Watchdog settles with city/state (not FBC Jacksonville)

Jacksonville, Fla., blogger Thomas Rich, who until unmasked in an unjustified criminal investigation blogged anonymously as FBC Jax Watchdog, has settled his suit against the city and state.

Terms include, Watchdog explains:

• A $50,000 payment to Rich.
• A meeting with Jacksonville Sheriff John Rutherford to discuss ethics issues to help develop “conflict of interest code for its detectives.”
• Development and implementation of “a training program for JSO detectives specifically on constitutional First Amendment issues and legal ramifications that must be considered when issuing investigative subpoenas.”

Rich’s attorney, Michael Roberts, said the separate defamation suit against the First Baptist Church of Jacksonville will continue.

The suit was filed after FBC Jax Watchdog’s anonymity was silently demolished in 2008 by a still unsatisfactorily explained and, from the point of view of the blogger at the time, secret criminal investigation. The settlement did not involve an admission of fault.

Anonymous blogs permit the relatively powerless to speak what they believe is truth, to power. Power rarely responds graciously. In this case, the unmasking and FBC Jax Watchdog had a serious impact on his life. As his attorney explained:

“Mr. Rich was essentially excommunicated from his church,” his attorney, Michael Roberts, said. “He was a member for 20 years. Sure he was critical of the new leadership at the church, but a lot of members were critical of things they didn’t like.”

The bylaws governing resolution of grievances within that church were and apparently still are heavily loaded against dissent. This case illustrates that an oppressive approach tends to drive debate underground — often into anonymous blogs — and unmasking the blogger does not eliminate that dissent or refute the criticisms. A heavy-handed response in fact underlines the social value of dissent and of the dissenter’s efforts.

Oops? Again? In the case of FBC Jax Watchdog

Oops is in a way how FBC Jax Watchdog was robbed of his anonymity.

Formerly anonymous blogger Thomas A. Rich’s identity was made public after an unnecessary investigation whose details are still being unearthed in court.

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.

“Oops!” indeed.

Another injustice.

Court allows FBC Jax Watchdog case against Assistant State Attorney to proceed

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]

Pro bono and reduced-fee legal help for bloggers/journalists

Have legal matters like those entangling bloggers like Spiritual Samurai(blog deleted) and FBC Jax Watchdog left you wary of either nonprofit public service blogging or information service entrepreneurialism?
For those serious about public-interest information gathering and publication, there is a new source of help.
Mac Slocum at Nieman Journalism Lab writes today:

The Citizen Media Law Project at Harvard’s Berkman Center doesn’t want those entrepreneurial instincts to wither on the vine. It’s just launched an ambitious collection of free legal resources called the Online Media Legal Network (OMLN), the centerpiece of which is a matchmaking service that connects online publishers with attorneys who can address their specific needs. It’s a full-service effort, covering everything from basic business structure to contracts to representation in court.

The doors are open to one and all who meet the network’s requirements. In general they consider:

• Viability. We believe that limited resources can have the greatest impact when focused on ventures that are economically viable and/or sustainable over time.
• Adherence to journalistic standards. We seek to support ventures that practice the journalistic standards of truth, fairness, and transparency.
• Innovation. We’re looking for ventures that are at the forefront of efforts to harness the Internet to revolutionize journalism and fill unmet market needs.
• Independence. The network will primarily support media ventures that are independent of the traditional media or corporate ownership.
• Original reporting. Preference will be given to ventures that create their own original reporting, or that use traditional news sources in new and innovative ways.
• Public interest. Priority will be given to ventures that serve the public interest, including those that fill important information needs or foster a sense of community.

Pro bono and reduced-fee assistance are available and the project anticipates dealing with a wide range of publication and newsgathering needs.

From Sister Carrie to Belle de Jour

Dr. Magnanti

Persuading to our daughters that heroine Bella Swan in The Twilight Saga: New Moon isn’t someone “any young girl should aspire to be” may be far easier than dealing with Belle de Jour.

Billie Piper as Belle de Jour. She meets Magnanti in 2010 in an ITV2 documentary, “Billie and the Call Girl Bare All.”

Bella’s boyfriend is a pathetic, nonexistent vampire. Bella doesn’t exist either, for that matter, no matter how hard twihards may wish.

Whereas Dr. Brooke Magnanti is “a respected specialist in developmental neurotoxicology and cancer epidemiology in a hospital research group in Bristol,” England. She proclaims herself to have worked as a prostitute, to have blogged it anonymously (until she “outed” herself) at Belle de Jour and to be the author of the bestselling books about her now not-so-secret life.

Sister Carrie was a scandal of a Theodore Dreiser novel because the heroine wasn’t punished for her indiscretions. Whereas Magnanti is a towering success. Her employer stands by her (What? You wanted her fired and maybe back on the street?).

