Are Bloggers (& Comments) Due 1st Amendment Protections?
Fascinating case with my buds over Mortgage Implode-Explode as defendants. This might impact if bloggers have the same first amendment rights as traditional journalists; Also, can blog websites protect the identities of those who post comments anonymously?
At issue are postings on the website called Mortgage lender Implode-O-meter. That’s a Las Vegas blog that tracks the mortgage lending industry. Last year, the blog reported the Plaistow-based Mortgage Specialists had been sanctioned by the state banking department, and posted a confidential document the company had sent to regulators. In response to that posting, someone calling themselves brianbattersby then posted that Mortgage Specialists President Mike Gill was under a tax lien, and had bought his way out of a fraud committed in 2002. The lawyer for Mortgage Specialists says neither claim is true. Mortgage Specialists asked the blog’s editor to remove the confidential document, which he did, and asked for him to identify brianbattersby, which he didn’t. A Superior Court Judge ordered the website to permanently remove the posts and reveal brianbattersby’s identity — a ruling the website’s attorney, Jeremy Eggleton, told the justices was wrong-headed, in the extreme.
“The trial courts order violates basic principles the 1st amendment, of the US constitution and essentially tramples on the rights both of implode explode both to speak, and to publish and to speak, as well as on the rights of the public to receive information and speak anonymously.”
The court seemed to have some fun with this, with justices leery of drawing any bright lines.
Justice Gary Hicks:
“But the information is newsworthy; people want to know about trends in the mortgage industry, and secondary markets, credit-default swaps.”
Justice James Duggan:
“So they print rumors, right? So does the national enquirer, and that’s a newspaper.”
“It’s a newspaper.”
“Not that I read it (laughs).”
I (obviously) think blogs should be afforded the same protections . . .
>
Source:
Fight Over Blog Comments Hits High Court
Josh Rogers
NHPR, November 5, 2009
http://nhpr.org/node/27722
November 5th, 2009 at 3:37 pm
Of course bloggers and commenters shouldn’t be protetcted, Barry, but the ratings agencies (and most of Wall Street) can LIE with impugnity and cost investors untold sums of money, SHOULD well be protected under the 1st Amendment. We are well beyond bizarro world at this point with story after story after story that just boggles the mind. It’s like a bad dream that will never end.
November 5th, 2009 at 3:44 pm
Efficient Market theory at its finest! All knowledge that can be known….
November 5th, 2009 at 4:02 pm
Well, I might take the other side of this…if truthful, fine. If slander/libel…not so much..didn’t you say neither claim was true?
B in T
November 5th, 2009 at 4:08 pm
The blogs have taken the role that newspapers used to fill (speak truth to power). It’s a given that they should have the same protections. However, the newspapers ability to retain the anonymity of their sources have been seriously degraded in the past decade. So I think any decent blogger should take steps to not store and keep source identification and to disclose exactly what information they keep and for how long.
November 5th, 2009 at 4:23 pm
What Bruce said. Libel is not protected in any way that I know of. Truth is another matter entirely.
November 5th, 2009 at 4:35 pm
Bruce in T you are a poopy head – JUST kidding, you most certainly are NOT! I just want to see if this gets me in trouble for libel.
The higher someone’s standings the less they are protected by libel – i.e. I can YELL on a street corner “Obama is a poopy head” but if I did the same thing to a neighbor, I could get in trouble.
It is scary to think in the anonymous world of the internet, if you say something derogatory to a fellow poster, could they sue you?
DON’T SUE ME BRUCE – PLEASE
November 5th, 2009 at 4:55 pm
“So I think any decent blogger should take steps to not store and keep source identification and to disclose exactly what information they keep and for how long.”–DeDude, above
DeDude,
you might want to guess again..see http://clusty.com/search?input-form=clusty-simple&v%3Asources=webplus&query=the+electronic+trails+left+on+the+internet for starters..
to think that that info’s ‘lifespan’ has anything to do with the ‘blogger’s’ data retention policies is, totally, delusional..
though, these guyz http://clusty.com/search?input-form=clusty-simple&v%3Asources=webplus&query=Puzzle+Palace+National+Security+Agency after they get done laughing, will, surely, send you a Thank-You note for disseminating the disinfo–btw, which e|mail address would you like them to send it to?
