commentator

By The Associated Press
08.02.10

CHARLOTTE, N.C. — A North Carolina judge has ruled that news organizations do not have to release the identities of people who make comments on their online news articles.

Gaston County Superior Court Judge Calvin Murphy ruled the Gaston Gazette did not have to tell the attorney for a murder suspect who a commentator was on an article about the case.

The identity of a commentator had been sought by an attorney for Michael Mead, who is charged with shooting his fiancee Lucy Johnson twice in the back of the head then burning her house down to conceal the crime in 2008.

Mead’s attorney had sought the identity of someone who left an online comment on the newspaper’s website. The comment listed information related to a lie-detector test taken by the murder suspect, said attorney John Bussian, who represents the Gazette.

The judge’s order issued July 27 cites the First Amendment and North Carolina’s shield law that protects news-gatherers from having to release the identities of its sources, the Charlotte Observer reported July 31.

“The Gazette and (publisher Julie) Moreno have a qualified privilege against compelled disclosure of ... identifying information collected by The Gazette from posters to its website,” the order said.

The order also said Mead’s attorney did not demonstrate the information sought could not be obtained elsewhere and was essential to his defense.

“The press can operate freely without the worry that someone is going to go into the whole comment-posting and editorial process and shine a light, stare over your shoulder and make you think twice about what you’re going to say,” Bussian said.

An attorney for the North Carolina Press Association said the ruling provided significant protection against release of commentator information to a third party but did not cover all online comments.

“The shield law is a case-by-case analysis,” Martin said. “It is not a blanket prohibition on compelled information. But it sets out a threshold or a standard before the court can order information turned over.”

[greedy__malone]

Congress votes to protect U.S. authors from foreign libel judgments

By The Associated Press
07.28.10

WASHINGTON — Congress yesterday passed a bill that would protect American authors, journalists and publishers from foreign libel judgments that undermine the U.S. guarantee of free speech.

The House approved the legislation by voice vote and sent it to President Barack Obama.

Under the bill, H.R. 2765, U.S. federal courts would be prevented from recognizing or enforcing a foreign judgment for defamation that is inconsistent with freedom of speech as guaranteed by the First Amendment.

Defendants in foreign cases could obtain a U.S. court order declaring that a foreign judgment would not be enforceable under American law.

The bill’s sponsor, Rep. Steve Cohen, D-Tenn., says foreign defamation laws lack the free-speech protections of the U.S. Constitution.

http://www.firstamendmentcenter.org/news.aspx?id=23206

[greedy__malone]

Ousted USDA employee Sherrod plans to sue blogger

SAN DIEGO – Ousted Agriculture Department employee Shirley Sherrod said Thursday she will sue a conservative blogger who posted a video edited in a way that made her appear racist.

Sherrod was forced to resign last week as director of rural development in Georgia after Andrew Breitbart posted the edited video online. In the full video, Sherrod, who is black, spoke to a local NAACP group about racial reconciliation and overcoming her initial reluctance to help a white farmer.

Speaking Thursday at the National Association of Black Journalists convention, Sherrod said she would definitely sue over the video that took her remarks out of context. Agriculture Secretary Tom Vilsack has since offered Sherrod a new job in the department. She has not decided whether to accept.

Sherrod said she had not received an apology from Breitbart and no longer wanted one. "He had to know that he was targeting me," she said.

Breitbart did not immediately respond to a call or e-mails seeking comment. He has said he posted the portion of the speech where she expresses reservations about helping the white farmer to prove that racism exists in the NAACP, which had just demanded that the tea party movement renounce any bigoted elements. Some members of the NAACP audience appeared to approve when Sherrod described her reluctance to help the farmer.

The farmer came forward after Sherrod resigned, saying she ended up helping save his farm.

Vilsack and President Barack Obama later called Sherrod to apologize for her hasty ouster. Obama said Thursday that Sherrod "deserves better than what happened last week."

Addressing the National Urban League, he said the full story Sherrod was trying to tell "is exactly the kind of story we need to hear in America."

Obama has acknowledged that people in his administration overreacted without having full information, and says part of the blame lies with a media culture that seeks conflict but not all the facts.

At the journalists convention, Sherrod was asked what could be done to ensure accurate coverage as conservatives like Breitbart attack the NAACP and other liberal groups.

Sherrod, 62, responded that members of her generation who were in the civil rights movement "tried too much to shield that hurt and pain from younger people. We have to do a better job of helping those individuals who get these positions, in the media, in educational institutions, in the presidency, we have to make sure they understand the history so they can do a better job."

She said Obama is one of those who need a history lesson.

"That's why I invited him to southwest Georgia. I need to take him around and show him some of that history," Sherrod said.

Sherrod said the description of the new job she has been offered in the office of advocacy and outreach was a "draft," and she questioned whether any money had been budgeted for its programs.

"I have many, many questions before I can make a decision," she said.

Despite her experience, Sherrod said she believes the country can heal its racial divisions — if people are willing to confront the issue.

"Young African-Americans, young whites, too, we've done such a job of trying to be mainstream that we push things under the rug that we need to talk about. And then we get to situations like this," she said.

"I truly believe that we can come together in this country. But you don't (come together) by not talking to each other. You don't get there by pushing things under the rug."

Sherrod said her faulty firing should not be blamed on all media.

Before the full video was released, Fox News host Bill O'Reilly said Sherrod should be fired, and others called her speech racist. O'Reilly later apologized.

"They had a chance to get the facts out, and they weren't interested," Sherrod said.

She said she declined to give Fox an interview because she believed they were not interested in pursuing the truth. "They would have twisted it," she said.

A Fox News spokesperson did not immediately respond to a request for comment.

http://news.yahoo.com/s/ap/us_usda_racism_resignation

[greedy__malone]

LIGATT Security Tries to Silence its Online Critics With an Unsubstantiated Lawsuit
Legal Analysis by Kurt Opsahl

LIGATT Security, a controversial Georgia-based computer security firm, is embroiled in an ongoing flame war with its online detractors, who question the firm's legitimacy and stock prospects. Earlier this month, LIGATT upped the ante by filing suit in a Georgia court, threatening about 25 anonymous commenters on Yahoo! Message Boards and demanding a $5 million judgment and a court order prohibiting criticism. LIGATT CEO warned that he hoped the lawsuit would "set a trend" for other OTC companies facing online critics.

We hope not. EFF is frequently called upon to help protect the rights of anonymous speakers in similar suits, and the world does not need more facially deficient lawsuits targeting online critics. As we explain below, this complaint is a prime example of a case that should be dismissed. And, if LIGATT attempts to use this complaint to subpoena Yahoo! for the identities of its critics, the subpoenas might not only fail, but LIGATT may be forced to pay its critics' attorneys' fees.

It is not surprising that LIGATT has attracted controversy and commentary. The publicly traded company is headed by Gregory Evans, a self-described "media personality" who calls himself the "World's #1 Hacker." Evans' books include "Memoirs of a Hi-Tech Hustler," an account of the exploits that landed him in federal prison, and "How to Become the World's No. 1 Hacker," an allegedly plagiarized introduction to computer security. LIGATT has published provocative online videos advertising its services. And this is not the first time LIGATT has been criticized over its litigation.

The important legal question at this point, however, is not whether LIGATT's critics are right or wrong, but whether the complaint sets forth a valid claim. It does not. LIGATT and Evans' complaint asserts three primary claims: defamation, commercial disparagement, and "tortuous interference with contractual relations," which is a way of accusing the defendants of hurting its business relationships. The company also seeks an injunction against the defendants from posting any further defamatory comments against LIGATT Security, its subsidiary SPOOFEM.COM, or its CEO Evans, and demands $5 million dollars in damages. The alleged damages are double the most recent "Estimated Market Cap" for the whole company listed on its investor relations page.

Curiously, while LIGATT's press release announcing the lawsuit and the accompanying video claim the suit was filed against "stock bashers," the complaint never once references the company's stock or alleges stock manipulation. While federal and state law prohibit certain forms of stock manipulation, criticizing a publicly traded company and its CEO is not a valid legal cause of action in and of itself.

In its complaint, LIGATT claims the defendants posted "false and defamatory statements" on the Yahoo Technology message board and a few other websites. But the purported defamatory statements are never identified in the complaint, much less set forth. There is no attempt to tie each of the defendants to particular statements. Under long-standing Georgia law, failure to clearly identify defamatory statements in a complaint is grounds for dismissing a defamation claim (with leave to amend). The allegation in this complaint is insufficient because it is just a bald conclusion that the unidentified statements are "false and untrue and defamed Plaintiffs." Under Georgia law, libel complaints are subject to a strict standard, and "allegations ... characterizing the publication as libelous and libelous per se are mere conclusions not supported by the pleaded facts" that must be dismissed.

Similarly, if the defendants were to move this case to a federal court (which may be possible if the defendants are not from Georgia), allegations of specific statements would be required and the complaint would be dismissed under the federal pleading standard that requires more than "conclusory allegations" and "legal conclusions masquerading as facts" (recently explained in two Supreme Court decisions, commonly known as Iqbal and Twombly).

LIGATT's "commercial disparagement" claim is simply a variation of the original defamation claim, and hangs on the same unidentified "false and defamatory statements" thread. The court should dismiss the claim for the same reasons. Moreover, even if the actual statements were pled, a federal court in Georgia recently noted that Georgia law does not support this type of claim, and a Georgia Supreme Court opinion both refused to recognize the similar tort of injurious falsehood and held that plaintiffs could not recover twice under two theories.

The complaint’s final substantive claim, accusing the defendants of interfering with LIGATT's business contracts, would also fail because LIGATT must identify wrongful conduct and provide facts, not legal conclusions, to support the cause of action. The complaint, however, does not identify any wrongful conduct on the part of the defendants beyond the deficient defamation claim. This claim should fall with the rest of the house of cards.

California’s anti-SLAPP law is another hurdle for LIGATT. Most of the defendants are anonymous Does, who have exercised their constitutional right to speak pseudonymously online. To the extent that LIGATT wants to issue subpoenas to Yahoo!, located in California, to uncover the identities of the posters on the message board, LIGATT would be wise to realize that California law mandates attorneys' fees for anyone who prevails in quashing or modifying such a subpoena, if the underlying action involves the person's online free speech rights and the plaintiff does not make a prima facie showing of the cause of action.

When courts, both in California and throughout the country, consider whether to allow a subpoena to unmask an anonymous speaker, they use a First Amendment test that requires the plaintiffs to show they have a real case. As explained above, the complaint fails to allege sufficient facts to do so. Moreover, since the plaintiffs would likely be considered public figures for purposes of this lawsuit, LIGATT would have to show a prima facie case for actual malice--a significant and difficult hurdle to overcome.

Through this lawsuit and its press release, LIGATT is affirmatively seeking to encourage and extend a disturbing trend of using the legal system as a weapon to intimidate online critics. Often, these deficient lawsuits are used to unmask online critics, even when those critics are engaged in constitutionally protected speech. LIGATT's complaint is rife with conclusory allegations and exemplifies the deficiencies with most of these lawsuits. LIGATT should voluntarily dismiss this lawsuit, and not refile unless and until it can state a valid claim that a critic has actually violated the law, quoting specifically the allegedly defamatory speech and alleging facts that show how the quoted speech is false, defamatory and was made with actual malice.

http://www.eff.org/deeplinks/2010/07/ligatt-security-tries-silence-its-online-critics

[greedy__malone]

Quasar Aerospace Industries, Inc. Announces Intent to Sue Alleged Stock Manipulators and IHUB, and Announces the Setting of the


Quasar Aerospace Industries, Inc. (PINKSHEETS: QASP) -- The Board of Directors of Quasar Aerospace Industries, Inc. met in a special session on July 15, 2010. After consultation with both our securities and general counsel, the Board unanimously approved authorization for the CEO, Dean Bradley, to retain a special litigation law firm to sue a number of alleged stock manipulators and IHUB for alleged stock manipulation and slander.

In addition, the Board set the time and date for the Annual Meeting as October 8, 2010 at 12:00 P.M. (E.S.T.). The Annual Meeting location shall be at Deerwood Country Club in Jacksonville, Florida. Further instructions will be delivered soon.

There will be a conference call at 4:00 P.M. on Tuesday, July 20, 2010. The call coordinates will be announced in a Press Release on Monday, July 19, 2010.

This press release contains "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended and such forward-looking statements are made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. You are cautioned that such statements are subject to a multitude of risks and uncertainties that could cause future circumstances, events, or results to differ materially from those projected in the forward-looking statements as a result of various factors, and other risks. You should consider these factors in evaluating the forward-looking statements included herein, and not place undue reliance on such statements. The forward-looking statements in this release are made as of the date hereof and Quasar Aerospace Industries, Inc. under take no obligation to update such statements.

Contact:

Quasar Aerospace Industries, Inc.

[e-mail]

[Stock]

Blog Platform Shut Down Because Of Al-Qaeda Material -Host

Last update: 7/20/2010 10:45:54 AM

WASHINGTON (AFP)--An Internet hosting service said Tuesday that it shut down a blogging platform because bomb-making instructions and an al-Qaeda "hit list" had been posted on the site.

