The IIPM issue in India provides me with a great opportunity to educate SM readers and fellow bloggers about the assault of late on a precious (but little known) liberty here in the United States of America.  It is the fundamental, God-given right to blog!  A few weeks back we received what was intended to be a “Cease and Desist Notice” from someone claiming to be the lawyer of a person that we had written about on SM.  This “lawyer” threatened legal action and dire consequences unless we took down the “libelous” statements against their client.  However, in none of our posts had we made any libelous statements about the semi-celebrity in question.  Rather, it was some of the commenters to our site that had written what might be considered rude.

Dear Sir or Madam,

I represent the legal interests of ########. The content on your site contains libelous information that is against the interests of my client ########. The information on your website cannot be verified and contains defamatory, heresay information.

We are firmly requesting that you take down this web site within 24 hours. We are prepared to take legal action against your company and will sue you at the full extent of the law for punitive damages.

This notice was followed by several others (including a “second notice” time stamped two minutes after the first one) that increasingly led us to believe that this lawyer was either a friend of the person we had offended, or the person themselves posing as a lawyer.  Making a few spelling mistakes and citing laws that seem sketchy, sort of erode one’s credibility.  Getting sued over this might have been a welcome experience though.  I have always sort of dreamed of representing myself in front of the Supreme Court, grilled by Scalia, and waking up to that goddess Nina Totenberg re-capping my oral arguments on NPR as I lay in bed the next morning in rapture.  I coulda’ been a contenda’.  Having reviewed the relevant precedents, we think we would have done quite well in court if slapped with a lawsuit.  I am what people would term a Constitutional Originalist. Who am I to doubt what the Framers originally put into the Constitution?  Who am I to question or re-interpret their original intentions?  Let me direct you to Article IV Section 4 of that most sacred of documents:

The United States shall guarantee the rights of every Blogger in this Union, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence and frivolous lawsuits.

We offer these additional references to any American blogger who finds themselves in a situation similar to the one we faced:

…John Doe No. 1 v. Patrick Cahill and Julia Cahill (PDF), began with a series of messages posted to a site referred to by the court as the Smyrna/Clayton Issues Blog. On September 18, 2004, an anonymous participant using the pseudonym “Proud Citizen” posted a message critical of local city councilman Patrick Cahill (emphasis added by the Delaware Supreme Court):

If only Councilman Cahill was able to display the same leadership skills, energy and enthusiasm toward the revitalization and growth of the fine town of Smyrna as Mayor Schaeffer has demonstrated! While Mayor Schaeffer has made great strides toward improving the livelihood of Smyrna citizens, Cahill has devoted all of his energy to being a divisive impediment to any kind of cooperative movement. Anyone who has spent any amount of time with Cahill would be keenly aware of such character flaws, not to mention an obvious mental deterioration. Cahill is a prime example of failed leadership, his eventual ousting is exactly what Smyrna needs in order to move forward and establish a community that is able to thrive on its own economic stability and common pride in its town…

These statements infuriated Cahill, who felt he had been defamed. Cahill and his wife decided to sue Proud Citizen, but first they had to find out who he was. Their lawyers conducted a deposition of Independent Newspapers, owner of the online forum. They revealed Proud Citizen’s IP address – the numerical address that can be traced back to his computer’s Internet connection. Armed with this information, they soon determined that Comcast owned that IP address, so the Cahills obtained a court order to force Comcast to reveal Proud Citizen’s identity. When Comcast received the court order, they informed Proud Citizen, who promptly filed an emergency motion for a protective order to protect his anonymity. [Link]

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p>This is very similar to what the supposed lawyer was trying to do to us.  They wanted us to delete the comments following our post (without specifying which ones) or else they would sue (either us, or to obtain the identity of the commenters).  Cahill won his case against “Proud Citizen”…at least until it got to the Delaware Supreme Court which reversed the decision in favor of “Proud Citizen”:

In the court’s ruling, Chief Justice Steele laid out their thinking on the matter. Like so many Internet-related cases before it, the ruling took great pains to note the unique nature of the Internet:

The internet is a unique democratizing medium unlike anything that has come before. The advent of the internet dramatically changed the nature of public discourse by allowing more and diverse people to engage in public debate. Unlike thirty years ago, when many citizens [were] barred from meaningful participation in public discourse by financial or status inequalities and a relatively small number of powerful speakers [could] dominate the marketplace of ideas, the internet now allows anyone with a phone line to become a town crier with a voice that resonates farther than it could from any soapbox.  Through the internet, speakers can bypass mainstream media to speak directly to an audience larger and more diverse than any the Framers could have imagined.  Moreover, speakers on internet chat rooms and blogs can speak directly to other people with similar interests. A person in Alaska can have a conversation with a person in Japan about beekeeping in Bangladesh, just as easily as several Smyrna residents can have a conversation about Smyrna politics…

“Apart from the editorial page,” he continues, “a reasonable person reading a newspaper in print or online, for example, can assume that the statements are factually based and researched. This is not the case when the statements are made on blogs or in chat rooms…” [Link]

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p>Ha.  Take that!  The New York Times has a great article summarizing the case:

“There are some conversations that are undeniably improved when the rule going in is that you have to stand behind what you say and have to wear a name tag when you do it,” said Jonathan Zittrain, who holds the chair in Internet governance and regulation at Oxford University and is a co-founder of the Berkman Center for Internet and Society at Harvard Law School. “But that’s certainly not all conversations. People might be prepared to ethically stand behind what they say, but might be in a position that they can’t afford to lose their house over it. Speech shouldn’t just be for people with lawyers.”

In other words, without robust protections for anonymity, which the Supreme Court called “a shield from the tyranny of the majority” in the 1995 case McIntyre v. Ohio Elections Commission, just the threat of lawsuits would have a chilling effect on free speech. And it is worth noting, too, that the Delaware court reaffirmed the notion that however distasteful – even stupid – one might find the “speech” on Internet blogs and bulletin boards, at least some of it belongs to an “honorable tradition of advocacy and dissent.”

It’s a line of thinking that sagely connects the “Proud Citizen” of modern-day Smyrna to Alexander Hamilton, John Jay and James Madison, who in 1787 and 1788 all took to the newspapers under the pseudonym Publius, urging New Yorkers to ratify the Constitution.

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p>Can I get a “hell yeah”, or an “Amen brother.”  I actually often think of myself as a modern day Alexander Hamilton (except I don’t duel).  In conclusion I have some advice for all the bloggers out there.  Don’t let the machine get you down.  Stand up for what you believe in, and most of all remember these words that were uttered recently on a nearby battlefield and may provide some inspiration:

“I am the Mad Blogger, and I see a whole army of my blogsmen, here in defiance of tyranny! You have come to fight as free men [and women]. And free men you are! What will you do without freedom? Will you fight?”

“Two thousand against ten?” [a disgruntled blogger in the background shouts]. “No! We will take down our blogs – and live!”

“Yes! Fight and you may end up broke. Run and you will have some money in your pocket and keep your day jobs, at least awhile. And lying in your bed many years from now, wishing that you had a blog, would you be willing to trade all the days from this day to that for one chance, just one chance, to come back here as young bloggers and tell our enemies that they may take our lives but they will never take our blogs!”

FREEEEEDOOOMMMM!

[note to reader: any criticism directed at either this post or me for the sentiments expressed here will be grounds for banning you from leaving comments on SM in the future, and may be grounds for legal action if severe enough.]