November 5th, 2009 at 5:08 pm
None of this is a problem unless you say anything critical about Goldman Sachs.
November 5th, 2009 at 5:16 pm
sysin3 Says:
What Bruce said. Libel is not protected in any way that I know of.
_________
If I’m not mistaken, like anything else, to seek recompense through the courts, libel and slander require that actual damages be proved (not hurt feelings, or immeasurable, etherial damages).
If I am mistaken, there’s going to be quite a bit of litigation clogging the courts.
November 5th, 2009 at 5:20 pm
The statement, “Goldman Sachs is a giant vampire squid” is not actionable, because it is just the expression of an opinion that does not accuse Goldman Sachs of having committed a crime. But giant vampire squids may have a claim.
Alas, as always, truth is an absolute defense to defamation (which can be either libel or slander). Which is why defamation cases should never be heard in a court of law. How does one arrive at the truth when the litigants pay exhorbitant sums of money to see that their lawyers properly obscure it?
And tax liens are matters of public record. If it’s there, it’s hardly a crime to point out what any good title examiner could know in about 30 minutes. Court settlements, usually, are as well.
November 5th, 2009 at 5:20 pm
The other day Barry posted an open question to any persons with knowledge of Countrywide’s current mortgage practices. At least one person commented claiming to have firsthand knowledge.
I’m Countrywide and I hate Barry Ritholtz for denigrating my proud and formerly tanned institution and my industry. I see a posting by someone who may (or so I would claim just to bust Ritholtz’s balls because I hate him) have divulged protected Countrywide business information in an effort to defame us. Truth is not always a defense against defamation where malicious intent to cause harm can be proven…
So I file a lawsuit naming Barry, Wordpress, Sitemeter, Anonymous Commentor (and of course Bruce in Tn because he’s a cosmetic surgeon with investments so I figure he’s got some dough), and at the same time send a list of Interrogatories/Requests for Production of Documents with items like:
1. Provide the registration information provided by Anonymous Commentor, including any ISP information recorded for this transaction, as well as the physical address of the server where this information is electronically stored.
2. Provide a log of Sitemeter details for all site views between the hours of xx:yy and xx:yy on [Date of comment]
And let the games begin.
November 5th, 2009 at 5:22 pm
@ Bruce in Tn
Speaking of blog comments, remember what The Great CNBC Sucks told you about the bond market yesterday? Today, the T-note yield took a dip, http://finance.yahoo.com/q?s=%5ETNX, and of course equities were up 2%. Always maintain discipline and don’t let go so easily of the cynicism.
November 5th, 2009 at 5:25 pm
@Marcus Aurelius:
No need to prove damages in a defamation suit. But the first step is to request the defamatory statement be retracted as prominently as it was first published. It’s only after the request for retraction is refused can a suit be filed, and then it can be just to clear one’s name.
November 5th, 2009 at 5:27 pm
As someone dedicated to the art of aspersion casting, I can only add that some guy told me that some other guy is masking a latency issue with his Fantusy Furtball obsession. So, some other guy, if you’re heading to Maine, no wedding bells for you, but at least a good trade and monster bong hit will be there to alleviate the pain.
November 5th, 2009 at 5:29 pm
DMM.to
5.45
+0.56 (11.45%)
http://www.google.com/finance?q=TSE:DMM
November 5th, 2009 at 5:43 pm
That mortgage company was born in Kenya, operates a Death Panel, and hates Red, White and Blue (in that order.)
November 5th, 2009 at 5:44 pm
Fannie Mae posts $18.9 billion Q3 loss, taps Treasury
22 mins ago
NEW YORK (Reuters) – Fannie Mae, the largest provider of funding for U.S. home loans, on Thursday said it would again tap the Treasury to plug a net worth deficit after bad mortgages and foreclosure prevention efforts resulted in a $18.9 billion net loss in the third quarter.
Shares of Fannie Mae tumbled 7.1 percent after it reported results in extended after-hours trade.
Fannie Mae (FNM.P) (FNM.N) , which was seized by the government last year, said the quarterly loss stemmed from $22 billion in credit-related expenses, including charges on impaired loans it bought from mortgage-backed securities as it modified loans under President Barack Obama’s foreclosure prevention plan.
The company also boosted its provision for credit losses in future quarters.