BurstNET, a Pennsylvania-based Web hosting service, said that it shut down Blogetery.com earlier this month after U.S. law enforcement officials pointed out the al-Qaeda material on the platform used by some 70,000 bloggers.

In a statement, BurstNET said it was asked by law enforcement officials on July 9 to provide information about the ownership of the server hosting Blogetry.com.

"It was revealed that a link to terrorist material, including bomb-making instructions and an al-Qaeda 'hit list,' had been posted to the site," BurstNET said.

"Upon review, BurstNET determined that the posted material, in addition to potentially inciting dangerous activities, specifically violated" the company's terms of use, BurstNET said. "This policy strictly prohibits the posting of 'terrorist propaganda, racist material, or bomb/weapon instructions,'"

BurstNET said. "Due to this violation and the fact that the site had a history of previous abuse, BurstNET elected to immediately disable the system," it said.

The unidentified operator of Blogetary.com complained in a post on a Web forum that the service had been cut off without explanation.

"After being a BurstNet customer for 7 months our server was terminated without any notification or explanation," the operator said.

(END) Dow Jones Newswires
July 20, 2010 10:45 ET (14:45 GMT)

[greedy__malone]

EFF Urges Court to Block Dragnet Subpoenas Targeting Online Commenters
Privacy and Anonymity at Risk in New York Conspiracy Suit

New York - The Electronic Frontier Foundation (EFF) this week served a motion to quash dragnet subpoenas that put privacy and anonymity at risk for the operators of dozens of Internet blogs and potentially hundreds of commenters.

The subpoenas stem from a state lawsuit filed by New York residents Miriam and Michael Hersh alleging a conspiracy to interfere with their business interests. Issued to Google and Yahoo, the subpoenas demand the identities of users of ten email accounts, operators of 30 blogs and a website that had featured discussions of the plaintiffs among other matters, and the identities of everyone who had ever commented on those sites.

"The First Amendment protects individuals' right to speak anonymously and forces litigants to justify any attempts to unmask anonymous critics," said EFF Senior Staff Attorney Matt Zimmerman. "Litigants cannot forcibly identify entire communities of online speakers -- which include many speakers who no one would claim did anything wrong -- simply because the litigants are curious."

In the motion served on Monday, EFF urged the Supreme Court for Kings County, New York, to quash the subpoenas for failing to satisfy the requirements imposed by the First Amendment, as well as the requirements imposed by New York state law and the federal Stored Communications Act.

"Overbroad subpoenas targeting anonymous speakers without cause naturally creates a chilling effect that may discourage others from exercising their constitutional rights to participate in conversations that take place online," said Zimmerman. "We are asking the court to enforce these reasonable safeguards so that the rights of innocent speakers do not become collateral damage in a dispute between others."

Ron Lazebnik and the Samuelson-Glushko Intellectual Property & Information Law Clinic at Fordham University School of Law assisted EFF in the serving of this motion.

For the full motion to quash:
http://www.eff.org/files/filenode/hersh_v_cohen/UOJ-motiontoquashmemo.pdf

Contact:

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
[e-mail]

[greedy__malone]

Senate bill would block some foreign libel suits

By The Associated Press,
First Amendment Center Online staff
07.14.10
WASHINGTON — American authors, journalists and publishers would be protected from some foreign libel suits under legislation approved unanimously yesterday by the Senate Judiciary Committee.

The bill would prevent a U.S. federal court from recognizing or enforcing a foreign judgment for defamation that is inconsistent with the First Amendment's free-speech guarantee.

Another provision would allow the defendants to obtain a U.S. court order declaring a foreign judgment would not be enforceable under American law.

The legislation "ensures that American journalists, authors and publishers are protected from foreign libel lawsuits that chill their First Amendment rights," said Sen. Patrick Leahy, D-Vt., the committee chairman.

"The First Amendment is a cornerstone of American democracy," Leahy said. "Freedom of speech and the press enable vigorous debate over issues of national importance, and enable an exchange of ideas that shapes our political process."

The legislation was introduced after the 2nd U.S. Circuit Court of Appeals and a New York state court ruled that author Rachel Ehrenfeld could not stop a Saudi billionaire from trying to enforce a British libel verdict against her in the United States. Ehrenfeld wrote a book, Funding Evil, about terrorist financing and billionaire Khalid Salim A. Bin Mahfouz.

The bill, S. 3518 — Securing the Protection of our Enduring and Established Constitutional Heritage Act (SPEECH Act) — was introduced in June by Leahy and Jeff Sessions, R-Ala. It would invalidate libel judgments levied against Americans elsewhere that could not have been obtained in the United States due to First Amendment protections. It does not go as far as other libel tourism bills under consideration in Congress that would allow libel defendants to counter-sue the plaintiffs who bring such claims against them in foreign courts, which makes the bill less controversial and possibly more appealing to members of Congress.

The judiciary committee's approval opens the door to full Senate consideration. The House has already passed its own version of the bill (H.R. 2765) by voice vote.

[greedy__malone]

HOW TO DEAL WITH SLAPPs

If you find yourself the target of a SLAPP, don't panic! Many other people have been in your position, and there are individuals and organizations out there that can help you.
What to Expect Initially

If you are the target of a SLAPP, you may receive a demand letter from the lawyer representing the SLAPP filer which lists a series of "options" you must meet to resolve the matter before a lawsuit is actually filed. Often, the letter will demand a sum of money, an apology (generally public), your agreement to refrain from speaking out or participating in the future, your agreement not to bring a lawsuit against the SLAPP filer, or a combination of these and other things.

The more likely scenario is that you will learn of the SLAPP when you are personally presented with a "Summons" and "Complaint" at home or work. The Complaint will list the specific "wrongs" you are alleged to have committed. Look for the legal jargon: words like "libel," "slander," "interference with contract," etc., which are briefly defined above.

The Summons is a notice, telling you that you have been sued; it will give a deadline (usually 30 days) within which you must file a formal response to the Complaint with the court.
Locate and Hire an Attorney

It is always best to find an attorney to represent you.. Do not try to handle the case yourself! Being sued, especially with a SLAPP, is very serious business. An attorney may be able to effectively end the litigation at the very beginning of the lawsuit, minimizing the emotional and psychological stress that can result from being sued, and saving you tremendous amounts of time and money.

Act Early. Do not wait until just before the formal response to the Complaint is due to start looking for an attorney. Lawyers are busy, too, and need some time to assess your case. Waiting until the last minute to find a lawyer to help you will only add stress to an already stressful situation.

If you find yourself pressed for time, keep in mind that the attorney who files your formal response to the Complaint does not have to be the attorney who will eventually represent you in court. At the very least, find a lawyer who can help you draft and file a response to the Complaint on time. If you miss this deadline, the Court can enter judgment against you, without first considering all the arguments in your defense. If a judgment is entered against you, you may have to pay the SLAPP filer for any damages that are being claimed as a result of your activities! DEADLINES CONTAIN THE WORD "DEADL[Y]," AND SHOULD BE TREATED AS SUCH. THEY CANNOT BE MISSED.
But Lawyers Cost Money

It should come as no shock that most lawyers expect to get paid for their work. Yet, even without increasing fee rates demanded by attorneys, defending a case is extremely expensive. Costs associated with a typical case include court costs, photocopying services, postage, delivery services, telephone, expert witness fees, deposition fees and other costs. You must consider how these costs will be paid.

The attorney you select should be in a good position to tell you how much he or she estimates defending you will cost. Lawyers are often flexible on how they expect to paid. Do not be afraid to discuss alternative payment terms with the lawyer and with an eye to your pocketbook. Some lawyers will agree to take your case on a contingency basis. This means that the lawyer will be paid only if you either win the case and the court rules that the SLAPP filer must pay your attorneys' fees or you successfully bring a lawsuit against the SLAPP filer for damages suffered by you as a result of being the target of a SLAPP (This is generally referred to as a "SLAPPback.")

If you are sued as a result of expressive activity undertaken on behalf of a group, check on whether the group has insurance which may cover you, maintains a legal defense fund, or is willing to help defray legal costs by doing fundraising on your behalf.
Some attorneys will agree to defend you on a pro bono (free) or low cost (reduced hourly attorney fee rate) basis. One way to find pro bono or low cost legal services is to check the Where To Find Help section of this handbook. Be forewarned, however, that the law requires that you remain responsible for paying all legal costs associated with the case, such as filing fees and court costs. This is true even if the attorney agrees to work for you for free.

Now the good news. Under the new California anti-SLAPP law, you will be entitled to recover legal fees, court costs, and other expenses if the judge rules that the SLAPP filer cannot show a probability of winning the suit. Thus, even if you can't afford to pay hourly attorney fee rates, an attorney will often be encouraged to defend you on a pro bono, contingency, or low cost basis if he or she understands that attorney fees will be paid by the SLAPP filer if you win.
Insurance: Defense vs. Coverage

In many cases, your homeowner's liability insurance policy will require the insurance carrier to defend you if you are sued. Consult your carrier and an outside attorney to see if you are covered. If so, the carrier will provide a lawyer to help you. This will mean you will not be required to pay legal fees for legal representation. Be aware, however, of two consequences of such an arrangement. First, the company attorney will be inclined to reflect the carrier's position, which may not always be in line with what you want. Second, there is a difference between the insurance company providing you with a defense and ultimately paying any judgment entered against you. The company may defend you, but reserve its rights not to pay the judgment if it later determines the judgment is not covered by your policy.
Factors Determining the Right Representation for You

Finding the right attorney will take a little bit of work and energy on your part. There are a number of factors to consider:

*
Sympathetic. It is helpful to find a lawyer who shares or understands your politics, or at least someone who will listen and understand why you said or did what you did. Conflicts over differing philosophies, gender bias, or political beliefs are not only time consuming, they may affect the kind of representation you will receive.

*
Experienced. Find someone who has experience defending SLAPP victims or who is familiar with the legal and factual issues of your case. This can be critical to your case both in terms of costs and time. Ask the lawyer if he or she has worked on these kinds of cases before, and what kind of experience that lawyer has generally. You may also ask if the lawyer would mind if you speak to other clients and/or SLAPP victims the attorney has represented in the past.

*
Willing to Share the Load. It is important to remain involved in the decision-making process throughout all the stages of the lawsuit. Do not be afraid to ask about the potential ramifications of all legal and strategic decisions before authorizing your attorney to take action on your behalf.

*
Media Savvy. It may also be helpful if the attorney is used to dealing with the press. Often these kinds of cases generate a lot of media interest. The right kind of media visibility will help your case. The wrong public image, however, could be devastating.

*
Compatible. Often, you must ultimately decide if you will be satisfied with the prospective attorney. It is very important that you be able to work with the attorney comfortably. You may well be spending more time with this person than you know.

The Mechanics of Finding a Good Lawyer

Take the time to gather all information you can and present it to prospective attorneys. Ideally, the attorney should have a complete a picture of the relevant facts of the case and any legal matters pertaining to the case that you may be aware of.

*
Case package. Create a neat package of information that you can present to potential attorneys; it may include:

1.
a brief cover letter which is respectful of the attorney's time, focuses on the key issues in your case, and states, specifically, what you would like the lawyer to do for you.
2.
a copy of the demand letter, Complaint or any other official document you received from the SLAPP filer or his or her lawyer.
3.
the names of any attorneys who may have advised or represented or advised you in this action, and how to contact them.
4.
the names of the attorney or attorneys representing the SLAPP filer, and how to contact them.
5.
the names of important witnesses, if any.
6.
key newspaper articles or other background information about your case and/or your opponents.

*
Attorney interview. Explain your story as succinctly as possible. You may even wish to practice before the first interview. Have you own list of questions ready. The list should include questions about the case, as well as questions about the lawyer's experience and interest in similar suits. Become familiar with California's anti-SLAPP statute and ask the attorney if it applies to your case. You may want to learn as much as you can about SLAPPs in general. Your local library is a good source for current literature on the topic. You can also learn more about SLAPPS by contacting one of the agencies listed in the "Where to Find Help" section of this page.

THE LEGAL PROCESS - DEFENDING A SLAPP

There are several stages to SLAPP litigation. The following is a list of the key events you can expect in defending a SLAPP.
Filing a Response

You have a very limited amount of time (typically, 30 days) to file and deliver "an initial responsive pleading." Often, your "first responsive pleading" will be the Answer to the Complaint. This is a formal document detailing your response to each of the allegations in the Complaint. Or, it may be a document which attacks the Complaint on legal or factual grounds, such as a Special Motion to Strike (described below). Remember that your initial response, whether an Answer, a Special Motion to Strike, or other document, must be filed with the Court and delivered to the other side within the deadline specified on the Summons.
Opposing a Temporary Restraining Order.

A SLAPP filer can ask for a temporary restraining order ("TRO") when the Complaint is filed. A TRO is a court order that temporarily orders or prohibits a specific act or series of acts until the court rules on the matter. A TRO is of limited duration, usually lasting no more than 20 days. You may get very little notice (24 hours) that a TRO is being sought. As a TRO may impact your ability to speak out on an issue or remain active in important public affairs, it must be vigorously opposed.
Opposing a Motion for Declaratory and Injuctive Relief.

he Complaint may seek declaratory relief, which means that the filer has asked the court to make a ruling on the respective rights and duties of the parties under the circumstances. The Complaint may also seek preliminary or permanent injunctive relief; like a TRO, a preliminary injunction is a temporary order which orders or prohibits a specific act or series of acts until trial. A permanent injunction orders or prohibits an act or acts indefinitely.

