Landmark 'internet privacy' case. Should the blogger's name be released, or no?
By ladyluna
@ladyluna (7004)
United States
July 26, 2008 6:56am CST
Hello All,
Well, we've got another 'sticky' situation on our hands. Should our right to freedom of speech trump all other rights and laws? Specifically, does the right of an individual to speak his or her mind override the right of another individual to defend him or herself?
I would urge all to open the link below, and read the short story. The details are very relevant!
http://www.commercialappeal.com/news/2008/jul/22/police-director-sues-find-identity-blogger-critica/
Basically, a blogger who is quite critical of the Memphis police department, has made incendiary comments about the city's police leadership. The problem is that the blogger's claims will most certainly lead to an Internal Affairs investigation, and perhaps legal charges: criminal as well as civil (???). Moreover, the blogger may well be violating the rights of others, and may be guilty of liable. In which case, the police leadership would have the right to sue the blogger to protect his/her/their reputations. So, if an investigation or formal charges are filed, could the blogger's activities impede the ability of the courts to reach a fair, impartial decision? In other words, could the blogger inadvertently 'tamper' with a jury or judge?
The real kicker (as I see it) is: If we did not have legitimate examples of corruption, then it would seem a 'no brainer' to turn over the blogger's ID information. Where in a perfect world, the blogger would simply be told to tone down the rhetoric until the courts (and/or I.A.) had an opportunity to deal with the allegations. Though, we know that corruption exists.
[b]So, what do you think:
1. Will the police try to intimidate the blogger?
2. Does the internet give the blogger the opportunity to irresponsibly accuse?
3. What if the blogger is full of bologna? Does his or her 1st Amendment right give him/her the opportunity to lie about other citizens?
4. Do we err on the side of trusting the police, or trusting the blogger? [/b]
3 people like this
4 responses
@Taskr36 (13963)
• United States
27 Jul 08
Well an investigation is appropriate based on what the blogger wrote. People give anonymous tips all the time and this falls under the same umbrella. If, however, it is proven that the claims were 100% false and maliciously written to injure the reputations of those accused, they have the right to sue for libel.
Once they choose to sue for libel they may subpoena said blogger to appear in court. Should the blogger withhold his identity, they may then request a warrant from a judge to obtain records from the blogger's ISP to determine his identity and subsequently deliver the subpoena. The first amendment does not give you the right to maliciously slander or libel people. If it did, then we'd never hear of such lawsuits.
Witness tampering and intimidation are illegal. There are substantial punishments if the police involved take such actions. Our justice system does have methods in place to deal with such things although it's obviously not perfect and much more difficult when it involves law enforcement.
This case isn't exactly groundbreaking. There have already been cases in various countries where people have either been arrested, or sued over things they've posted on blogs, myspace, and youtube. In Finland a teacher sued her student for some ridiculous amount of money I think $100,000 just because he posted a video of her singing karaoke with the title "Escape Mental Patient". Here in the US a principal sued several students for creating a fake myspace page with his name and picture (pretending to be him) and claiming Michael Jackson was his idol and he liked to molest little boys. Both the teacher in Finland and the principal in the US won their cases.
2 people like this
@ladyluna (7004)
• United States
28 Jul 08
Hello Taskr,
Can I take from your answer that you support protecting the identity of the blogger until such time as an investigation warrants the need to subpoena the blogger?
If so, then may I present a bit of a 'devil's advocate' argument? Doesn't that place the burden of proof on the defendant(s) rather than the accuser? In other words, the accuser has no burden to prove any allegations -- perhaps ever. Our Fourth Amendment protects our right "... to remain secure in our person, houses, papers and effects, against unreasonable searches and seizures...". Since there is a very real burden from being investigated, then doesn't the punitive measure of an anonymously instigated investigation violate our Fourth Amendment rights?
Our sixth amendment protects our right to "... a speedy and public trial ... impartial jury ... to be confronted with the witnesses against him..." So, if anonymity if protected how can the accused confront their accuser who is a witness against him or her? In taking that one step farther, if the blogger's identity was made available, at the outset -- then the defendent might be able to prove that the blogger is not objective, or may be acting punitively based on some kind of an 'axe to grind'. So then, doesn't the anonymous accuser wield a great deal of power against the accused? This isn't as relevant in this particular case, because the taxpayer is paying for much of the investigation vis a vis Internal Affairs, the D.A. etc... However, when a private citizen is falsely accused they bear a great burden, financial, and otherwise, to defend themselves against any accusation -- false or not.
1 person likes this
@ladyluna (7004)
• United States
28 Jul 08
Hello Taskr,
Let me commend you for having your 'thinking cap' squarely on your head!!!
You have very cogently described how the system can work to both achieve justice and protect the anonymity of the blogger, right up to a point where he or she may need to provide testimony.
Now, I have just one final question for you: Does the outlined scenario change IF any segment of the public loses confidence in the Memphis P.D. resulting from the blogger's criticisms? Specifically, if a Memphis citizen sees the bloggers statements deriding the M.P.D. and makes a conscious decision to not contact the 'bum cops', where that decision results in injury or fatality -- does the blogger bear any culpability? If so, full or partial?