Fannie’s regulator will request $15 billion from the Treasury under a senior preferred stock agreement, which will increase the total government support to $60.9 billion.
November 5th, 2009 at 5:47 pm
MR,
I might be dense, but the only ‘latentcy’-issue I can think of is like this http://www.spryware.com/
WTF would that have to w/ Fantasmagorical Furtball , or “trips to Maine” ?
btw, nice pick~ w/ DMM.TO , it’s a shame that others weren’t following that, or the other names you’ve been mentioning..too busy scalping tics on ETFs, I guess..
November 5th, 2009 at 6:06 pm
MEH@4:55, yes I agree with Young (”John Young, curator of the controversial full-disclosure cryptography and intelligence site Cryptome.org. Young, who himself has received at least one broad subpoena for usage log information, takes pride in deleting his logs on a daily basis”). Bloggers should either have their own servers or set demands on those who host their blogs. Most logs serve no purpose for the blogger and should be deleted within a few weeks.
November 5th, 2009 at 6:26 pm
DeD,
agree w/ whomever you’d like, but w/ this, alone http://clusty.com/search?input-form=clusty-simple&v%3Asources=webplus&query=Deep-packet+sniffing
“tak(-ing)es pride in deleting his logs on a daily basis” is an exercise in willful self-delusion–it doesn’t save anyone from anything..
do you, really, think that this http://clusty.com/search?input-form=clusty-simple&v%3Asources=webplus&query=AT%26T+telecom+spying was made up from whole-cloth? it should, rather, remind you that the illusion of i-net ‘Security’ is filled with Holes..
Dude, they don’t call it the World Wide Wiretap (WWW) for nothing..
http://clusty.com/search?input-form=clusty-simple&v%3Asources=webplus&query=world+wide+wiretap
November 5th, 2009 at 6:57 pm
Off-topic but “Onion-esque”, so I had to share.
Goldman, Fed, Citi Getting Preferential Allotments of H1N1 Vaccine
http://www.nakedcapitalism.com/2009/11/goldman-fed-citi-getting-preferential-allotments-of-h1n1-vaccine.html
November 5th, 2009 at 7:02 pm
Manny, just saw that story on NBC news. Have you seen the bigger piggies…
November 5th, 2009 at 7:05 pm
@Transor: I have not, although I’m trying to decide if I should get a shot myself. My specialist sent me a letter advising me too. I’m not normally a flu shot person (never had one or the flu since I moved to Minny four and a half years ago), but I do have a chronic condition and am on meds that keep my immune system in a supposedly weakened state, so maybe I should pay heed?
November 5th, 2009 at 7:07 pm
@Transor: No, I have not. What’s the deal?
November 5th, 2009 at 7:11 pm
The Beatles song. “In their lives there’s something lacking/What they need’s a damned good whacking.”
November 5th, 2009 at 7:21 pm
@youcontrol:
I have my eyes on your pony….perhaps we can settle out of court. I’ll trade you some old GM stock for it…
November 5th, 2009 at 7:25 pm
While bloggers and posters come under attack Paulson gets legally absolved in advance for his Sunday night deals and the Fed defies the FOIL law.
The law only applies to the “little people”!
November 5th, 2009 at 7:30 pm
Thank you CNBC sucks. This time is beginning to remind me of the old days, circa 1998-9. Before cases, we’d sit in the surgery lounge and discuss what we were buying. I am sure many of you did the same thing.
Well, today at lunch the wife of one of my partners was there, and I convinced them about a year ago to do their own study and start investing on their own. The gal took it to heart (they have 4 kids in college at the same time, one in law school, one just back from Iraq, you know..). So they are in debt and need the money for college, mortgage on house, warehouse, etc. Well she and my business manager were heatedly discussing when to exit this market, whether they should do it, gold, all the usual suspects. I couldn’t help but smile. But she has made a tidy sum since March, and they both beat the absolute crap out of their old Merrill Lynch accounts. They now trade with Schwab after she does most of the due dilligence…I am afraid he is never going to be an investor.
Great weekend coming up. Old friends coming to hike tonight. From 500 miles away.