A motion for declaratory or a preliminary or permanent injunction requires that all interested parties be given notice of the motion (usually 15 days) and an opportunity to be heard. The crucial issues in a SLAPP are frequently decided on such motions. If the SLAPP filer is seeking such a motion, it must be vigorously opposed.
Bringing a Special Motion to Strike.

California's new anti-SLAPP statute, Code of Civil Procedure § 425.16, gives victims an opportunity to have the court rule at the outset whether a SLAPP filer can show a probability of winning the suit. If the judge finds that the filer cannot prove that the case has a probability of winning, the court will "strike" the Complaint, and dismiss the suit. The court will also order the filer to pay to the SLAPP victim his or her attorneys' fees and costs.

This special motion generally must be brought 60 days from the date the Complaint is received, and is the best way to put an end to a SLAPP early in the proceedings. The special motion to strike can be brought later than 60 days after the Complaint is received, but only if a court, in its discretion, allows it to be filed at a later time.

Make sure that there is a good basis for bringing the special motion to strike. If the court finds that it is frivolous, or brought only for purposes of harassment or delay, the court will sanction you, and order you to pay the amount of attorneys' fees and costs incurred by the other side in opposing your motion.
Dealing with Discovery.

Discovery is the term for the process in which parties to litigation gather information from each other. This is accomplished by depositions, in which individuals are orally questioned by lawyers, under oath, as if on the witness stand, or by interrogatories, which are written questions by one party to the other and which require a written answer, also under oath. Parties may also ask that any important documents be turned over; this is known as a request for production of documents. The process of discovery can take months to complete.

Under the special motion to strike procedure of Code of Civil Procedure § 425.16, described above, all discovery is suspended or stayed until a judge rules on the special motion to strike. This means that all discovery must be halted until the judge rules. This is important because even the process of having to answer discovery requests can impact one's willingness to oppose a project or speak out on public issues. However, if you believe the other side has information necessary to your defense, you will be unable to get it once the special motion to strike is filed. Carefully consider whether there is information you may need before filing the special motion to strike. Alternatively, the court, upon a formal request and for good cause shown, may order that a specified course of discovery be conducted.
Arbitration.

In many counties, once discovery is over, cases are ordered to arbitration. Arbitration is a mini-trial or hearing in which the case is presented to a neutral party -- usually another attorney or a private or retired judge -- who makes a determination and an award. The arbitration ruling can be appealed by either party.
Filing a Motion for Summary Judgment

Upon completion of discovery and following arbitration (where the arbitration procedure is used), any party can bring a motion for summary judgment. This is used to inform the court whether there are any material issues of fact in dispute. If there are no factual issues in dispute, and only issues of law remain, the judge decides the case by interpreting the relevant law. If however, factual disputes remain to be decided -- for example, whether one party or the other is telling the truth -- the case must go to a jury, unless the parties agree that a judge may decide the issue.
Preparing for Trial

If the case cannot be resolved by any of the above procedures, it will be considered in a trial. A jury or judge will hear the evidence, which may include live testimony from each side, and present a final ruling or "judgment."
Judgment and Appeal

After trial, a judgment is entered according to the ruling of the jury or trial judge. If the judgment orders the payment of money from one party to another, there are various mechanisms to enforce the judgment to ensure that payments are made. A final judgment may be appealed to a higher court, by either party, but only upon a showing of some legal error. Generally, the filing of an appeal does not render the judgment automatically unenforceable. To pursue an appeal, the losing party must instead post a bond, often in an amount twice that of the judgment, to secure the judgment during the appeal process.
Pursuing Settlement

An agreement among the parties to resolve the case can be reached before the Complaint is filed, at any time during the litigation, or even after trial.
Mapping Out a General Strategy With Co-Defendants

It is very likely that you will not be the only person being sued by a SLAPP filer. A common strategy is for the filer to sue all vocal opposition. In addition, the SLAPP filer can sue numerous (anywhere between ten and several hundred) as yet unnamed "DOE" defendants. This means that the SLAPP filer can, at any time during the case, replace a "DOE" defendant with a named individual. As a result, others who are sympathetic to your position or cause may be fearful of helping you or continuing to speak out on the issue, because of a concern that at any time they, too, may be sued.

If you are one of a number of people being sued, consider a cooperative defense strategy. Cooperation with other defendants can have a number of benefits. Often, it helps to develop a good and successful defense. In addition, cooperation with others can reduce the stress and financial burden of defending a lawsuit by yourself.

The first step is to come to an agreement with co-defendants about what issues to focus on. Does the litigation seek to impede your work or that of your organization? How important are these goals to your work? Would you be willing to give up your work to settle the case? What if others have used alternative or unlawful means to pursue these common goals -- are you willing to stand with these persons, though you differ as to how specified goals should be accomplished? Consider the significance of the suit -- if the SLAPP filer is successful in silencing you and your friends, will others be silenced too?
Decide how litigation expenses and attorney fees are going to be paid and by whom. If money and resources must be raised, agree upon fundraising efforts, who is responsible for these efforts, and how money will be disbursed from such activities.

Decide at the outset who will be the spokesperson(s) for your case. Spokespeople should be selected with extreme care. Public perception is important in generating interest, support, money, and sympathy. You do not want to take the chance of alienating either the judge, who will be ruling on your case, or potential supporters of your work.

If problems or disagreements arise which cannot be resolved in discussion, it is probably a good idea to split from the group and obtain your own lawyer. There is little advantage to being united with others if your own case is going to suffer.
Dealing with the Press

Whether or not your attorney is experienced in dealing with the press, become familiar with The Press Handbook. This handbook, available through the Media Alliance in San Francisco, California, will show you how to generate positive media coverage and support for your case.

[greedy__malone]

A quick check with the Georgia bar leads me to believe this is the attorney for LGTT.

http://www.linkedin.com/in/moorelawllc

www.moorelawllc.com

Doesn't look to be very well versed in civil liberties cases or the first amendment.

John Moore’s Specialties:

Commercial Litigation, Commercial Bankruptcy, Real Estate (transactional and litigation), and Personal Injury

I'd say, if LGTT files any subpoenas to IHUB and the posters get a decent attorney the quash motion will likely succeed without much of a fight.

I could be wrong but the Georgia bar website lists only 2 "John A Moore" references and one is for a lawyer now practicing in Alabama.

[greedy__malone]

That LGTT suit is filed in Georgia.

9-11-11.1.
(a) The General Assembly of Georgia finds and declares that it is in the public interest to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances. The General Assembly of Georgia further finds and declares that the valid exercise of the constitutional rights of freedom of speech and the right to petition government for a redress of grievances should not be chilled through abuse of the judicial process.
(b) For any claim asserted against a person or entity arising from an act by that person or entity which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern, both the party asserting the claim and the party´s attorney of record, if any, shall be required to file, contemporaneously with the pleading containing the claim, a written verification under oath as set forth in Code Section 9-10-113. Such written verification shall certify that the party and his or her attorney of record, if any, have read the claim; that to the best of their knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; that the act forming the basis for the claim is not a privileged communication under paragraph (4) of Code Section 51-5-7; and that the claim is not interposed for any improper purpose such as to suppress a person´s or entity´s right of free speech or right to petition government, or to harass, or to cause unnecessary delay or needless increase in the cost of litigation. If the claim is not verified as required by this subsection, it shall be stricken unless it is verified within ten days after the omission is called to the attention of the party asserting the claim. If a claim is verified in violation of this Code section, the court, upon motion or upon its own initiative, shall impose upon the persons who signed the verification, a represented party, or both an appropriate sanction which may include dismissal of the claim and an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney´s fee.
(c) As used in this Code section, 'act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern' includes any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.
(d) All discovery and any pending hearings or motions in the action shall be stayed upon the filing of a motion to dismiss or a motion to strike made pursuant to subsection (b) of this Code section. The motion shall be heard not more than 30 days after service unless the emergency matters before the court require a later hearing. The court, on noticed motion and for good cause shown, may order that specified discovery or other hearings or motions be conducted notwithstanding this subsection.
(e) Nothing in this Code section shall affect or preclude the right of any party to any recovery otherwise authorized by common law, statute, law, or rule.
(f) Attorney´s fees and expenses under this Code section may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition, including but not limited to dismissal by the plaintiff, of the action.

http://law.justia.com/georgia/codes/9/9-11-11.1.html

[greedy__malone]

Looks like LGTT is going after some message board posters.

http://www.gwinnettcourts.com/#casedetail/case:10-a-06012-5/

[greedy__malone]

Campaign launches with 'extraordinary support'

By Eugenia Harris
First Amendment Center Online
07.01.10

1 for All — an unprecedented nationwide campaign to build understanding and public support for the First Amendment — launched today with broad media support.

Hundreds of newspapers and Web sites, including USA Today and Google, featured ads, news stories, op-eds and blog posts announcing the new campaign.

“We’re gratified by the extraordinary support for the 1 for All campaign by America’s news and social media,” said Ken Paulson, president of the Newseum and First Amendment Center and a founder of the campaign. “Their efforts in print and online honor one very special piece of parchment.”

Google greeted users of its search engine with an invitation to “Learn about your First Amendment rights with 1 for All” under the search box. It also set up a page. And in a Google blog post, David Drummond, Google’s senior vice president for corporate development and chief legal officer, wrote “Standing up for the First Amendment with 1 for All.”

“In the United States, our lives would be unrecognizable without the First Amendment,” Drummond said. “We’re celebrating the First Amendment on the 1st of July by joining news organizations, artists, librarians, lawyers, educators and many others in supporting 1 for All … . At a time when restrictions on speech are increasing around the globe, we think it’s essential to remind ourselves that we can’t take freedom of expression for granted. Get informed, get involved and stand up with us for the First on the 1st.”

The nonpartisan 1 for All campaign is a collaborative effort of educators, artists, journalists, lawyers, librarians and others who believe the public will benefit from a greater understanding of the First Amendment. 1 for All encourages news media and other organizations to explain the First Amendment and encourage Americans to celebrate and use the freedoms it guarantees: speech, press, religion, assembly and petition.

As part of the launch, more than 300 organizations nationwide committed to carrying public service ads and publicizing the campaign, including many of the nation’s largest news organizations and online companies.

The Associated Press distributed a story about the campaign to its thousands of news-media clients. USA Today ran a full-page ad featuring comedian and TV host Ellen DeGeneres, who supports 1 for All.

Meanwhile, The Houston Chronicle published an op-ed article by Paulson titled “Now’s time to stand up for the First Amendment,” and the Orlando Sentinel asked its readers: “It’s almost Independence Day; do you know your freedoms?”

The Orlando Sentinel also ran an editorial today, “Know your First Amendment freedoms,” in which it touted 1 for All: “Americans who forgot the freedoms because they take them for granted, or who never really learned them in the first place, will get a refresher course similar to the ‘Got milk?’ campaign — a multimedia ad blitz replete with performers, artists, journalists and others who will remind people that the First Amendment’s not some historical relic."

1 for All’s launch also received extensive Web coverage. Yahoo! News’ The Newsroom ran a post about the campaign. CBS Interactive today heavily featured ads promoting the campaign across all of its brands — from CBSSports.com and CBSNews.com to Gamespot, The Insider and ZDNet.
The online news site Seattle PostGlobe today displayed a 1 for All video and ad, which it has said it will display daily. The Dothan (Ala.) Eagle, meanwhile, is running all nine of the 1 for All ads in print and online the first nine days of this month, and plans to repeat the ads throughout the month.

News of the campaign also was carried on the Web pages of groups ranging from the Poynter Institute to the Online News Association to the Radio Television Digital News Association. The John S. and James L. Knight Foundation — an earlier supporter of 1 for All and a longtime advocate for the First Amendment — featured the debut of the campaign in two locations, the foundation’s main Web site and on its KnightBlog.

1 for All has its origins as a 2007 project of the American Society of News Editors, organized by Paulson, which convened a summit of educators, journalists, artists, attorneys and advocates to talk about why the public knows so little about the First Amendment. Attendees concluded that education and marketing were critical to building understanding and support.

The Knight Foundation, McCormick Foundation, Newseum, First Amendment Center, Gannett Foundation and Brechner Center contributed resources to the cause.

Brian J. Buchanan contributed to this report.

[greedy__malone]

Online Venters Rejoice: Federal Anti-SLAPP Law Taking Shape

That airline lose your luggage (again)? A rental-truck outfit overcharge you unjustifiably? That bedbug exterminator spray everywhere except where the bedbugs roam?

In a fit of pique, you might be inclined to take your complaints online, to create an “Acme BugsAway Stinks!” group on Facebook or maybe even film your own Howard Beale-like tirade and put it up on YouTube.

If you do, know that a complaint from the object of your ire might soon be on its way. And maybe a lawsuit.

The NYT on Tuesday has a story on the trend of companies fighting back against consumers who vent online, mostly in the form of defamation suits.

