Sunday, October 09, 2005

Anonymity and the law

Doug Roberts:

For your Bloggers who are interested in what kinds of attacks may be made on their anonymity, have them look at this Delaware case. A city Councilman tried to make the Internet Service Provider (ISP) give up the identity of an anonymous blogger who criticized him. The trial court required the ISP to give it up if the Councilman showed met a standard of good faith: i.e., (1) that they had a

legitimate, good faith basis upon which to bring the underlying claim; (2) that the identifying information sought was directly and materially related to their claim; and (3) that the information could not be obtained from any other source.

The Delaware Supreme court overturned the trial court’s decision and imposed a higher standard: the Councilman (the Plaintiff) has to meet the same standard that he would have to meet to defeat a motion for summary judgment, i.e., the defamation plaintiff, as the party bearing the burden of proof at trial, must introduce evidence creating a genuine issue of material fact for all elements of a defamation claim within the plaintiff’s control. See page 22 of the opinion for the elements of a defamation suit. You can find the opinion at

Apparently the rise of blogs has resulted in a spate of these suits across the country. The Delaware Court raised the bar on disclosure of the anonymous blogger because it held that an important element of the relief that a criticized public figure seeks is exactly the unmasking of the anonymous blogger – exposing the blogger to public ridicule, possible retaliation or retribution. This would put a damper on the first amendment right to free speech, which particularly includes the right to anonymous free speech. Therefore the public-figure plaintiff should be required to meet a higher standard.


George Chandler
Los Alamos NM 87544

P.S.: this message is not intended to be anonymous

It's precisely the behavior of people such as this City Councilman that necessitate the need of anonymous postings. In fact, things with the employer are much worse. The Councilman must got to court to get to the person, paying the lawyer himself unless he can get one on a contingency basis. And, the person can countersue for costs and damages.

With the employee who criticizes the supervisor or manager, there is no due process.
A more interesting question is whether the comment was libelous. If it was, then the official has every reason to take legal measures and then extract damages.

A blog is like a billboard or a newspaper. The owner/publisher bears responsibility for what is on it.

Course, if someone is willing to put up their Harley, houses, and pensions as surety for the opportunity of any old joe who wants to post unfounded allegations, they always have been welcome to do so.

This is a free country--with consequences for those who cross the line of legality. It is expensive to test out those bounds, but there is a whole class of contingency litigators willing to try.

Don't you love the rule of law? ;-)
This is why I decided to post with my name. If I don't have the courage to pay the consequences for my "freedom of speech," then I should probably shut the hell up. A public figure opens himself or herself up to criticism, but that should come within certain bounds.
For the most part, I have to agree with the anonymous "LANL employee." However, a blog is significantly different from a newspaper in that any old joe can have a comment "published." I certainly don't think Doug or Brad should have to pay legal consequences for the libelous statements that have appeared on this blog. It would be unreasonable to assume that they or should have to check the veracity of every single post. As an example, if you say that Nanos was a shitty manager, or that the shutdown shouldn't have taken place, then by all means post away. If you choose to call him a criminal then you better be able to tell what crime he was committed of. I am not a lawyer, but I believe that in that case the word "alleged" should precede any accusation that has not been proven in a court of law.
Because Doug and Brad have been known to delete posts they don't like, they are certainly have the ability to judge whether a libelous post should remain on their blog. Thus they are party to the libel.
Kevid Boland may "have the courage to pay the consequences for my 'freedom of speech,'" but some of the rest of us, having been on the recieving end of retaliation from supervisors at LANL and elsewhere, do not feel so courageous.

I can tell you that there are very many ways to retaliate against subordinates and LANL management is not going to protect you! There is no such thing s "freedom of speech" in the workplace.
Dear "LANL Employee":

Sorry, I will ONLY take legal responsibility for the posts I have signed with my name.

Your lawyer is going to have a devil of a time going after anything else. Go elsewhere with your ambulance-chasing.

-Brad Lee Holian, Lab Associate
What Brad said. In addition, I would like to add that "lanl employee" sounds like a coward. You can quote me on that.

Well Mr. Boland, I believe I have described a number of potential illegalities perpetrated by Nanos et. al. Should we review?

1 Lying under oath before a Congressional sub-committee.

2 Using government funds to cover up personal errors. Those funds add up to $367M that they admit to.

3 Encouraging other LANL employees to conspire to destroy an innocent employee in order to perpetuate the aforementioned cover up. I think killing Todd Kauppila is something that Nanos, Seestrom, and Jones should have to answer for. I was a witness to the stress that was inflicted upon Todd and I know first hand the toll that it took on him.

4 Confiscating exculpatory information from the investigation in order to perpetuate the aforementioned cover up. This action caused a long time LANL employee to quit in disgust rather than become a party to the deceit.

5 Nanos committed numerous security violations that were covered up by S Division and should have been investigated by the authorities.

6 LANL altered and submitted false documents to a California court.

That's a quick summary. It's too bad that nobody seems to care if they get away with it or not.
By the way:

I got home kind of late from band rehearsal, and so I forgot to mention -- I would call "LANL Employee" a coward to his face, but, well, he's too afraid to let us all know who he really is. Maybe he's terrified that his boss will fire him if it is discovered that he's been posting to the blog.

In any event, "LANL Employee" is banned from this blog. He will just have to go create another account from which to hide behind.

Anybody want to take bets on who "LANL Employee" really is?

Let me guess: Gary Stradling?

In glancing back through the blog he is the only one who ever suggested that Roberts be sued because of the content of some of the anonymous posters here. That was before he was banned from the blog for being a repeated public nuisance, that is.

Doug, if he ("LANL employee" aka Stradling) continues to attempt to disrupt this blog, I suggest that you contact and request that his account be revoked.

There is one bit of upside to Stradling's repeated insistence on being such total jerk: LMCO is a daily reader of this blog, and has no doubt figured out what the appropriate career path for Stradling will be after December 1.
I applaud Mr. Horne for having the courage to stand by his word. However poorly stated, that was my whole point. Some people are concerned about workplace retaliation for their statements, but I believe that most of the anonymous posts on this blog are anonymous due to cowardice.
Unfortunately, I think lanl employee has a very good point on this one - the fact that you and Brad have editorial discretion (and a fairly limited post-load) on this blog would open you up to libel suits. This is because any plaintiff can argue that your decision to allow an ostensibly false statement to remain on the blog is the same as actively making the same statement.

Let's illustrate. Imagine(!) that UC loses the bid. They've lost millions in the bidding process, and the lab to boot. Now, imagine that someone with first-hand access to the decision-making process gets quoted as saying that information posted on this blog influenced the decision to hand LANL to LockMart. What would UC do then?
The answer is that UC would go through this blog line by line looking for libelous or defamatory statements that could arguably have influenced the decision. Then, once UC found something that was not factually supported (as much of the more abusive and small-minded anonymous posting on this blog has been) they will sue you and Brad. They can do this because the decision to let a questionable post be (especially when you're actively deleting and blocking posts that offend you) is legally equivalent to posting the same statement yourself. First amendment rights would not protect you because UC would be able to demonstrate real and immediate harm (as with the Apple bloggers). You may still win, but it would be a long and expensive process.
So, in short, lanl employee was making a legitimate point.
Well, guess we'll see, won't we? The loser is welcome to use all my contributions to the blog for the lawsuit. Those, btw, can be found by looking for any post or comment signed "Doug Roberts".

I believe can supply the loser's lawyers with the sources for those anonymous comments that will have supposedly caused them to, you know, be the loser.

See y'all in court!

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