November 5th, 2009 at 7:40 pm
somewhat related are the ACTA Negotiations taking place this week in S Korea (big potential impact on blogs and their contributors)
Michael Geist (Internet law guru etc) has been blogging about the impact for the past few days
http://www.michaelgeist.ca/content/view/4515/125/
November 5th, 2009 at 7:43 pm
B in T-
that’s Mr. Sucks to you- lol
jc-
dude- 99% of America are “little” people- my guess is that any politician who rails against the banks in a populist fashion will win elections- regardless of party
November 5th, 2009 at 8:03 pm
Ahab, I hope so
November 5th, 2009 at 8:05 pm
Fannie is bailing out the banks by picking up their worst mortgages?
November 5th, 2009 at 8:23 pm
Bruce in TN – My pony es su pony….. Just keep in mind it is a dead pony, but always fun to beat. As for your GM stock, you are WAY to generous.
November 5th, 2009 at 8:24 pm
jc-
wrong- fannie and freddie are the secondary mortgage market (although – now it appears- soon to be landlord for vast arrays of housing stock)- anyway-
fannnie or freddie are not the servicers of the mortgage- that could be any bank- banks originate then sell the mortgage to the GSA’s-
they are losing their asses because of the valuations of MBS due to non-performing loans that back them
November 5th, 2009 at 9:27 pm
for more on ACTA, see http://www.eff.org/search?text=ACTA
“…Why You Should Care About ItACTA has several features that raise significant potential concerns for consumers’ privacy and civil liberties, for innovation and the free flow of information on the Internet, legitimate commerce, and for developing countries’ ability to choose policy options that best suit their domestic priorities and level of economic development.
ACTA is being negotiated by a select group of industrialized countries, outside of existing international multilateral venues for creating new IP norms such as the World Intellectual Property Organization and (since TRIPs) the World Trade Organization. Both civil society and developing countries are intentionally being excluded from these negotiations. While the existing international fora provide (at least to some extent) room for a range of views to be heard and addressed, no such checks and balances will influence the outcome of the ACTA negotiations.
The Fact Sheet published by the USTR, together with the USTR’s 2008 “Special 301″ report make it clear that the goal is to create a new standard of intellectual property enforcement, above the current internationally-agreed standards in the TRIPs Agreement, and increased international cooperation including sharing of information between signatory countries’ law enforcement agencies. The last 10 bilateral free trade agreements entered into by the United States have required trading partners to adopt intellectual property enforcement obligations that are above those in TRIPs…”
http://www.eff.org/issues/acta
setting up another ’secret tribunal’, much like the WTO y Otros..
~~
Forbes Says:
good going, linking this back to ACTA..truly related..
November 5th, 2009 at 9:31 pm
I thought Libel required proof of malicious forethought (or some such) that was virtually impossible to prove. Also I think you can’t Libel someone when testifying.
Since virtually NOTHING on the web is created with any forethought, I suspect the Libel cases will be few and far between (well, the nonsense, frivolous ones will be there, but the prosecution will lose).
November 5th, 2009 at 11:07 pm
@bergsten: The point isn’t going to trial; the point is companies (abusively, IMO) using discovery in litigation as a means to “out” anonymous bloggers/commentors and chill public discussion of issues.
November 5th, 2009 at 11:30 pm
@TransorZ — yeah, which is why the Judges (hell, the Clerks) shouldn’t even consent to file/hear the case.
November 6th, 2009 at 12:11 am
If a complaint states a claim that, if proven, entitles the plaintiff to relief, ain’t no dismissal.
November 6th, 2009 at 1:54 am
Don’t get me going on Mortgage Specialists. It was my ex sister in law’s shop. She was Gill’s hatchet lady. All her daughters my niece’s worked there. Got one daughter into a mortgage that she couldn’t afford. Mom made the commission. Pill’s and insanity followed for the daughter but the good news daughter was foreclosed and recovered her mental health. Met her boyfriend in the institution. It’s working out. Mom is up on mortgage fraud charges. Fraud and usual criminal indictments that Goldman Sachs will face.