According to the story, those who vent online may often be protected by the First Amendment. But the Constitution doesn’t always carry the day — the threat of a suit is often enough to get angry consumers to pull down their remarks.

Many states have what are called anti-SLAPP laws — laws that ban these types of suits. (SLAPP stands for “Strategic Lawsuit Against Public Participation.) Congress is thinking about passing its own.

The bill, in the House Subcommittee on Courts and Competition Policy, would, according to the NYT, enable a defendant who believes he is being sued for speaking out or petitioning on a public matter to seek to have the suit dismissed.

Under the proposed law, if a case is dismissed for being a SLAPP suit, the plaintiff would have to pay the other side’s legal fees.

“Just as petition and free speech rights are so important that they require specific constitutional protections, they are also important enough to justify uniform national protections against Slapps,” said Mark Goldowitz, director of the California Anti-Slapp Project, which helped draft the bill.

http://blogs.wsj.com/law/2010/06/01/online-venters-rejoice-federal-anti-slapp-law-taking-shape/?KEYWORDS=online+venters+rejoice

[ratso1]

Stossel interviewed Ezra Levant on the case against him in Canada concerning the publishing of those Danish cartoon depictions of Mohammed a few years ago:

Levant eventually "won" the cases (he was embroiled in multiple litigations), but he was out over $100K in the process, while the imam who brought the charges was out nothing, as Canada foot the bill. Stossel's point was that this case would have never been in the U.S. because of First Amendment protections.

[greedy__malone]

print this Print E-mail this article E-mail this article

New campaign puts First Amendment first


06.30.10

WASHINGTON — A new nationwide campaign, 1 for All, to build understanding and public support for the First Amendment, launches today.

The nonpartisan campaign is a collaborative effort of educators, artists, journalists, lawyers, librarians and others who believe the public will benefit from a greater understanding of the First Amendment. 1 for All encourages news media and other organizations to explain the First Amendment and encourage Americans to celebrate and use the freedoms it guarantees: speech, press, religion, assembly and petition.

"Surveys by the First Amendment Center indicate that only one American in 25 can identify the five freedoms of the First Amendment," said Ken Paulson, president of the Newseum and First Amendment Center, and a founder of the campaign.

“A surprising number of Americans don’t understand that these freedoms enrich our lives daily through freedom of expression and faith.”

The concept behind 1 for All "is to remind the public that there’s one amendment that we all use daily," Paulson said. "And it’s the one that guarantees freedom for all."

The campaign has its origins as a 2007 project of the American Society of News Editors, which convened a summit of educators, journalists, artists, attorneys and advocates to talk about why the public knows so little about the First Amendment. Attendees concluded that education and marketing were critical to building understanding and support.

The Knight Foundation, McCormick Foundation, Newseum, First Amendment Center, Gannett Foundation and Brechner Center contributed resources to the cause. More than 300 organizations nationwide have committed to carrying public service ads and publicizing the campaign, including many of the nation’s largest news organizations and online companies. The ads colorfully highlight First Amendment freedoms.

Gene Policinski, First Amendment Center executive director and co-chair of ASNE’s First Amendment Committee, said that at its heart "the campaign is all about education."

"We want to reach as many people as possible with the message that their freedoms matter," he said. "And, as new forms of media and a diverse society bring new challenges to our freedoms, the public needs to be better grounded in our basic freedoms to judge both those challenges and proposed solutions."

1 for All provides lesson plans and other educational resources to help teachers in elementary through high school teach First Amendment freedoms. Colleges are also being encouraged to host events celebrating the First Amendment.

"1 for All is an opportunity for those who believe in the importance of free expression to share one overriding message with the American people: It’s not a coincidence that the strongest, most dynamic, most creative and most ambitious nation in the history of the planet is also the most free," Paulson said.

Jed Hilly, executive director, Americana Music Association, said the association “is privileged to work with 1 for All to promote freedom of speech in music. Free expression is a critical element in the arts, and especially in music. Cheers to 1 for All for reminding us of this great freedom and for spreading the message throughout the land.”

In the Pharos-Tribune in Logansport, Ind., Managing Editor Kelly Hawes wrote, “The freedoms spelled out by the First Amendment are the same ones we’ll be celebrating [this] weekend as we mark the 234th anniversary of the signing of the Declaration of Independence. I hope you’ll take note of the (1 for All) campaign, and please help to spread the word about the importance of these freedoms. They are the heart and soul of the American way of life.”

“1 for All is a worthy project that every American can play a role in by getting involved, learning more about the First Amendment and teaching our youth what it means," wrote Michael Caldwell, publisher and columnist for The (Ironton, Ohio) Tribune. "The Three Musketeers stood all for one. Americans must stand 1 for All.”

“[We] are pleased to be able to support this groundbreaking initiative, reminding all Americans of the value of a free press and the First Amendment,” said Robert Dickey, president of Gannett U.S. Community Publishing.

For more information: [e-mail].

[greedy__malone]

Kagan and the First Amendment: excerpts from hearings

By The Associated Press,
First Amendment Center Online reports
07.01.10

WASHINGTON — Cruising toward confirmation, Supreme Court nominee Elena Kagan completed grueling Senate questioning yesterday, unscathed by Republican challenges on abortion, gays in the military and gun rights while sidestepping partisan debate about GOP-named judges pulling the Court to the right.

Kagan emerged from three days of vetting by the Senate Judiciary Committee much as she had begun, declaring she'd be an independent and impartial judge and denying Republican suggestions that she would be unable to separate her political leanings from her job as a justice.

First Amendment issues were discussed several times during Kagan’s portion of this week’s hearings:

Cameras in the Supreme Court
Sen. Arlen Specter, D-Penn., asked Kagan if cameras should be allowed inside the Supreme Court. She replied: "It means I'd have to get my hair done more often."

The joke left Specter momentarily flustered as spectators in the hearing room laughed, but he eventually replied, "Let me commend you on that last comment.

"You have shown a really admirable sense of humor," he said. "We're looking for someone who can moderate the Court, and a little humor would do them a lot of good."

Kagan later said of allowing cameras in, "It would be a great thing for the Court, and it would be a great thing for the American people."

Citizens United
Specter asked Kagan whether she thought the Court’s January decision Citizens United v. Federal Election Commission, in which parts of the 2002 federal campaign-finance law were overturned, was “disrespectful” of Congress. Kagan, who as solicitor general was charged with defending the regulations at issue in the case, said she did not feel it was necessary to characterize what the Supreme Court did.

Sen. Orrin Hatch, R-Utah, also questioned Kagan in detail about the case.

Kagan said of advocating for the Obama administration: "I did believe we had a strong case to make. I tried to make it to the best of my ability."

Specter continued to urge Kagan to state her personal views of the case, but she would not budge.

"It's a little bit difficult to take off the advocate's hat and put on the judge's hat," she said.

Kagan also said that the 5-4 decision removing campaign-spending limits for corporations and unions was "settled law."

Libel laws
On June 30, Sen. Amy Klobuchar, D-Minn., asked Kagan questions related to libel law and the landmark 1964 Supreme Court ruling New York Times v. Sullivan.

“I think people should be able to write anything they want about me, and I … won't sue them for libel," Kagan said with a smile.

Klobuchar asked whether balance is needed regarding some free-speech issues.

"Even as we understand the absolute necessity … for protection of speakers from libel suits, from defamation suits," Kagan said, "we should also appreciate that people who did nothing to ask for trouble … can be greatly harmed when something goes around the Internet, and everybody believes something false about a person. … That's a real harm, and the legal system should not pretend that it's not."

(Credit: MSNBC: First Read)

Military recruiting at Harvard
Kagan came under fire from Alabama Sen. Jeff Sessions, the top Republican on the Senate Judiciary Committee, for her decision as dean of Harvard Law to bar military recruiters from using the school's career services office because of the Pentagon's policy against openly gay soldiers. He said that amounted to "punishing" the armed services, treating them in a "second-class way" and creating a hostile environment for the military on campus.

Kagan vehemently denied the accusations stating, "Military recruiters had access to Harvard students every single day I was dean."

Despite letters from military personnel defending Kagan and her actions as dean at Harvard, many Republican senators insisted she had hampered military recruiting efforts.

Under questioning by Sessions, Kagan said she was trying to balance Harvard's nondiscrimination policy, which she believed the Pentagon’s "don't ask, don't tell" violated, with a federal law that required schools to give military recruiters equal access as a condition of eligibility for federal funds. She said she welcomed the military, and believed her policy of requiring recruiters to work through a student veterans group — first set by a predecessor — was a valid compromise.

"We were trying to make sure that military recruiters had full and complete access to our students, but we were also trying to protect our own antidiscrimination policy and to protect the students whom it is ... supposed to protect, which in this case were our gay and lesbian students," Kagan said.

Sessions called Kagan’s version of events "disconnected from reality" and accused her of defying federal law because of her strong opposition to the military's treatment of homosexuals.

"I know what happened at Harvard. I know you were an outspoken leader against the military policy," Sessions said. "I know you acted without legal authority to reverse Harvard's policy and deny those military equal access to campus until you were threatened by the United States government of loss of federal funds."

Comcast/NBC Universal merger
Sen. Al Franken, D-Minn., asked Kagan about the state of the media, specifically the proposed merger of Comcast and NBC Universal.

Franken made his opinion clear, saying: “When the same company owns programming and runs the pipes that bring us programming, I think we have a problem. I’m interested in the ways the Supreme Court affects the info that you and I get when you turn on the TV or read the newspaper.”

He continued, “If Comcast and NBC merge, I worry that AT&T and Verizon are going to decide that, well, they have to buy ABC, CBS to compete. And that will mean there will be less independent programming, fewer voices, and a smaller marketplace of ideas. That’s a First Amendment problem. It’s also an anti-trust problem.”

Kagan hesitated to answer, as the Comcast/NBC merger is still under judicial review, but then said: “In general terms, the First Amendment does not provide defense to anti-trust laws.” She added, “The anti-trust laws are the anti-trust laws, and they apply to all companies.”

Franken continued to assert that the First Amendment is relevant concerning anti-trust laws, citing the “Net neutrality” issue and the fact that corporations often control the online means of communication. Kagan acknowledged “First Amendment values” might be at issue, but because she considered the matter to be primarily one related to anti-trust law, she said she “would defer to people who know a lot more about anti-trust policy than I do.”

(Credit: http://www.mediaite.com)

[ratso1]

Stossel was on Megyn Kelly's show today, promoing his upcoming "What's Great About America" series on Fox. The first installment airs this weekend, and the topic is Free Speech/First Amendment:

http://stossel.blogs.foxbusiness.com/2010/06/29/whats-great-about-america-free-speech/

I found it interesting that his primary focus in his discussion with Kelly was the absurd dichotomy of what passes for "freedom of speech" in Canada.

Should be interesting.

[greedy__malone]

Ill. appeals court takes dim view of anonymous online libel

By Douglas Lee
Special to the First Amendment Center Online
06.22.10

It’s cases like Maxon v. Ottawa Publishing Company that test what we’re willing to accept in the name of free speech.

Granted, speech in other cases — funeral protests and anti-abortion rallies, for example — may be more offensive. In those cases, however, the First Amendment right to express hurtful opinions from public streets and sidewalks is relatively clear and longstanding.

In cases like Maxon, on the other hand, the speech is more accusation than epithet, stating facts that might or might not be true and spreading them over the Internet behind anonymous screen names. The anonymous poster claims a right to speak; the defamation victim claims a right to a remedy. Balancing these claims isn’t easy, and courts have struggled to do so.

In Maxon, Donald and Janet Maxon asked Ottawa, Ill., to change its ordinances so as to allow bed-and-breakfast establishments in residential areas. The local newspaper covered the city’s consideration of the request, and several readers posted comments on the issue on the newspaper’s Web site. To post a comment, a person had to register only with an e-mail address. Registrants did not have to give the newspaper their real names and could post comments under pseudonyms or screen names that did not reveal their identities.

Mary1955, FabFive from Ottawa, and birdie1 commented on the bed-and-breakfast issue frequently, expressing their opposition to the Maxons’ request and their displeasure with the city officials considering it. At one time or another, all three suggested the Maxons had bribed some of the officials.

After one of the articles, for example, Mary1955 posted: “Money under the table???????????” In a longer comment, FabFive warned city officials, "IF this gets anywhere NEAR being passed in favor for the Maxon CULT, you can bet your BRIBED BEHINDS there will be a mass exodus of homeowners from this town.” FabFive later wrote, “The plan should never had [sic] been pushed to the Town Council when several members of the OPC [Ottawa Planning Commission] were not even present to vote on it in the new terms that the BRIBED members had created.” In response, birdie1 posted “FabFive: The bribe has continued since you were last on!!”

The Maxons responded by filing a petition for discovery, a procedure under Illinois Supreme Court Rule 224 that allows parties to learn the identity of potential defendants before filing suit. In this case, the Maxons sought from the newspaper all information that would allow them to identify the three posters.

The trial court, relying on decisions from courts in New Jersey and Delaware, denied the petition, ruling that courts must take special precautions to protect the anonymity of Internet posters.