1 person likes this
@Taskr36 (13963)
• United States
28 Jul 08
You propose several solid arguements ladyluna, well done. Because this case involves police, the rules are a bit different than they would be with a citizen, but not too much different. First, the anonymous information provides reasonable suspicion which is necessary to conduct a search or begin an investigation. The plaintiff, or accuser in this case is the city of Memphis or the state of Tennessee depending on jurisdiction.
The right to face one's accuser begins with facing them and the evidence they've gathered. When and if criminal charges are pressed the defendants may ask for the identity of this blogger. If the prosecution has gathered evidence independant of the blogger and has no intention of using the bloggers statements, they can argue that the blogger is not relevant to the case and it's up to the judge to make a decision on that. Typically though, the blogger can and will be brought into the light.
Although the burden of proof lies on the prosecution to prove a crime was committed, the defendants are still required to mount their own defense. That means they must subpoena their own witnesses, and challenge the veracity of statements collected by the police, especially any that are anonymous.
In the end though, they will be defending themselves against the evidence, not just one bitter blogger. Police officers have more assistance than the average citizen providing his own defense. The police typically have unions that work hard to protect their rights and provide legal assistance.
1 person likes this
@Destiny007 (5805)
• United States
26 Jul 08
When it comes to Freedom of Speech, I will side with the citizen... every time.
The police are already trying to intimidate the blogger, and the sites supporters....
"The bloggers also said city attorneys earlier this year wrote a threatening letter on city letterhead to a company that produced T-shirts for the bloggers."
Where is the proof that any irresponsibility exists? If and when the statements the blogger has made have been proven to be libelous... AFTER any investigation proves libel... then can the pursuit of identities be begun... but not before.
We all have the freedom of speech, which means that we can say anything we want... but it is our responsibility to ensure that we are correct when accusing someone of wrongdoing.
Opinions are one thing, but if we accuse then we had best be correct, because there are legal ramifications if we are knowingly lying about someone.
If the blogger is full of baloney, then that will come out and he should be punished, but the time for that is AFTER the determination has been made that the charges are false... Otherwise it is a case of government intimidation and the violation opf the 1ST Amendment... which is how this looks right now.
To trust the police is to err big time... I have no faith in law enforcement or the legal system at all, and for good reason.
I trust the Constitution and the individual... not the government.
2 people like this
@ladyluna (7004)
• United States
26 Jul 08
Hello Destiny,
Such a reasonable, reasoned answer!
The problem with your excellent response is that it relies on principle of personal responsibility. Which is sorely lacking in today's world.
If one wanted to, they could make or break any institution that self-investigates allegations of impropriety or wrongdoing, before external investigations are sought. If anonymity is respected then the same individual could instigate 100 investigations per year, on fabricated incident claims. The flip side of the coin, AND the catch-22 is that if anonymity is not honored then some people, with sincere allegations, will withold reporting to avoid possible intimidation.
If the crime of filing a false report was actually followed up on, and had real teeth, then this dilemma would likely be much less problematic.
I am perplexed by what seems an obvious question: if the blogger is reporting genuine impropriety, then why has he or she not simply submitted the evidence to the FBI or the Justice Department?
1 person likes this
@academic2 (7000)
• Uganda
26 Jul 08
I think responsible blogging is extremely important, any blogger who becomes slanderous in his blogging should fac the full wrath of the law!
@Latrivia (2878)
• United States
27 Jul 08
Let's begin with the legal definition of libel: "Published material meeting three conditions: the material is defamatory either on its face or indirectly; the defamatory statement is about someone who is identifiable to one or more persons; and the material must be distributed to someone other than the offended party; i.e. published; distinguished from slander."
First they would have to prove the man actually intended to harm the reputation of the officers. If they manage that, since many of these stories are defamatory, and they name people directly - by the legal definition of libel, I believe the blogger may be found guilty of libel. If many of his statements can't be proven to be true, then he will either have to stop making the statements, or stop naming the officers.
Though like I said, they would first have to prove he was purposely trying to harm their reputation, rather than get the word out on "corrupt" cops in town. That'll be the hardest part.
@ladyluna (7004)
• United States
28 Jul 08
Hello Latrivia,
Thank you for providing the definition of libel. It's always helpful to make sure that people in a discussion are talking apples & apples.
In this case, it may be that the more relevant definition may be for the word "defamatory". It seems to me that the definition of "libel" has been met, though the determination of defamatory may not have been met -- yet. And, this speaks to any perceived or real intent to harm. We are given a glimpse of the possible defamatory nature of the blogger's words: "... as a ram to ruin the Constitution...". Here the words do seem to intend to disgrace or damage the officer's or adminstrator's judgement and fulfillment of the duties of the police to uphold the law -- which all-inclusively stem from the Constitution.
So, it would seem that the merits of this case will depend on the explanation given for "harshly critical" and "Godwin has illegally used his position and the City of Memphis as a ram to ruin the Constitution of the United States."
However, I'm hoping to explore this from a bigger picture. Namely, does anonymity place an unconstitional burden on the accused? If so, is that a reason to mandate against anonymity?
