Defamation or Free Speech?

Here's the story so far. Rod Dreher started westfeliciana.blogspot.com, another blog, back in May to discuss local politics in West Feliciana, LA. There was a big controversy about something called the Home Rule Charter (HRC). Some people started discussing aspects of it on a Topix forum post. Topix is a very successful and popular forum for discussing local current news events, debating politics, making announcements, etc.

Rod became upset regarding reports of alleged bullying and he posted his reaction here. In this post he presents two conflicting opinions about the Topix forum post.

There's been some talk, in public meetings and on Facebook, that some people are afraid to speak out about the Home Rule Charter issue because they feel intimidated, and have been "bullied."

I don't want to say that it's never happened, only that it hasn't happened to me. If "bullying" means some anonymous jackass said slanderous things on Topix, then sorry, I don't count that. Those people are cowards, and should be completely discounted.

This is the first opinion, that anonymous Topix forum cowardly jackasses don't count. He doubles down on this opinion later:

But if people are only worried that some idiot on Topix is going to say mean things about them, sorry, but I can't take that seriously. I'm told they trash me all the time on that site. Big deal.

Then he makes this pronouncement:

By the way, you may not know this, but a Texas couple won $14 million last year in a defamation lawsuit against anonymous posters on Topix who libeled them. A Texas judge compelled Topix to release their IPs, which led the plaintiffs directly to those who had libeled them.

I am eager to talk to a lawyer who would be willing to file a libel suit on contingency against these anonymous Topix commentators, the identities of which Topix can be compelled to reveal (or at least their IPs). Sooner or later, the West Feliciana people who have been libeled anonymously on Topix are going to be able to find out the identities of those who have defamed them. And when they do, they are going to own those people, and their nice houses. If you know what I mean.

Do we have a lawyer in town who would be willing to sue Topix to compel them to release the IPs of our local slander trolls? Get in touch with me -- I'd love to be party to that lawsuit. I bet some others would too.

Now we originally laughed at this post, and it's still pretty funny on its own. It seemed like a serious overreaction, probably a Rod-got-up-on-wrong-side-of-bed kind of thing or Rod-ate-too-much-and-drank-to-much-last-night kind of thing. Here's why. The link about the Texas couple explains the nature of the actions of the defendants in the defamation suit.

Mark and Rhonda Lesher of Clarksville, Texas, filed a suit against anonymous commenters who accused them of being sexual deviants, molesters, and drug dealers on Topix, once self-described as "the country's largest local forum site."

"This vindicates us. This is vindication for all the scurrilous, vile, defamatory statements that caused us to be indicted, to be tried, that caused us to move out of town and my wife to lose her business," Mark Lesher said, the Texarkana Gazette reported. "You can't post anonymous lies on the Internet without suffering the consequences."

Furthermore, and this is what really blew me away:

Since reports of the rape allegations began to surface in 2008, more than 25,000 comments, on about 70 threads related to the trial, were posted on Topix message boards for anyone with a search engine to see.

I started this in 2007 and have posted — along with Pikkumatti and Kathleen — a total of 2,180 posts on this blog. Twenty-five thousand is a big number. I can't imagine going into the confessional and saying "Father, I bore false witness against my neighbor 25 thousand times since my last confession." There's no way the derogatory comments about Dreher amounted to anything close to this. There's no big payout here, chumps; keep playing the Louisiana Lottery.

As far as I could see after reading all the comments on the aforementioned Topix site, there is nothing accusing Rod Dreher or Ellen Kennon or Becky Hilliard or any of their friends in this whole political argument of felonious behavior, of raping and molesting people, of dealing drugs, grand theft, racketeering, eating at chain restaurants, shopping at Wal-mart — nothing like that. The strongest accusations I saw pretty much stated that Dreher didn't know what he was talking about and that he was stirring up racial tensions. That's just criticism, not libel or defamation. I seriously couldn't believe that he made the comparison of criticisms against him to people who had lost their business over false accusations of serious criminality. What makes it even harder to buy is that Dreher doesn't disclose the details of the supposed defamation; he doesn't even provide a hint. Was it a comment — possibly deleted — about dealing drugs or child molestation? Or was it something of the Justin Bieber eats poop variety? We don't know; he doesn't say.