In the New Jersey case, Dendrite International v. Doe, and the Delaware case, Doe v. Cahill, the courts held that a party seeking the disclosure of an anonymous poster must show that:

* The poster has been notified of the potential claim and has had an opportunity to oppose the request.
* The party seeking disclosure has set forth the exact statement allegedly made by the poster.
* The party’s complaint states a viable legal claim against the poster.
* The party has produced sufficient evidence to support each element of its claim.
* The need for disclosure, when considered with the strength of the party’s case, outweighs the poster’s First Amendment right to speak anonymously.

This test, the courts held, appropriately balanced the rights of a person not to be defamed with the First Amendment rights of an anonymous poster.

The Maxons appealed the trial court’s ruling to the Illinois Appellate Court, and on June 1 that court reversed. In a 2-1 decision, the court refused to follow Dendrite and Cahill, holding that the test applied in those cases misguidedly offered anonymous Internet speakers more protection from defamation claims than the law provided speakers who identified themselves.

In Illinois, the court said, there’s already enough protection for anonymous speech under Rule 224, which requires, among other things, that a party seeking a potential defendant’s identity state a legally sufficient claim against the potential defendant. While recognizing that this standard is not as exacting as the Dendrite-Cahill requirement that a party support each element of its claim with evidence, the Illinois court held that, in defamation cases, the Rule 224 standard requires the party to allege facts that establish that the defamatory statements are not constitutionally protected.

Moreover, the court said, no reason exists to balance “the rights of the speaker to anonymity against the rights of a would-be plaintiff.” While acknowledging that “certain types of anonymous speech are constitutionally protected,” the court said “it is overly broad to assert that anonymous speech, in and of itself, warrants constitutional protection.”

Rather, the court held, anonymous Internet speakers enjoy the same protections from defamation claims as identified speakers — but not more. “[O]nce the petitioner has made out a prima facie case for defamation, the potential defendant has no first-amendment right to balance against the petitioner’s right to seek redress for damage to his reputation, as it is well settled that there is no first-amendment right to defame.” Therefore, “given that there is no constitutional right to defame, we find no need for the additional procedural requirements articulated in the Dendrite-Cahill test.”

The court then turned to the Maxons’ allegations. Rejecting the trial court’s finding that the allegations of bribery could be considered opinions, the court held the postings could be interpreted as stating a fact. The notion that the publication of the statements on the Internet made them less likely to be understood as facts was not persuasive, the court said.

“[U]nless we are prepared to hold as a matter of law that nothing published on the Internet is capable of being interpreted as factual,” the court held, “the mere fact that the allegedly defamatory statement is published on the Internet does not render it hyperbole.”

Dissenting Justice Daniel Schmidt disagreed with the majority on all fronts. First, calling the Internet “a modern-day leaflet,” he said the Rule 224 standard did not sufficiently protect anonymous speech.

“Plaintiffs routinely plead ‘facts’ which later cannot be proven,” he noted. “If ‘facts’ are pled that lead to the discovery of the speaker’s identity, and then these facts could not later be proven, the harm to anonymous speech is a fait accompli. Granting the previously anonymous speaker summary judgment would not undo the prior harm: disclosure of the speaker’s identity.”

Then, applying the Dendrite-Cahill test, Justice Schmidt argued the statements at issue cannot reasonably be interpreted as stating a fact. The posting of the statements on an Internet forum, he reasoned, “make it clear that the statements are nothing more than conjecture, surmise, and a statement of subjective theory.”

“Any reasonable person,” Schmidt added, “would construe the words for what they were: the venting of one’s spleen by someone disgruntled by the decision of a local body politic.”

How to protect anonymous speech fairly and constitutionally has been a challenge since the First Amendment was adopted. The rise of the Internet both ensures that challenge is not going away and makes it more difficult.

How we view the challenge of protecting anonymous Internet speech, however, ultimately depends on how much Internet defamation we’re willing to accept.

[greedy__malone]

Update to amend title 28, United States Code, to prohibit recognition and enforcement of foreign defamation judgments and certain foreign judgments against the providers of interactive computer services.

H.R. 2765

This bill has been passed in the House. The bill now goes on to be voted on in the Senate. Keep in mind that debate may be taking place on a companion bill in the Senate, rather than on this particular bill. [Last Updated: Jun 23, 2010 6:25AM]

Last Action:
Jun 24, 2010: Committee on the Judiciary. Date of scheduled consideration. SD-226. 10:00 a.m.

http://www.govtrack.us/congress/bill.xpd?bill=h111-2765

[greedy__malone]

Fla. high court: Nonresidents can be sued over Web posts

By The Associated Press
06.18.10

TALLAHASSEE, Fla. — Nonresidents can be sued for defamation under Florida law over their Internet postings if that information is accessible and accessed in Florida, the state Supreme Court ruled yesterday.

That applies even to bloggers such as Tabatha Marshall, who lives in Washington state and has no ties to Florida other than taking a vacation in the Sunshine State.

Previous rulings have determined phone calls and e-mails constitute “electronic communications into Florida,” but this is the first time a court has included blogs and other Web site postings.

Lawyers who participated in the case, though, said the ruling has limited precedential value because it did not address constitutional issues, which will be decided in federal court.

Marshall owns and operates a Web site that includes postings by herself and others on consumer-related issues.

Some comments, including those from Internet users in Florida, accused Internet Solutions Corp., an employment and recruiting firm, of criminal activity including “phishing.”

That’s the practice of duping Internet users into providing personal information.

Internet Solutions, which is incorporated in Nevada but claims Orlando as its principal place of business, sued Marshall for defamation in a Florida federal court, which dismissed the case for lack of jurisdiction.

Internet Solutions appealed to the 11th U.S. Circuit Court of Appeals in Atlanta, which asked the Florida justices to interpret state law as a prelude to deciding the case.

“We conclude that allegedly defamatory material about a Florida resident placed on the Web and accessible in Florida constitutes an ‘electronic communication into Florida’ when the material is accessed (or ‘published’) in Florida,” Justice Barbara Pariente wrote in the unanimous opinion in Internet Solutions Corp. v. Marshall.

The case now returns to the 11th Circuit to decide Marshall’s other arguments that the lawsuit violates her constitutional rights of free expression and due process.

“Our game plan all along has been the constitutional issues, not the ministerial issue,” said her lawyer, Marc J. Randazza of Miami. “This is the scrimmage before the game.”

Greg Beck, a lawyer for the national consumer-advocacy group Public Citizen, said the ruling left a lot of questions unanswered. It did, though, narrow the law’s application to posts read in Florida rather than a broader net sought by Internet Solutions, Beck said.

Public Citizen filed a “friend-of-the-court” brief arguing that nonresidents should not be covered by Florida’s law unless their posts intentionally target someone in the state.

Pariente rejected Marshall’s argument that her acts were completed in Washington and nothing could be received by a Florida computer user without reaching into Washington to retrieve it.

That “ignores the nature of the Web, which is fundamentally different from a telephone call, an e-mail, or a letter,” Pariente wrote, because material posted on a Web site is accessible by anyone in the world.

Laws covering Internet defamation are a patchwork, Randazza said. He said at least five states have amended their “long-arm” laws so nonresidents cannot be sued outside their home states.

A lawyer for Internet Solutions did not return a call seeking comment in time for this story.

http://www.firstamendmentcenter.org/news.aspx?id=23069

[greedy__malone]

Theriot v. Does
NOTE: The information and commentary contained in this database entry are based on court filings and other informational sources that may contain unproven allegations made by the parties. The truthfulness and accuracy of such information is likely to be in dispute.
Posted May 12th, 2010 by CMLP Staff
SummaryThreat Type: Lawsuit Date: 05/07/2010
Status: Concluded Location: Louisiana
Disposition: Dismissed (total) Verdict/Settlement Amount: n/a
Legal Claims: Defamation
On May 7, 2010, the Parish of Jefferson in Louisiana and its interim President, Steve Theriot, filed a lawsuit in state court against unnamed Does for defamation. According to the Complaint, the Does "systematically published messages on the Internet using... read full description
PartiesParty Issuing Legal Threat: Party Receiving Legal Threat:
Parish of Jefferson; Steve Theriot John Does 1-100
Type of Party: Type of Party:
Individual; Government Individual
Location of Party: Location of Party:
Louisiana
Legal Counsel: Legal Counsel:
M. Nan Alessandra, David M. Korn, Phelps Dunbar LLP
Description
On May 7, 2010, the Parish of Jefferson in Louisiana and its interim President, Steve Theriot, filed a lawsuit in state court against unnamed Does for defamation. According to the Complaint, the Does "systematically published messages on the Internet using the forums and blogs on Nola.com and Slabbed.wordpress.com," which comments were allegedly defamatory. (Complaint ¶ 5) The Complaint alleges that the defamatory material included statements "that members of Jefferson Parish Government such as Mr. Theriot are unethical and deceitful." (Complaint ¶ 6) The Complaint seeks "[d]amages for embarrassment and emotional suffering[; . . . d]amages for loss of personal reputation; [. . . and d]amages for loss of business opportunity," as well as costs and attorneys' fees.

The same day the Complaint was filed, Plaintiffs issued a subpoena to New Orleans Net LLC, the operator of the Nola.com website, seeking the identities of the posters using 11 Nola.com screen names.

UPDATE: According to news reports, Theriot has dismissed the lawsuit.

[greedy__malone]

http://www.citmedialaw.org/taxonomy/term/132/blog

Very good resource for anonymity issues.

[greedy__malone]

Theriot v. Does
NOTE: The information and commentary contained in this database entry are based on court filings and other informational sources that may contain unproven allegations made by the parties. The truthfulness and accuracy of such information is likely to be in dispute.
Posted May 12th, 2010 by CMLP Staff
Summary
Threat Type: Lawsuit Date: 05/07/2010
Status: Concluded Location: Louisiana
Disposition: Dismissed (total) Verdict/Settlement Amount: n/a
Legal Claims: Defamation
On May 7, 2010, the Parish of Jefferson in Louisiana and its interim President, Steve Theriot, filed a lawsuit in state court against unnamed Does for defamation. According to the Complaint, the Does "systematically published messages on the Internet using... read full description
Parties
Party Issuing Legal Threat: Party Receiving Legal Threat:
Parish of Jefferson; Steve Theriot John Does 1-100
Type of Party: Type of Party:
Individual; Government Individual
Location of Party: Location of Party:
Louisiana
Legal Counsel: Legal Counsel:
M. Nan Alessandra, David M. Korn, Phelps Dunbar LLP
Description

On May 7, 2010, the Parish of Jefferson in Louisiana and its interim President, Steve Theriot, filed a lawsuit in state court against unnamed Does for defamation. According to the Complaint, the Does "systematically published messages on the Internet using the forums and blogs on Nola.com and Slabbed.wordpress.com," which comments were allegedly defamatory. (Complaint ¶ 5) The Complaint alleges that the defamatory material included statements "that members of Jefferson Parish Government such as Mr. Theriot are unethical and deceitful." (Complaint ¶ 6) The Complaint seeks "[d]amages for embarrassment and emotional suffering[; . . . d]amages for loss of personal reputation; [. . . and d]amages for loss of business opportunity," as well as costs and attorneys' fees.

The same day the Complaint was filed, Plaintiffs issued a subpoena to New Orleans Net LLC, the operator of the Nola.com website, seeking the identities of the posters using 11 Nola.com screen names.

UPDATE: According to news reports, Theriot has dismissed the lawsuit.

http://www.citmedialaw.org/threats/theriot-v-does

[greedy__malone]

Responding to Subpoenas

You've received a document that might be a subpoena. Your immediate reaction may be shock and a desire to immediately obey its request. As with anything legal, it's best not to act on impulse but to carefully consider the options before you. While you will likely need to comply, there are times when a court will agree to modify the subpoena's request or even to terminate it entirely. This guide cannot give you legal advice about your situation and you should contact a lawyer for specific legal advice. However, this section should be able to answer the preliminary questions you may have about how best to respond.

1. What is a subpoena?

A subpoena is a legal order commanding the person or organization named in the subpoena to give sworn testimony at a specified time and place about a matter concerned in an investigation or a legal proceeding, such as a trial. A subpoena duces tecum substitutes the requirement of your appearance to testify with a requirement that you supply specific physical material in your possession. A deposition subpoena means that your sworn testimony will be taken during a phase of the trial process known as discovery, and will likely occur at a lawyer's office.

Subpoenas may be issued by the following people involved in the legal case associated with the subpoena:

* the judge presiding over the legal proceedings
* the clerk of the court where the lawsuit has been filed
* a private lawyer representing one of the parties in the lawsuit
* a government lawyer such as the Attorney General or District Attorney

(Note that the Attorney General and District Attorney can issue a subpoena during an investigation, before initiating a legal case).

Given that a subpoena is an order to produce yourself and/or tangible items in a very specific legal setting, it is imperative that you take it seriously. Failure to comply with a subpoena can have serious consequences. However, you do have certain options in how best to respond.

2. Did you receive a subpoena?

You'll first want to determine precisely what you've received. In some instances, law enforcement authorities will use a search warrant, rather than a subpoena duces tecum, to access material in your possession. If you have been served with a search warrant, you cannot interfere with the search. You should call a lawyer immediately, note the scope of the search, watch and document where the authorities performed their search, and keep a record of any items seized.