The funny part of the story is that my sister in law started as a teller and then Countrywide discovered her talents as a mortgage specialist. The heat turned up at Countrywide and Mortgage Specialists hired her. So back in the day when she was divorced through annulment her father calls and asks if I have $5000 for a house downpayment. For my nieces and their mother. Sure. I don’t charge interest but if she can ever pay it back. I do enjoy capital returns. After she flipped the third house and was in a multimillion dollar Mortgage Specialist lake home. I asked if I could have my $5000 back. This was 2007. She acted as if I was an idiot. Mortgage Specialists don’t repay chumps. I thought I’d ask. If I didn’t I’d be reneging my part of the contract. But insult to injury is that though she was annulled from the marriage to my brother with 3 children. Catholicism still sells indulgences. She kept our family name. When she was brought up on charges for mortgage fraud our family name was besmirched throughout the papers. The part of the story to remember is that “The lawyer for Mortgage Specialists says neither claim is true.” The Mortgage Specialist shredders ran hot on the weekends before the indictments came down.
Let us not forget that this Mortgage Specialist criminal behavior would not have been tolerated without securitization. Junkies would not have been able to sell the junk. The deep capture of the Congress by the Shadow Banking System. Greenspan not Madoff was the shrill for the biggest Ponzi scam ever. Give him immunity with 30 days in prison in return for state’s evidence. Sure there are banks that are too big to fail. Build the criminal case. How about starting with “Truth in Lending?” Try them for the crimes against the public. Too big to fail but not too big to sell off. Liquidate their assets. Hold financial meltdown criminals personally responsible. No corporate veil. Sell their assets at auction to repay those harmed. Change is not enough when you are talking trillions.
When you take money from those with criminal intent and aid and abet those with their securities and banking frauds then you are libel to punishment. Campaign donations are bound to criminal law. If a politician receives a legitimate campaign donation then the politician must recuse themselves from legislation that benefits that contributing party to the detriment of the public good. Otherwise it is not a political donation it is a bribe. And the politician is subject to the same legal consequences that the criminal is subject to. The problem with the Senate and Congress is not who is guilty? Who is innocent?
November 6th, 2009 at 9:29 am
MEH; I am not that hot on them there big conspiracy theories to begin with although admittedly there are possibilities for abuse of those brain implants the aliens from CIA stuck in my head
People decide for themselves about conspiracies paranoia and how much they think they can defend themselves against that. The realistic issue is to what extend people can be pulled out by the courts, and in that regard the saved logs that courts are demanding play a key role for protection of sources.
November 6th, 2009 at 10:27 am
DeDude,
It has nothing to do with “conspiracies paranoia”, this: “what extent people can be pulled out by the courts, and in that regard the saved logs that courts are demanding play a key role for protection of sources.” sounds good, but the mechanics of the system, that we’re talking about, operate differently.
assuming one could, via rhetoric, and legal argument, make the case that the sub·poe·naed party didn’t have “logs”/”relevant info”, it is a no guard for anyone’s Privacy…
see: Privacy Coalition Seeks Investigation of DHS Chief Privacy Office: EPIC joined the Privacy Coalition letter sent to the House Committee on Homeland Security urging them to investigate the Department of Homeland Security’s (DHS) Chief Privacy Office. **DHS is unrivaled in its authority to develop and deploy new systems of surveillance. The letter cited DHS use of Fusion Center, Whole Body Imaging, funding of CCTV Surveillance, and **Suspicionless Electronic Border Searches as examples of **where the agency is eroding privacy protections. EPIC Fusion Centers, EPIC Whole Body Imaging, and EPIC CCTV. (Oct. 23, 2009)
Department of Homeland Security releases Fusion Center Privacy Impact Assessment. The Department of Homeland Security has released the Privacy Impact Assessment for the State, Local, and Regional Fusion Center Initiative. The assessment examines the privacy implications of the State, Local and Regional Fusion Centers and the DHS’ State and Local Program Management Office. In May, EPIC prevailed in its freedom of information request to disclose documents describing the federal government’s involvement in efforts to limit Virginia’s transparency and privacy laws and uncovered a secret contract between the State Police and the FBI that **limits the rights of Virginia citizens to learn what information the State Police collect about them. For more information, see EPIC’s page on Information Fusion Centers and Privacy. (Dec. 17, 2008)
http://epic.org/privacy/fusion/