"I'm told they trash me all the time on that site. Big deal." That attitude seems to change by the end of the post, and it most certainly changed a week later on July 16 when he put up a post about defamation charges filed by himself and Ellen Kennon titled Defamation.

Ellen Kennon and I met with detectives from the Sheriff's office this afternoon to discuss the possibility of pressing criminal defamation charges against anonymous Topix commenters. Filing charges would be the first step in unmasking them and holding them accountable for the defamatory things they've said in public under the cloak of anonymity.

In my case, there are lots of items trashing me, but given my job, I have the status of a "public person" in terms of libel law. People can say things about me that they couldn't get away saying about someone who was a "private person" in the eyes of the law. Still, I identified two or three specific posts involving me that, in my view, constitute criminal defamation, especially insofar as they make reputation-damaging assertions that are provably false, as well as malicious, and that hurt my professional and personal reputation. See the Louisiana statute below.

It is possible that the investigation will not find that there are sufficient grounds to determining criminal defamation (which is a misdemeanor), and either the DA will choose not to press charges, or the judge will not find sufficient grounds to subpoena Topix's records -- in which case our only recourse will be in civil court. We'll see where this goes. I can report, though, that there is a criminal investigation underway. I know there are lots of people in this parish who have been slandered on Topix, but who felt that they couldn't do anything about it. Well, maybe you can, if the anonymous trolls cross certain legal lines. Like I said, we'll see.

Rod Dreher has lamented his status as a "public person" before. But he has benefited from being a public person, so I don't see why he shouldn't suffer the slings and arrows of his outrageous fortune. My aunt died really young and my dad didn't even get a lousy t-shirt out of the tragedy, let alone a $1 million book advance. I'm not entirely sure his statement "People can say things about me that they couldn't get away saying about someone who was a 'private person'" is true. Over the years I've pointed out what I believe are inaccuracies, inconsistencies and absurdities in Dreher's viewpoints, especially in his anti-Catholic knee-jerks. None of this amounts to libel or any kind of defamation, and I don't see why it would if I accused my next door neighbor of the same thing. My neighbor does not publish a blog or do any writing so it would probably be considered bad form to criticize opinions he expressed to me in private ("I can't believe my neighbor, Jim ______, thinks Chevys are better than Fords; what planet is he from?"), but the idea that I couldn't get away with saying it because he is a "private person" is simply not true.

So when he speaks of the "lots of items trashing me", do any of these rise to the level of libelous or defamatory? I didn't see any on that post. And he admits that it's likely that there will not be "sufficient grounds to determining criminal defamation". So the announcement that there's a criminal investigation underway has one primary purpose as I see it: to put a chilling effect on free speech. Does this work? I think it might in some cases. People start to worry, thinking "Uh-oh, did I tick him off with my remarks? Will he make trouble for me? Will they release my IP address in the court case?" This is probably because they don't know what constitutes libel nor how difficult it is to prove.

But there is an off chance that people might be dragged into court over this matter. Maybe Angela Corey will be disbarred in Florida and become the DA of Baton Rouge, I don't know. That is why I have started the First Amendment Defense Fund (FADF). It's basically a PayPal account. This fund has the specific purpose of defending people who comment on Topix and are named in this frivolous lawsuit filed by Rod Dreher and Ellen Kennon. Hopefully we won't need to pay anything out, so if that's the case after 6 months or so I'll return all the contributions. I started out by contributing $25 to the fund.

I don't think I have anything more to say about this right now, except that I think Rod's anger mainly stems from the fact that he cannot delete comments on Topix like he can on his own blog. Here's one last comment on the HRC thread from commenter Billfr:

The biggest winners, though, will be all those other local SF-WFP residents who will be filing criminal complaints with the sheriff against the people they think wronged them here on Topix and launching criminal investigations through the sheriff's office too. Not only will they be able to smack around people they might have disliked for some time and even sue them for some money, with all the national stories being spun out of this, I wouldn't be surprised if a few other locals also got their 15 minutes of media fame, just like that Zimmerman witness Rachel Jeantel. I think that guy Pauli in Cleveland is already blogging about this, I don't doubt others have already picked it up too at least in BR [Baton Rouge], and Rod himself would be foolish not to tip off his colleagues everywhere he has them. There's no such thing as bad publicity, at least not for Rod.

Lol. Well, again, criticism does not equal defamation, and any smart person knows this.