Subpoenas come in several flavors, and you may need someone trained in the law to help you determine what type of legal document you've received. However, a subpoena contains certain distinguishing characteristics. Look carefully at the document for:

* the full name of a court in the document's title, or letterhead
* the word "Subpoena" in bold in the top third of the document
* the words "you are commanded to report," or a similar variation
* your name
* a specific date, time and location for you to appear or for you to provide the requested materials
* in some cases, the penalty for non-compliance will be included

Examples of subpoenas: Earthlink Subpoena, AutoAdmit Subpoena, Tice Subpoena, and IBM Subpoena.

Subpoenas are not necessarily filed with the court, so if you have doubts about the document you've received, ask a lawyer or call the person who signed the document and ask if they have in fact sent a subpoena. (An address and or telephone number should follow the signature.) If none of the above characteristics match your document, refer to our sections on Responding to Correspondence Threatening Legal Action, and Responding to Lawsuits for help figuring out what you've received.

3. Accepting a Subpoena vs. Complying with a Subpoena

Once you've determined that you have received a subpoena, you may feel that you want to contest the subpoena because you believe that it is invalid or unreasonable. You can still do so despite having received the subpoena (which in most cases arrived by registered mail, or by a person delivering it to you and requesting your signature). Acceptance of the subpoena does not constitute your assent to comply with it. However, if you object to the terms of the subpoena, then you must inform the court about your decision to challenge it.

4. Inconvenient Date & Cost of Travel

As long as you are not one of the parties in the case and you have to travel an appreciable distance, your transportation costs should be covered and you should be given an attendance fee. The costs and fees are set according to the rules of the court named in the subpoena. Generally, in a civil case you should receive the cash or check before you have to appear. After you testify in a criminal case, you should receive an attendance fee and travel reimbursement.

If appearing at the time and place specified by the subpoena is of great inconvenience, call the person who issued the subpoena, and he may be able to reschedule your appearance to a more convenient date. However, keep in mind that postponement may not be an option because a court date has been set for the trial and cannot be moved. If so, and if you would suffer extreme hardship from having to appear, consult a lawyer who may be able to help.

5. Filing an Objection to a Subpoena

The subpoena will require that you either appear, or produce documents or other material, at a specific time and location. If you want to inform the court of your objections you will need to file a Motion to Quash. Typically, a Motion to Quash contains a request to the court asking to modify or terminate the subpoena based on certain objections, and a memorandum explaining how the law supports the objections.

You should not wait until the date specified to make your objection known to the court. There are many valid reasons to object, the most common being:

* Improper service

The law requires that you receive (were "served") with the subpoena in a specified way. Requirements for service vary according to jurisdiction, and the subject is too complicated to address in this guide. You may want to consult with an attorney or perform your own legal research to understand whether service was proper. However, this is usually not a strong objection because in all likelihood you will merely be served once again.

* Scope of Request

If you believe the subpoena you've received requests information or material that would be difficult to gather, you may be able to challenge it. Should the court agree with your objections, it may nullify the subpoena. More likely, the court will limit the scope of the subpoena, set a more reasonable deadline for you to deliver the materials, and, if a voluminous amount of documents have been requested, the court may also require the other party to compensate you for making the necessary copies of each document. (Note: you should not have to create anything new for a subpoena request; the request should only be for existing material within your possession.)

It is important to note two things here: the court does not usually monitor who and what is subpoenaed, and under rules of trial procedure, a party to a lawsuit is permitted to send a subpoena to anyone he thinks might have material useful for his case. Additionally the material doesn't even have to relate to the subject of the lawsuit. A party is entitled to request materials it thinks might have the potential to lead to relevant information concerning the subject matter of the case. Thus, unsurprisingly, many subpoenas are drafted to be broad in scope, and in some cases, to have a short deadline.

* Confidential Material

If the subpoena requires that you turn over confidential documents, or testify about confidential matters, like the identity of an anonymous source, do not immediately comply with the request. The law recognizes the importance of protecting certain communications and grants them a privileged status for purposes of a lawsuit. For example:

* certain states have enacted "shield" laws protecting journalists and others from being compelled to testify about information collected during the newsgathering process, including the disclosure of anonymous sources. Refer to our section on State Shield Laws to see whether your state has this law.
* both state and federal law prevents certain professionals, like doctors and lawyers, from being forced to testify or submit documents about their patients or clients.
* both state and federal law grant close relatives immunity from testifying in certain situations.

Because these protections vary according to each jurisdiction you will need to consult a lawyer, or perform your own legal research, to see whether any apply to your situation.

* Self-incrimination

The Fifth Amendment of the U.S. Constitution protects an individual from being forced to testify against himself when such testimony could result in criminal liability.

In some cases, law enforcement authorities use a subpoena to a build a case against the subpoena recipient before pressing charges. If you think that you may be the focus of a criminal investigation, or worry about incriminating yourself when you testify, do not comply with the subpoena without first consulting a lawyer.

6. Hiring a Lawyer

If you haven't already made a decision at this point, you should decide whether you want to hire a lawyer. If the request is straightforward and you're comfortable with supplying the requested information, you may not need a lawyer's services. However, you will almost always be better off having a lawyer protecting your interests, even if you think you have nothing to hide. You may mischaracterize a situation and make yourself vulnerable to a lawsuit or criminal charges, and if so, will find it hard to rebut the testimony given under oath. Refer to our section on Finding Legal Help for more help.

Before contacting a lawyer, write down everything you know about the situation, including: when and how you received the subpoena, the nature of the actions that triggered the subpoena, and any relevant interactions you’ve had with either party of the lawsuit. The act of writing the summary allows you to:

* record events you may later forget
* evaluate your position and figure out your next steps
* focus your conversation with a lawyer (should you wish to consult with one)
* launch your own legal research
* potentially determine the subpoena's validity

7. Adding your subpoena to the CMLP Legal Threats Database

This is an important action because creating an entry in the Legal Threats Database will help others who receive similar subpoenas know that they are not alone, and assist them in weighing their options regarding how to respond. You will also help the CMLP track who is sending legal threats and make it possible for our lawyers to help others in a similar position.

http://www.citmedialaw.org/legal-guide/responding-subpoenas

[greedy__malone]

Legal Protections for Anonymous Speech

Say that you receive notice that a someone has subpoenaed your ISP for information about your identity, and you move to quash (i.e., block or challenge) the subpoena. How will a court decide whether or not to allow the plaintiff to uncover your identity? This is a complex question that quickly brings us into a realm full of technical legal language and concepts. For those interested, this section and the State Law: Legal Protections for Anonymous Speech section that go with it delve into some of the details. If this makes your eyes glaze over, don't worry -- this section could be a good place for your lawyer to begin research.

Courts have recognized that the right to speak anonymously and pseudonymously is part of the First Amendment right to free speech, and accordingly some level of scrutiny is required before stripping an anonymous Internet speaker of that right. At the same time, those harmed by unlawful anonymous speech -- whether by defamation, misappropriation of trade secrets, or whatever else -- also have a right to seek compensation for their injury. When considering a subpoena or other discovery request seeking to unmask a speaker, courts attempt to balance these two competing rights.

While the courts in various jurisdictions have struck this balance in different ways, there is a growing consensus among courts that a would-be plaintiff must make a substantial legal and factual showing that his/her claim has merit before a court will unmask an anonymous or pseudonymous Internet speaker. In other words, these courts require a plaintiff trying to unmask an Internet speaker to bring forward a substantial amount of evidence to support the underlying legal claim (i.e., evidence that the anonymous speaker actually defamed the plaintiff or committed some other unlawful act that injured the plaintiff). These courts also impose a requirement that the plaintiff provide notice to the speaker whose identity is sought and an adequate opportunity to respond.

Here are some of the cases applying a heightened standard: Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009); Solers, Inc. v. Doe, 977 A.2d 941, 954-57 (D.C. 2009); Sinclair v. TubeSockTedD, 2009 WL 320408, at *2 (D.D.C. Feb. 10, 2009); A.Z. v. Doe, 2010 WL 816647 (N.J. Super. Ct. App. Div. Mar. 8, 2010); Swartz v. Doe, No. 08C-431 (Tenn. Cir. Ct. Oct. 8, 2009); Zherka v. Bogdanos, 08 Civ. 2062 (S.D.N.Y. Feb. 24, 2009); Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008); Doe I v. Individuals, 561 F. Supp. 2d 249, 254-56 (D. Conn. 2008); Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp.2d 1205, 1216 (D. Nev. 2008); Mobilisa v. Doe, 170 P.3d 712, 720-21 (Ariz. Ct. App. 2007); Greenbaum v. Google, 845 N.Y.S.2d 695, 698-99 (N.Y. Sup. Ct. 2007); In re Does 1-10, 242 S.W.3d 805, 822-23 (Tex. Ct. App. 2007); Reunion Indus. v. Doe, 2007 WL 1453491 (Penn. Ct. Comm. Pleas Mar. 5, 2007); McMann v. Doe, 460 F. Supp.2d 259, 268 (D. Mass. 2006); Best Western Int'l v. Doe, 2006 WL 2091695, at * (D. Ariz. 2006); Highfields Capital Mgmt. v. Doe, 385 F. Supp.2d 969, 975-76 (N.D. Cal. 2005); Doe v. Cahill, 884 A.2d 451 (Del. 2005); Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001).

There are some older cases that allowed a would-be plaintiff to uncover the identity of a John Doe defendant without making a substantial evidentiary showing that the claim has merit, but subsequent cases have largely abandoned these approaches. See, e.g. In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000) (requiring the plaintiff to show only that his claim was made in good faith, and not out of an intent to harass); Columbia Insurance v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999) (applying a "motion to dismiss" standard that requires only that a plaintiff make allegations that, if true, would entitle her to a legal remedy).

Courts generally apply a different test when the party seeks the identity of an online speaker to serve as a witness, rather than as a defendant in a John Doe lawsuit. These courts adopt a four-part test that requires the court to consider whether (1) the subpoena was issued in good faith; (2) the information sought relates to a core claim or defense; (3) the identifying information is directly and materially relevant to that claim or defense; and (4) information sufficient to establish or to disprove the claim or defense is unavailable from any other source. See, e.g., McVicker v. King, 2010 WL 786275 (W.D. Pa. Mar. 3, 2010); Sedersten v. Taylor, 2009 WL 4802567 (W.D. Mo. Dec. 9, 2009); Doe v. 2TheMart.com, 140 F.Supp.2d 1088 (W.D. Was. 2001), and Enterline v. Pocono Medical Ctr., 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008).

Keep in mind that the cases discussed on this page are defamation cases and other lawsuits where speech played a critical role. Most copyright infringement lawsuits, especially those relating to peer-to-peer file sharing, fit into an entirely different category, even though they sometimes involve anonymous actors. According to an important case in this area, Sony Music Entertainment v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004), peer-to-peer file sharing "qualifies as speech, but only to a degree." Courts in copyright cases thus tend to impose relatively lenient standards on plaintiffs before allowing discovery of an anonymous defendant's identity. Additionally, it usually is relatively easy for a plaintiff in a copyright case to provide basic evidence to support its claim. Therefore, if you are involved in a copyright infringement case, you should not assume that the First Amendment will protect our identity, even if you are in a state that applies a high-burden standard in defamation cases.

Another wrinkle: be aware that a plaintiff may try to disguise a defamation claim by characterizing it as a copyright infringement claim in order to take advantage of more lenient standards for uncovering your identity. If you get sued for copyright infringement, but you believe that the dispute is really about your criticism of the plaintiff, you should should bring this to the attention of your lawyer and/or the court. In re Subpoena Issued Pursuant to the Digital Millennium Copyright Act to: 43SB.com, 2007 WL 4335441 (D. Idaho 2007), provides a good example of a plaintiff trying to use copyright law to get around First Amendment protection for anonymous speech.

Make sure to check your state's page for cases in your jurisdiction on the First Amendment right to anonymous/pseudonymous speech.

http://www.citmedialaw.org/legal-guide/legal-protections-anonymous-speech

[greedy__malone]

Google tells lawmakers it never used Wi-Fi data

By The Associated Press
06.14.10

WASHINGTON — Google Inc. is telling lawmakers that it never dissected or used any of the information that it accidentally sucked up while collecting data about public Wi-Fi networks in more than 30 countries.

In a letter to three key members of the House Commerce Committee, the company apologized for collecting fragments of e-mails, search requests and other online activities over unencrypted Wi-Fi networks.

The company got the information while photographing neighborhoods for its "Street View" mapping feature. Google said it was trying to gather information about the location, strength and configuration of Wi-Fi networks so it could improve the accuracy of location-based services such as Google Maps and driving directions. Going further and collecting snippets of information traveling over those networks "was a mistake," Pablo Chavez, Google's director of public policy, wrote in the letter.

Google's letter, released June 11, was a response to an inquiry by Rep. Joe Barton of Texas, the top Republican on the House Energy and Commerce Committee, and Massachusetts Democrat Edward Markey, a key member of the Subcommittee on Communications, Technology and the Internet. The letter was addressed to Barton, Markey and Commerce Committee Chairman Henry Waxman, D-Calif.

