Oops is in a way how FBC Jax Watchdog was robbed of his anonymity.
Although some evidence pertaining to the involvement of State Attorney Angela Corey was somehow inadvertently destroyed.
Really, and that destruction is cited as part of an argument against deposing Corey as part of the proceedings.
A Florida federal district court refused this week to dismiss the claim by blogger Tom Rich (FBC Jax Watchdog) that Assistant Fla. State Attorney Stephen Siegel violated Rich’s right to speak anonymously, and trampled on the Establishment Clause because defendants had no secular purpose for their actions.
The lawsuit alleges Siegel issued subpoenas that helped Jacksonville police officer Robert Hinson — who was a member of First Baptist Church of Jacksonvilla, Fla. — identify Rich when there was no evidence of criminal activity.
Dismissed in the same action were civil claims against State Attorney Angela Corey for her office’s role.
Rich’s claims against the police officer and against First Baptist were unaffected because they weren’t involved in this motion to dismiss.
Emerging standards for unmasking anonymous bloggers were certainly not met in Rich’s case.
To prevail in this instance, Rich must now prove the violations he alleges. But even at this juncture, the case is a caution for those who would twist legal authority to unmask an anonymous blogger without compelling legal justification. Abuse of power has a price.
[H/T: Religion Clause]
The Obama administration should make it clear to Uganda, now, that passage of the anti-gay law will result in a cutoff of aid. That “legislation is a violation of human rights,” as Assistant Secretary of State Johnnie Carson said Friday. Embodiment of the hate it represents in law, without answering consequences from more human nations, will encourage others to take similar actions.
Oppression is already a fact of life for the Ugandan gay citizenry. The New York Times wrote in an editorial on Monday:
The government’s venom is chilling: “Homosexuals can forget about human rights,” James Nsaba Buturo, who holds the cynically titled position of minister of ethics and integrity, said recently.
What makes this even worse is that three American evangelical Christians, whose teachings about “curing” gays and lesbians have been widely discredited in the United States, helped feed this hatred. Scott Lively, Caleb Lee Brundidge and Don Schmierer gave a series of talks in Uganda last March to thousands of police officers, teachers and politicians in which, according to participants and audio recordings, they claimed that gays and lesbians are a threat to Bible-based family values.
Now the three Americans are saying they had no intention of provoking the anger that, just one month later, led to the introduction of the Anti-Homosexuality Bill of 2009. You can’t preach hate and not accept responsibility for the way that hate is manifested.
The U.S. should also lead diplomatically in standing against this evil.
Christa wants to sing sleeping Southern Baptist Convention consciences awake to their neglect of trusting Baptist Children.
The arbitrary disregard of the Jacksonville Sheriff’s Department for Thomas A. Rich’s right to anonymity as the FBC Jax Watchdog blogger could not meet the standards set by the District of Columbia Court of Appeals last Thursday, or of other lower courts which have ruled on similar matters.
FBC Jax Watchdog’s anonymity was stripped away without prior notice in a still unsatisfactorily explained criminal investigation over which no charge was filed and which produced no court action. Although the DC case involved defamation[.pdf], the standards are nonetheless clear.
A subpoena associated with a well-pleaded claim and the opportunity to contest it are required to consider breach of online anonymity:
- Ensure that the plaintiff has adequately pleaded the elements of a defamation claim.
- Require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served.
- Delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash.
- Require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control.
- Determine that the information sought is important to enable the plaintiff to proceed with his/her lawsuit.
The consensus of the lower courts is that disclosure of an anonymous blogger’s identity requires painstaking court consideration. Lack of that is not excused by the dismissive statement[.pdf] of the Jacksonville, Fla., Sheriff John Rutherford.
The court also perceived the danger of relying on procedural labels like “prima facie” and “summary judgment” and distilled the most important common feature of the competing tests in this area — that a plaintiff must make at least a substantial legal and factual showing that his/her claim has merit before a court will unmask an anonymous or pseudonymous Internet speaker.
As The Reporters Committee for Freedom of the Press explained, the D.C. court “noted that states vary widely in what test a defamation plaintiff must meet before it can compel a third party to turn over the identity of an anonymous speaker. Virginia, for example, ‘requires only that the court be convinced that the party seeking the subpoena has a legitimate, good faith basis’ for its claims. But the D.C. court ruled that this lax test
‘may needlessly strip defendants of anonymity in situations where there is no substantial evidence of wrongdoing, effectively giving little or no First Amendment protection to that anonymity.’ “
When anyone’s First Amendment protection is trampled, we are all harmed.
FBC Jax Watchdog’s anonymity was silently demolished by an unsatisfactorily explained and, from the point of view of the blogger, secret criminal investigation.
Anonymous blogs permit the relatively powerless to speak what they believe is truth, to power. Sometimes the power is a church, as we see in the confrontation between First Baptist Church of Jacksonville, Fla. and FBC Jax Watchdog, and risk still attends attempting to say to power things it would prefer not to hear.
The unmasking of Thomas A. Rich as Watchdog, detailed in Florida Times-Union, closely resembles the July attempt by the Bronx (N.Y.) District Attorney to use a grand jury subpoena to unmask and silence critical anonymous bloggers and commenters on the NYC political blog site called Room 8. With the help of Public Citizen, Room 8 successfully resisted disclosure.
We do not know how Google responded to the subpoena it received. Not only does Google have an official policy of not commenting on subpoenas or other legal processes, but also, subpoenas associated with criminal investigations are typically attended by gag orders (Room 8 responded by threatening the Bronx DA’s office with a countersuit). Nor has Watchdog thus far been able to obtain a copy of a subpoena he believes Comcast honored.
We do know that no wrongdoing was found, yet the investigating Jacksonville Sheriff’s Department officer apparently chose to breach the blogger’s anonymity by disclosing his identity to FBC Jax. We also know that Thomas A. Rich’s life was disrupted as a result. He was denied access to his (now) former church, publicly excoriated in an official church action and this week was described as a “sociopath” by the pastor who has been the principal subject of his blogging.
We don’t know in persuasive detail what criminal allegations were believed to justify that intrusion of police power into Rich’s life and the lives of two other bloggers. As a result, whether those allegations can withstand the light of day is an open question. Serious issues of conflict of interest (the investigating officer is an FBC Jacksonville member and apparently among those who provide security there) and as a result abuse of power, have been raised by the association of the detective’s investigation with attempts to silence the then anonymous blogger.
Such issues are typically best resolved by full disclosure, for this has become in considerable part a debate over public policy, and specifically over whether the force of law was properly applied. Given the issue’s visibility, the local and state public officials involved must tell truth and trust the people, or absent a thoroughly compelling explanation for silence, find themselves indicted by the appearance of concealment.
If the purpose of the investigation and disclosure was to end Watchdog’s commentary on matters of general interest to his audience, it failed and those who applied the pressure have put themselves in the fire.