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, (757) 446-2341, louis.hansen@pilotonline.com
AI