House Judiciary Chairman John Conyers, D-Mich., has also expressed concern about Google's actions.

Although the company used its Street View cars as a platform for the Wi-Fi equipment, the Street View photographs and the collection of Wi-Fi network information are separate efforts. Google says it has stopped grabbing Wi-Fi data from its Street View vehicles since it discovered the data collection problem last month following an inquiry by German regulators.

In the letter sent to the House, Google said that any personal information inadvertently swept up in the process of mapping Wi-Fi networks was "not used to identify any specific individual or household" and was stored only in "raw, aggregate, binary form." It added that "the payload data has never been used in any Google product or service, nor do we intend to use it."

The company also said it was aware of only two Google engineers who had even seen the data: the engineer who designed the software used to process information about the Wi-Fi networks being mapped, and the engineer who tested the data that had been collected after the company learned of the problem.

For now, Google is retaining the data collected in the United States to comply with a court order stemming from pending civil litigation. The company has deleted data that came from Ireland, Denmark and Austria at the request of authorities in those countries.

Google's explanations did not do enough to appease Barton and Markey, who have called on the Federal Trade Commission to investigate the company's actions.

"Google now confesses it has been collecting people's information for years, yet claims they still do not know exactly what they collected and who was vulnerable," Barton said in a statement. "This is deeply troubling for a company that bases its business model on gathering consumer data."

[greedy__malone]

"Freedom of speech was not secured for us by editors, readers and writers, but by soldiers who gave their lives to win it and would give their lives to defend it."

On this Memorial Day please take a moment to reflect and pay respects.

[greedy__malone]

First Amendment traditions get 21st century tweak

By David L. Hudson Jr.
First Amendment scholar
05.28.10

A federal appellate judge’s simple solutions in a recent ruling for those confronted with repugnant e-mail messages — engage in debate or hit the delete button on your computer — have deep roots in First Amendment law. They involve the counter-speech doctrine and the “avert your eyes” rationale.

The underlying case involved Walter Kehowski, a math professor at Glendale Community College in Arizona who sent several racially tinged e-mails to his fellow district employees. His initial e-mail titled “Dia de la raza” asked, “Why is the district endorsing an explicitly racist event?” Kehowski later sent e-mails touting the superiority of Western civilization and similar themes.

A group of Hispanic employees of the Maricopa County Community College District sued the district and college officials for creating a hostile work environment in violation of Title VII, the leading federal anti-discrimination law, and the equal-protection clause of the 14th Amendment.

U.S. District Judge Earl H. Carroll denied the university defendants qualified immunity from the lawsuit. On appeal, though, a unanimous three-judge panel of the 9th Circuit reversed Carroll in its May 20 opinion in Rodriguez v. Maricopa County Community College District.

Chief Judge Alex Kozinski, writing for the panel, granted the defendants qualified immunity because he determined that Kehowski’s obnoxious e-mails did not constitute harassment. In his opinion, Kozinski spoke about viewpoint discrimination, academic freedom and other important First Amendment concepts.

Two of his most important free-speech themes he saved for the end of his opinion: “Those offended by Kehowski’s ideas should engage him in debate or hit the ‘delete’ button when they receive his emails. They may not invoke the power of the government to shut him up.”

The “engage in debate” rationale hearkens back to Justice Louis Brandeis’ famous concurring opinion in Whitney v. California (1927) — a case that involved the conviction of Charlotte Anita Whitney for her alleged role in Communist Party activity. Brandeis wrote: “If there be time to expose through discussion the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Brandeis’ passage epitomizes the concept of the counter-speech doctrine — that the best response for government or individuals is to counter bad speech with good speech.

Kozinski’s “hit the ‘delete’ button” alternative represents a technological update to Justice John Marshall Harlan’s famous phrase in Cohen v. California (1971), an opinion written nearly 40 years ago. The case involved the prosecution of Paul Robert Cohen for wearing a jacket with the words “Fuck the Draft” in a Los Angeles courthouse. Harlan wrote: “Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes.”

Nearly everyone confronts some expression that he or she finds distasteful. Rather than censor the speech or file a lawsuit alleging harassment, perhaps people should consider the time-honored rationales of debating the negative speech or simply ignoring it.

[greedy__malone]

New campaign puts First Amendment first


05.28.10

WASHINGTON — A new nationwide campaign, 1 for All, to build understanding and public support for the First Amendment, will launch July 1.

The nonpartisan campaign is a collaborative effort of educators, artists, journalists, lawyers, librarians and others who believe the public will benefit from a greater understanding of the First Amendment. 1 for All will encourage news media and other organizations to explain the First Amendment and encourage Americans to celebrate and use the freedoms it guarantees: speech, press, religion, assembly and petition.

"Surveys by the First Amendment Center indicate that only one American in 25 can identify the five freedoms of the First Amendment," said Ken Paulson, president of the Newseum and First Amendment Center, and a founder of the campaign.

“A surprising number of Americans don’t understand that these freedoms enrich our lives daily through freedom of expression and faith.”

The concept behind 1 for All "is to remind the public that there’s one amendment that we all use daily," Paulson said. "And it’s the one that guarantees freedom for all."

The campaign begin in 2007 as a project of the American Society of News Editors, which convened a summit of educators, journalists, artists, attorneys and advocates to talk about why the public knows so little about the First Amendment. Attendees concluded that education and marketing were critical to building understanding and support.

The Knight Foundation, McCormick Foundation, Newseum, First Amendment Center, Gannett Foundation and Brechner Center contributed resources to the cause. More than 300 organizations nationwide have committed to carrying public service ads and publicizing the campaign, including many of the nation’s largest news organizations and online companies. The ads colorfully highlight First Amendment freedoms.

Gene Policinski, First Amendment Center executive director and co-chair of ASNE’s First Amendment Committee, said that at its heart "the campaign is all about education."

"We want to reach as many people as possible with the message that their freedoms matter," he said. "And, as new forms of media and a diverse society bring new challenges to our freedoms, the public needs to be better grounded in our basic freedoms to judge both those challenges and proposed solutions."

1 for All provides lesson plans and other educational resources to help teachers in elementary through high school teach First Amendment freedoms. Colleges are also being encouraged to host events celebrating the First Amendment.

"1 for All is an opportunity for those who believe in the importance of free expression to share one overriding message with the American people: It’s not a coincidence that the strongest, most dynamic, most creative and most ambitious nation in the history of the planet is also the most free," Paulson said.

Jed Hilly, executive director, Americana Music Association, said the association “is privileged to work with 1 for All to promote freedom of speech in music. Free expression is a critical element in the arts, and especially in music. Cheers to 1 for All for reminding us of this great freedom and for spreading the message throughout the land.”

“[We] are pleased to be able to support this groundbreaking initiative, reminding all Americans of the value of a free press and the First Amendment,” said Robert Dickey, president of Gannett U.S. Community Publishing.

For more information: [e-mail].

[greedy__malone]

ACLU fights to keep Twitter users' IDs secret in Pa.

By The Associated Press
05.21.10

HARRISBURG, Pa. — An American Civil Liberties Union lawyer said yesterday his organization was helping two anonymous Twitter users fight an effort by prosecutors to unmask them after they tweeted criticism of the Pennsylvania attorney general, who is running for governor.

ACLU of Pennsylvania attorney Vic Walczak said he would ask a judge to throw out a subpoena seeking the identities of the two Twitter users, “bfbarbie” and “CasablancaPA,” if an agreement with Attorney General Tom Corbett’s office couldn’t be worked out.

Walczak said the subpoena by a statewide investigative grand jury is an unconstitutional retaliation that violates First Amendment free-speech protections.

“It’s a prized American right to criticize government officials, and to do so anonymously,” Walczak said.

A Corbett spokesman said the subpoena was partly related to a sentencing hearing today for former Democratic legislative aide Brett Cott. He is one of three people convicted in March of public corruption charges in the ongoing investigation into the alleged illegal use of legislative employees and government resources to run political campaigns.

The grand jury on May 6 subpoenaed the identities and other information about the two users from Twitter Inc. Corbett’s office has been using the highly secretive grand jury process for the past several years to look into public corruption allegations involving the General Assembly.

Twitter attorney Timothy Yip issued a statement that the company discloses user information only under “limited circumstances.”

If the company believes it is legal to do so, Twitter notifies users whenever it receives requests for their information that it believes it is obligated to share, Yip said.

“This policy is designed for maximum transparency and gives users an opportunity to object,” he said.

A Twitter spokesman said the company had not turned over any information to Corbett’s office as of yesterday afternoon.

Attorney general’s office spokesman Kevin Harley said the subpoena “has nothing to do with criticisms of the attorney general.”

“There are many bloggers and other Web sites that are critical of the attorney general,” Harley said. “That’s not what this is about.”

In an interview with the AP last year, Corbett said he was aware of anonymous critics of his investigation, and mentioned Cott by name.

“We know people like Brett Cott are on the blogs all day, making stuff up,” said Corbett, who won the Republican gubernatorial nomination on May 18.

Cott was an aide to former Rep. Mike Veon, D-Beaver, who also was convicted of multiple counts. Veon’s sentencing is scheduled for next month.

Twitter user CasablancaPA links to an anonymous blog, “CasablancaPA: Exposing the hypocrisy of Tom Corbett,” which also has criticized Corbett and how his office has handled the investigation of the Legislature known as Bonusgate.

In a tweet Thursday, bfbarbie called Corbett “an evil man,” and CasablancaPA wrote that Corbett “should try reading the blog he wants to shut down a little more closely.”

A sentencing memorandum filed by prosecutors on Wednesday accused Cott of having “extensively and anonymously utilized” the CasablancaPA blog “to deflect blame and deny responsibility for his criminal conduct and to attack and malign the investigative and prosecutorial process.”

Cott and his lawyer yesterday both declined comment about CasablancaPA — the blog or the Twitter user.

Bryan Walk, Cott’s defense attorney, said the grand jury was wrong to issue the subpoena, however.

“They are completely abusing the process trying to seek this information,” Walk said.

[greedy__malone]

Wis. governor signs law protecting reporters, sources

By The Associated Press
05.19.10

MADISON, Wis. — Gov. Jim Doyle yesterday signed into law a bill designed to protect reporters and their anonymous sources.

Wisconsin joins 36 other states and the District of Columbia in enacting a so-called shield law that keeps journalists in most cases from having to testify to reveal their confidential sources.

Supporters representing news-media and freedom-of-information groups have said the measure is intended to protect the public's right to learn of official misdoing.

Under the new law, judges could order reporters to testify, produce information or reveal a source's identity only when it is "highly relevant" to the case or critical to at least one party's argument. Attorneys would have to show they couldn't get the information any other way and there was an overriding public interest in disclosing it.

Confidential sources also could not be forced to testify in order to discover the identity of that person.

The Wisconsin Newspaper Association, the Wisconsin Broadcasters Association and the Wisconsin Freedom of Information Council collaborated on drafting the law.

There is no federal protection, but 36 other states already have enacted shield laws — most recently Kansas, which enacted its in April. Wisconsin's law takes effect in three months.

Backers of the Wisconsin law argued it was needed to bolster current protections that exist only through court rulings.

The law was based on a 1995 state appeals court ruling that said journalists have more protection than other witnesses from being forced to testify or provide information.

The ruling stemmed from a lawsuit filed by patients of a Milwaukee dentist accused of malpractice. A circuit court judge had ordered journalists who worked on a Milwaukee Magazine story about the dentist to testify and turn over notes and research materials.

The state appeals court said the law gives journalists protection from such orders so that they can't be used "as investigative tools."

[greedy__malone]

THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 2009-262
THE MORTGAGE SPECIALISTS, INC.
v.
IMPLODE-EXPLODE HEAVY INDUSTRIES, INC.
Argued: November 4, 2009
Opinion Issued: May 6, 2010

http://www.courts.state.nh.us/supreme/opinions/2010/2010041mortg.pdf

[greedy__malone]

Watchdog Web site is news organization, N.H. high court finds

By The Associated Press
05.07.10

CONCORD, N.H. — The New Hampshire Supreme Court ruled yesterday that a mortgage industry-watchdog Web site is a news organization and should not have been ordered to remove a leaked document it published or to identify its source.

The ruling, which tackled both the definition of journalism and the rights of those who post anonymous comments online, was a win for Las Vegas-based Mortgage Lender Implode-O-Meter, which assesses mortgage companies and disseminates its findings on the Web site.

The Web site had an article in 2008 that included a confidential financial document it had obtained about the Mortgage Specialists Inc., which has offices in New Hampshire and Massachusetts. Someone then posted an anonymous comment accusing the company's owner of fraud.

After the mortgage company sued, a Rockingham Superior Court judge ordered the Web site to identify the source of the document and remove it from the site. Judge Kenneth McHugh also said the Web site had to identify the author of the anonymous comments.

The state high court disagreed, reversing the lower court's ruling and sending the case back for further review on issues including whether reporter privilege applies to the Web site when treated as a news organization and the standards for anonymous online comments.

"The fact that Implode operates a website makes it no less a member of the press," the court said in The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc.