Administration Announces Cloud Computing Initiative, but Privacy Umbrella Missing: Chief Information Officer Vivek Kundra announced the launch of “Apps.gov”, a website where federal agencies can obtain cloud-based IT services. The initiative is aimed at “lowering the cost of government operations while driving innovation.” Currently, the administration’s main goal is to increase the size and scale of cloud computing, but key concerns, such as security and privacy, have received little attention. In March, EPIC filed a complaint with the FTC urging the agency to open and investigation into Cloud Computing services, such as Google Docs, to determine “the adequacy of the privacy and security safeguards.” Subsequently, thirty-eight computer security researchers and privacy academics sent a letter to Google’s CEO, asking Google to uphold privacy promises made to users of Google Cloud Computing services. The FTC investigation is ongoing; no response has been received from Google. For more information, see EPIC’s page on “Cloud Computing”. (Sep. 17, 2009)
EPIC Forces Disclosure of Government Contracts with Social Media Companies, Privacy Terms Missing: In response to an EPIC Freedom of Information Act Request, the Government Services Administration released several contracts between the federal government and web 2.0 companies, including agreements with Blip.tv, Blist, Google (YouTube), Yahoo (Flickr), and MySpace. EPIC also obtained amendments to agreements with Facebook, Slideshare.net, Vimeo.com, and AddThis.com. The contracts do not address the privacy obligations of social media companies. The GSA letter to EPIC explained that “no specific Web 2.0 guidance currently exists,” but provided EPIC with Training Slides that raise privacy issues. The GSA Agreement with Google actually states that, “to the extent any rules or guidelines exist prohibiting the use of persistent cookies in connection with Provider Content applies to Google, Provider expressly waives those rules or guidelines as they may apply to Google.” Some of the agreements also permit companies to track users of government web sites for advertising purposes. For more information see EPIC Social Network Privacy, EPIC Facebook, and EPIC Cloud Computing. (Aug. 12, 2009)
http://epic.org/privacy/cloudcomputing/
House Members Introduce PATRIOT and FISA Reform Bills: Representatives Conyers, Nadler, and Scott introduced two bills today that would amend the PATRIOT Act and the Foreign Intelligence Surveillance Act. The Patriot Amendments Act of 2009 will enhance reporting and judicial oversight of law enforcement powers, including the National Security Letter process. The FISA Amendments Act of 2009 will place new limits on the government’s ability to collect and store Americans’ communications without a warrant and repeals retroactive immunity. For more information, see EPIC FISA, EPIC PATRIOT Act. (Oct. 20, 2009)
PATRIOT Act Revisions Introduced in Senate: Today, Sen. Russ Feingold (D-WI) and seven cosponsors introduced the Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act. The bill would amend the PATRIOT Act, the FISA Amendments Act, and other surveillance and intelligence laws. Among other changes, the JUSTICE Act would reform the National Security Letter process, revise the guidelines for business records orders, eliminate the catch-all provision for “sneak-and-peek” searches, and add new safeguards for FISA roving wiretaps. The JUSTICE Act would also repeal retroactive immunity for telecommunications companies, and is supported by many civil liberties organizations. For more information, see EPIC USA PATRIOT Act, EPIC FISA, EPIC Wiretapping, and EPIC National Security Letters. (Sep. 17, 2009)
http://epic.org/privacy/terrorism/fisa/
sorry, for the long post..
November 6th, 2009 at 7:53 pm
Let me ask the question another way: If someone posts something about you anonymously, do you have a right to know who posted the comment, especially if it is false?
Secondly, why would a blogger want to protect someone who posts false information?
November 7th, 2009 at 9:17 am
@Lynn:
Define “false information” please. And define “you.” Are you a public figure or a private person?
The First Amendment question that Barry brought up originally hasn’t been squarely addressed, which might be causing some confusion because we jumped right to abusive litigation practices. Should the law treat blogging as journalism (i.e. free press, free speech) or as something else? What if the blogger blogs on company or government agency time?
The general rule is that there is no constitutional protection for defamatory speech (which includes written speech). But that is a misleadingly simple statement of the rule because how we define “defamatory” depends on factors like the ones I mentioned above: the target of the speech and the nature of the speaker.
It’s 1973. According to an anonymous source, Richard Nixon personally authorized the Watergate break in. Richard Nixon doesn’t like that statement about him, published in the Washington Post, and is in a powerful position to destroy evidence that would establish the truth or falsity of the statement. At the time of publication, Nixon demands to know the identity of the anonymous source, insists the WaPo has defamed him, and sues. His lawyers demand to know the indentity of Deep Throat.
How would you parse that one out, Lynn?