Tuesday, November 13, 2007

Bloggers And The Law - On Orthomom, Avis and Bill O'Reilly

Three interesting stories came to my attention today about bloggers and the law.

In the cases below, we'll canvas situations in which legitimate bloggers have, respectively:

  • fought and defeated a politician's frivolously defamation suit;
  • stared-down a borderline trademark infringement complaint by a major corporation; and
  • faced appaling harrassment and personal intimidation by a powerful media adversary.

In each of these recent instances, a blogger stuck his or her proverbial neck out, and faced some fairly serious ramifications. All involve efforts, legal or extra-legal, to suppress free expression by bloggers and by extension, free speech on blogs, generally.

Of equal importance, each of these bloggers stuck to his or her guns, and refused to back down.

There is much debate about whether bloggers are really journalists, at all.

My view is that while this clearly varies from blog to blog, with many in the gray zone, serious bloggers undoubtedly must address many of the same concerns, liabilities and challenges that professional journalists face on a daily basis.

The law will confont this gray zone, increasingly, as the blogosphere's influence expands and citizen journalism's legitimacy and power become more firmly entrenched.

Blogging is not without its risks - or its principles.

I'll probably have much more to say on this topic in the future, but for now, that's the short-form.

So let's take a look at the cases....


Court Protects Identity of Anonymous Blogger

A New York Superior Court Judge has refused a petition for an order that Google disclose the name of the anonymous blogger who writes the "infamous" Orthomom blog.

(That's Ortho, as in Orthodox Jewish Mom, in case you were wondering).

Robert Ambrogi's law blog reports on the case:

The petitioner, Pamela Greenbaum, a school board member in Lawrence, N.Y., brought a pre-action discovery proceeding seeking to force Google to disclose the author of the blog Orthomom, which Google hosts on its Blogger service

In a decision issued Oct. 23, Manhattan Supreme Court Judge Marcy Friedman concluded that Greenbaum had not shown that she has a meritorious claim for defamation and therefore is not entitled to disclosure of the blogger's identity. Friedman wrote:

[T]he court ... finds that Orthomom's statements are not reasonably susceptible of a defamatory connotation. Greenbaum's defamation claim against Orthomom reduces to the insupportable assertion that Orthomom implied that Greenbaum is an anti-semite merely because Orthomom disagreed with Greenbaum's position on the use of public funding for a program that could have affected the Orthodox Jewish community.

Because the blogger was expressing her opinion about a fact that was not in dispute, her statement was protected by the First Amendment, the judge said.

Orthomom, herself, commented on the ultimate dismissal of the case against her:

I guess Ms. Greenbaum should have considered being a little less sensitive to the criticisms of her policies as she saw them on these pages. It would seem to me that her attempts to muzzle me and my commenters from disagreeing with her actions as an elected official have potentially bought her a far bigger headache that any of the original comments in question may have brought on.

She also comments here:

The bottom line here is that this failed attempt to quell free speech has instead served to reaffirm the First Amendment right or each one of us to speak freely without fear of retribution or ramifications. The fact that a public official attempted to muzzle vocal critic of her policies by filing a meritless suit that included false claims and smears against my truthfulness is appalling - and the judge's decision clearly shows that the law is against such attempts. The fact that in the process, Ms. Greenbaum succeeded only in publicly smearing her own reputation and integrity is gravy.


Trademark - Use of Logo on Blog

Web Pro News details the clash between U.S. law blogger Eric Turkewitz and car rental company Avis.

Avis objected to Turkewitz' use of the Avis logo on his blog, New York Personal Injury Law Blog.

The logo image was used by Turkewitz to add a topical, graphic touch to a blog entry entitled Car Rental Immunity Law Held Unconstitutional By Federal Judge.

Avis subsequently demanded that the image be removed:

We have the greatest respect for your right to express your opinions on your blog, but that does not include the right to use Avis' trademark as you have done in this particular piece.

Understandably, trademark law is not within your area of expertise. Therefore, we trust that this was done out of ignorance and not based on an intent to misuse our mark to the benefit of your personal injury practice.

We ask that you remove it immediately and refrain from any similar use in the future.

Turkewitz responded:

Having thought about the issue, and discussed it privately with some, and seen public comment from others... I am at a loss to figure out exactly how your trademark claim trumps my free speech rights. Since, as you believe, trademark law is not within my area of expertise, and that I am simply ignorant, perhaps now is the time for you to set forth exactly how and why I should surrender my constitutional rights to your company.

So send me a proper cease and desist letter. Set forth for me with specificity your claims of legal superiority. You now have the opportunity to demonstrate your expertise and analysis in this arena since I, as you indicate, am simply too ignorant to know it myself.

Until you do that, however, I will assume your threat is an empty attempt to bully and intimidate. And so, the mark remains on my original post.


Fox News - Intimidation of Blogger by Complaint to His Law School

Finally, Raw Story reports that Fox network Vice President Dianne Brandi has allegedly written to the dean of the University of Virginia's law school, urging an investigation into the conduct of blogger Mike Stark.

Stark is a second year law student at Virginia, and operates a liberal blog, Calling All Wingnuts. He is somewhat notorious for his aggressive criticism of controversial Fox broadcaster Bill O'Reilly.

In her letter to the law school, Brandi allegedly accuses Stark of "violating the university's codes of conduct," and asserts insultingly that Stark "would have trouble passing the fitness review required for admission to the bar."

According to Raw Story:

The showdown began with Stark's calls to O'Reilly's radio show -- "telling the truth when he didn't want to talk about the truth," as Stark characterizes it -- and escalated to a videotaped confrontation in O'Reilly's driveway.

Brandi claimed the visit amounted to harassment, but Stark said he sees it as a reasonable response after O'Reilly sent a producer to the home of Jet Blue CEO David Neeleman when the airline sponsored this summer's YearlyKos conference of progressive bloggers and activists.

O'Reilly made YearlyKos one of his favorite targets in August, when he smeared the conference's namesake blog, Daily Kos, with a few offensive comments dredged from the thousands posted by readers every day. Stark accosted O'Reilly at his Manhasset, NY, home and implored him to "stop lying" about the blog. He also distributed copies of a 3-year-old sexual harassment lawsuit filed against O'Reilly to his neighbors and displayed signs branding the host a pervert -- actions some say cross ethical boundaries.

While Stark is hardly blameless, the Fox effort to undermine his future and livelihood by attacking his tenure as a law student certainly casts a new highlight on the protections journalists require from retaliatory actions that could have a chilling effect upon the press.

In this case, however, it is the press itself that has apparently engaged in bullying tactics to intimidate a rather vocal critic.

Thumbs way down, Fox News.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net


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