Lawyer Jeremy Eggleton, who represented the Web site, said the ruling affirmed that New Hampshire law includes strong protections for the press.

"This is a great ruling for the press," he said.

The mortgage company's lawyer, Alexander Walker, said he was disappointed with the ruling but was hopeful that when the lower court reconsiders the issues it would again find in his client's favor.

Yesterday's ruling also marked the first time the New Hampshire court weighed in on the protection of those who make anonymous online comments. It adopted the standards set in several states and instructed courts to weigh claims of defamation against the news media's right to protect their sources.

The Implode-o-Meter site responded to the ruling by restoring the document and critical comments. The site's founder, Aaron Krowne, said he was pleased by the ruling but perplexed that the case wasn't completely dismissed.

"As events have unfolded, the nature of this suit has become clear. It is meant to limit the public's knowledge about financial fraud, even though it is from a known offender," he wrote on the site yesterday afternoon.

The owner of the Mortgage Specialists did not return a call for comment in time for this story.

[Risicare]

I bought this pack a couple days ago, I already had Gish and World of Goo from another time and they are both top notch indie games. I have played the others a bit and they seem quite good as well. Aquaria was a bit slow to start but I am hooked now. I may just kick off early today to play it if the market is mellow. Well worth some money!

[greedy__malone]

Great way to help out the EFF here:

May 5th, 2010

The Humble Indie Bundle: Pay-What-You-Want for Games and Help EFF!
Announcement by Aaron Jue

Wolfire Games is running an innovative pay-what-you-want promotion for five great indie video games with some proceeds benefiting EFF! Normally the five games would be valued at $80, but from now until Tuesday, 5/11, you can pay what you want for the entire game bundle including:

* World of Goo
* Aquaria
* Gish
* Lugaru HD
* Penumbra Overture

The games are DRM-free and work with Mac, Windows, and Linux. The coolest part is that you can choose how to divvy up your payment between the game developers, Child's Play charity for kids, and the Electronic Frontier Foundation! Have fun, feel good, and don't forget drop some change in the EFF bucket. But wait! There's more! EFF will offer a complimentary Pioneer Membership with our top-shelf swag to the first 30 people to donate $100 or more (divided in any manner you choose) for the bundle! Check out the Humble Indie Bundle site for all the details (in both print and convenient video rap form).

We at EFF would like to offer our heartfelt thanks to Wolfire for including us, and cheers to all of the developers for their generosity and creativity. Now go get your bundle!

http://www.wolfire.com/humble

[noquit]

If a journalist is one who gets paid for their writings, and a blogger does not, remember there are many who put out literature that is freely given out, who do not accept payment for publishing their point of view.

Of course a blogger may actually be getting some form of remuneration, just that it may not be that obvious.

Can't anyone be sued for libel by anyone that disagrees with them ?

Of course not everyone can afford to go to court for their writings, so is it right to be right, or does one have to be rich to get ones' point of view across ?

I didn't know a journalist was protected from revealing their sources by a shield law. What stops a journalist, even a paid one, from going on a vendetta against a person or company they don't personally like ?

[greedy__malone]

N.J. appeals court hears arguments over whether blogger is protected by shield laws

By MaryAnn Spoto/The Star-Ledger
March 02, 2010, 7:16PM

In the ongoing dispute between a Freehold-based company and a blogger sued for writing about the online pornography industry, a state appeals panel heard arguments today over whether she should be considered a member of the media and protected by New Jersey’s shield laws.

In their questioning of the attorneys for blogger Shellee Hale and Too Much Media LLC, the trio of appellate judges acknowledged they were treading into largely uncharted territory in determining what type of comments on the internet can be considered slander or libel.

The appellate panel, sitting at Rutgers Law School in Camden today, is trying to determine whether Hale, a mother of five and a blogger from Washington State, is considered a journalist and a member of the media when she was gathering information in 2009 about an internet security breach at TMM.

At issue are comments she posted on a message board of an adult entertainment website accusing the principals of TMM of threatening her life.

The company sued and wants her to pay punitive damages for what it claims are comments that sullied its reputation. In an attempt to block TMM from forcing her to reveal her sources as part of the lawsuit, Hale sought to have the suit dismissed or to have a judge declare her protected under New Jersey’s so-called shield laws that protect journalists from disclosing their sources.

After court today, TMM attorney Joel Kreizman said Hale may have been acting as a journalist when she was preparing an article for her own website, but he contended she was nothing more than an irresponsible member of the public posting libelous or slanderous comments when she wrote on the message board.

Traditionally, slander has been defined as spoken defamation and libel as written defamation. However, Kreizman contends the internet changes that because its contents can be accessed indefinitely.

‘‘As a result, months and months from now we could be in a situation where we don’t know if we lost a customer because of what they saw when they Googled us,’’ he said. ‘‘Other than being a blogger, she didn’t do anything to show she was a journalist.’’

Hale’s attorney, Jeffrey Pollock, contends she was investigating TMM’s security breach when she was posting comments on the message board and therefore should be protected by the shield laws.

‘‘She was doing all the things someone would do to investigate, Pollock said.

Appellate Judges Philip Carchman, Anthony Parrillo and Marie Lihotz did not indicate when they would issue a decision.

[greedy__malone]

Judge vacates order shutting down anti-Burfoot website

By Louis Hansen
The Virginian-Pilot
© April 23, 2010

NORFOLK

A Circuit Court judge reversed his own decision Thursday to shut down a website criticizing Vice Mayor Anthony Burfoot, clearing the way for the site to reactivate.

Circuit Court Judge Charles E. Poston reconsidered the day-old motion without legal prompting and concluded "that the temporary injunction should not have been granted."

Burfoot, seeking a third term on City Council, sued Wednesday to take down the website, May4thcounts.com.

The website appeared last week and detailed alleged business dealings of downtown clubs and bars. Several bars and restaurants closed last year during an aggressive city code enforcement campaign.

Fellow council members criticized Burfoot for having the city attorney's office respond to the attack. A city lawyer filed suit on Burfoot's behalf against the website and its registered owner, "disgruntled citizen."

Burfoot said Thursday he eventually will hire a personal lawyer and find out who is behind the anonymous website. "After the election, I plan on giving it my full attention," he said. "I'm pursuing this on my own money."

The site's host, GoDaddy.com, said in a statement the website will go back online if the company receives an exact copy of the new order.

City Attorney Bernard Pishko said Burfoot asked for legal advice after the website appeared. Pishko said Burfoot, as a City Council member, was his client and he was obliged to help. He added that other city employees, although not parties to the lawsuit, were damaged by the accusations.

Burfoot sued only after failing to discover who was behind the campaign, Pishko said. He added that the suit cost taxpayers only his time.

In the suit, Burfoot contends that several sections of the website were untrue, "slanderous and libelous" and would harm his re-election campaign. The suit attached a 30-page printout of the entire site as it appeared April 20.

Poston granted an injunction Wednesday, stating that other legal actions were inadequate in the case. But on Thursday, Poston reconsidered.

He quoted the Virginia Constitution stating that freedom of the press and speech are "among the great bulwarks of liberty."

"In our world, the Internet, just as radio and television, are subsumed in the word 'press' as used in the Constitution," Poston wrote.

He noted that speech concerning the official conduct of public figures is especially protected. Public figures must prove "malicious intent" in published materials. Poston said he was unable to find, without additional information, actual malice in the published material.

Although Burfoot's distaste for the unsigned and unacknowledged material is understandable, Poston wrote, it did not justify closing the website. He added that the Federalist Papers, advocating the ratification of the U.S. Constitution, were published anonymously.

"Historically our Commonwealth has placed a great premium on the ability of the citizens to make reasonable decisions about public matters," Poston wrote.

Pishko disagreed with the judge's decision. "I don't see a First Amendment issue here," he said. "I see it tried and true - you don't have a right to slander."

The decision drew interest from legal advocacy groups and political bloggers.

Jim Hoeft, a conservative blogger on the site bearingdrift.com, praised the judge's reversal.

"Ethical and responsible information online has transformed politics and political accountability, so any threat to restrict that speech is a potential threat to our First Amendment freedoms," said Hoeft, a board member of the Blogs United, an association of about 30 Virginia bloggers.

Speculation about unethical behavior by public figures should be investigated, he said, not brushed aside.

Burfoot said he would push forward with his campaign. "People understand this is an election year," he said. "Most people can see through it."

Three challengers also are running in Ward 3 - Mamie Johnson, William E. "Billy" Mann Jr. and Donna Fay Smith.

Another hearing on the suit is scheduled for July 7 - two months after city elections.

Louis Hansen, [phone], [e-mail]

[greedy__malone]

Stevens: Independent view of First Amendment

By Tony Mauro
First Amendment Center legal correspondent
04.09.10

WASHINGTON — Supreme Court Justice John Paul Stevens wrote in 1993 that the five clauses of the First Amendment “combine to form a whole larger than its parts” in a way that advances “a broader concept of liberty.”

Stevens, who announced his retirement today, was widely viewed as a strong friend of the First Amendment over his 34 years on the Court. But his embrace was typically nuanced and independent, and not without exceptions — especially when First Amendment free-speech values came in conflict with symbols of patriotism and protecting the integrity of elections.

Overall, says University of Georgia law professor Sonja West, Stevens had “a strong, consistent First Amendment jurisprudence, but it was not an absolutist one.” A former law clerk to Stevens, West teaches media and constitutional law.

Stevens’ free-speech decisions range from FCC v. Pacifica Foundation in 1978, upholding the ban on broadcasting George Carlin’s “seven dirty words,” to Reno v. ACLU in 1997, which gave the Internet broad First Amendment protection. In 44 Liquormart v. Rhode Island in 1996, Stevens struck down a state law banning liquor-price advertising, and in 1982, he authored NAACP v. Claiborne Hardware, protecting a boycott of white businesses from government restriction.

In Bartnicki v. Vopper in 2001, Stevens reversed a verdict against the news media for publishing contents of a private discussion in a labor dispute. “Privacy gives way when balanced against the interest in publishing matters of public importance,” Stevens wrote for the majority.

His pragmatic approach to speech cases — insuring the public has means to participate in political debate — came through in City of Ladue v. Gilleo in 1994. Striking down an ordinance that banned residential lawn signs, Stevens said, “Residential signs are an unusually cheap and convenient form of communication.” In Reno v. ACLU, Stevens made a similar point about the “relatively unlimited, low-cost capacity for communications of all kinds.”

As for the religion clauses, Stevens has been a steady vote in favor of separation of church and state, and against many accommodations of religion in public life.

Stevens struck down an Alabama “moment-of-silence” law for public schools in Wallace v. Jaffree in 1985, and in Santa Fe Independent School District v. Doe in 2000, he wrote that public schools could not precede football games with student-led prayer.

Douglas Laycock, a leading scholar of church-state issues, wrote in 2004 that Stevens’ stands reflected an apparent “hostility to religion. Religion in his view is subject to all the burdens of government, but entitled to few of its benefits.”

Stevens’ defenders say he is not hostile to religion, pointing to his votes in favor of religious groups in the Church of the Lukumi Babalu Aye Inc. v. City of Hialeah and Lamb’s Chapel v. Center Moriches Union Free School District, both 1993 cases. “A careful look at his voting in religion cases suggests that he has a healthy respect for religious thought, although this respect is tempered by a fear of the divisive power of religious disputes in public life,” wrote Eduardo Penalver, a former Stevens clerk who teaches at Fordham University School of Law, in a law-review appraisal of Stevens.

Some of Stevens’ best-known First Amendment statements came in dissents from decisions in which the majority ostensibly expanded First Amendment protections.

In 1989 Stevens, a World War II veteran, objected to the majority’s view in Texas v. Johnson that laws that criminalized burning the American flag violated freedom of speech. Reading from his dissent on the bench, Stevens said, “The value of the flag as a symbol cannot be measured … . Sanctioning the public desecration of the flag will tarnish its value — both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it.”

Stevens has since observed that the majority’s ruling had the effect of making flag-burning less potent as a political act. “Nobody burns flags anymore,” Stevens told The New Yorker recently. “As long as it’s legal, it’s not a big deal.”

In January, Stevens announced from the bench an angry dissent in Citizens United v. Federal Election Commission, in which the majority had ruled that corporations, like individuals, could not be restricted in their campaign spending without running afoul of the First Amendment. Stevens said the Court had long restricted corporate involvement in elections and had no reason to shrink from that task now.

“The Court’s blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve,” said Stevens.

Stevens’ consideration of other societal values besides free speech led him to shy away from carving out bright-line or categorical exceptions from First Amendment protections for expressions such as obscenity. Instead, he preferred a balancing approach that takes into account the value and, to a degree, the content of the speech at issue. Enforcing all-or-nothing categories, Stevens said in R.A.V. v. City of St. Paul in 1992, “sacrifices subtlety for clarity” and is “ultimately unsound.”

In the religion arena, Stevens dissented sharply when the majority in Zelman v. Simmons-Harris OK’d a school voucher program that included parochial schools.

“Whenever we remove a brick from the wall that was designed to separate religion and government,” Stevens warned, “we increase the risk of religious strife and weaken the foundation of our democracy.”