She is of course unapologetic, but promises we’ll understand more after the ITV2 documentary. Of it she said:

This show will be the last word on what it was like to be Belle: how my sexuality was formed, how I came to the work, what it’s like to be portrayed on TV.

Viewers will get an exclusive look at the real woman who lived as Belle, actually becoming her one final time.

That’s going to help us with out daughters? We’ll think of something. Nothing simple, though. Life isn’t.

FBC Jax pastor Brunson expresses limited remorse

Pastor Mac Brunson of FBC Jacksonville, Fla., preached on Nov. 1 a sermon in which he alluded to remorse, apparently for statements he made in April about Thomas A. Rich, the formerly anonymous blogger who blogs at FBC Jax Watchdog.

Brunson did not ask for Watchdog’s forgiveness, even touch in passing on the manipulation of the Jacksonville [Fla.] Sheriff’s Department or acknowledge the fundamental abuse of power that is at the core of events there. There was, similarly, no mention of the emptiness of his church’s argument in court that Watchdog’s suit should be dismissed because action will “require excessive entanglement [by the courts] in church policies, practices and beliefs.”

FBC Jax Watchdog is more confident than we that the sermon is something other than a pass at damage control, directed at his parishioners, and driven by the lawsuit Brunson precipitated is likely to see lost.

Review the sermon [Itunes podcast] and read FBC Jax Watchdog’s assessment here.

Wrong issue, FBC Jax

Seriously? The First Amendment means the church is above the law?

First Baptist Church of Jacksonville attorneys argue that a fraud, misrepresentation and defamation suit by the formerly anonymous author of FBC Jax Watchdog should be dismissed because ruling “require excessive entanglement [by the courts] in church policies, practices and beliefs.”

That’s the wrong issue.

The core issue is abuse of power to unmask the until-then anonymous author of the blog FBC Jax Watchdog, and subsequent events and statements. The suit by blogger Tom Rich appears to make no allegations with regard to protected “church policies, practices and beliefs.”

Under the circumstances, the “excessive entanglement” argument seems to imply that freedom of religion is somehow attended by a right to immunity by churches from the legal consequences of their actions.

Bad argument/bad idea.

The most important general public issue is the failure of law enforcement officials to meet or attempt to meet readily available ethical and legal standards for unmasking an anonymous blogger.

Anonymity “is sometimes required if one is to both make responsible contributions to public discourse, and also put bread on the family table.” As a result, protecting blogger anonymity is a part of “protecting the discourse itself,” which is at the core of our democracy. Protection of that overarching public interest in anonymity of expression has required a great many legal battles to prevent unmaskings whose palpable goal was to suppress free expression. Not all bloggers survive unscathed.

The general public interest in the protection of anonymous expression should have been addressed in court with regard to FBC Jax Watchdog, not circumvented by way of a criminal investigation which was officially closed without charges or meaningful official report. There is we feel a general public interest in seeing the debate joined in open court not, not dismissed on the basis of the FBC Jacksonville freedom of religion pretext.

Mis-outed anonyblogger

Had the New York Times been able to call in the Jacksonville, Fla., sheriff’s department to do the job, it would most assuredly not have mis-outed the anonymous author (or authors) of the NYTPicker blog.

They then compounded the error by deleting the offending blog entry, even though copies of the text had already traveled the online world an could not be recovered [Copy here].

Who cares? We do, although we mostly agree with Zachary M. Seward at Nieman Journalism Lab:

To be honest, I don’t really care who the NYTPicker is. The site’s Twitter feed has denied the Times’ aborted report, and they’ll no doubt have something to say about the ethics of pulling a post. I just think this is a lesson that removing content from the web is a futile task, particularly for big news sites. And if a story needs to be retracted, if that’s the case here (update: it is), then we need better ways to do it than just pulling content off the web.

There remains a lingering question:

Why did write the story at all?

The author does perform a service, although having your glaring errors regularly reported to the world may not feel like a services to those who err. Thus attempting to report the author’s identity has the scent of revenge about it. And basing the failed revelation on an anonymous source, without securing appropriate confirmation before reporting, is both overeager and bad reporting.

Bad as all that is for The Times’ reputation, it isn’t manipulation of a law enforcement agency and trampling of available legal standards to unmask a critic.

DC Court of Appeals sets standards protecting anonymous online speech

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:

1. Ensure that the plaintiff has adequately pleaded the elements of a defamation claim.
2. Require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served.
3. Delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash.
4. Require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control.
5. 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.

Sam Bayard of the Citizen Media Law Project wrote:

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.

Standards unmet in Fla. anonymous blogger case

There are available if evolving ethical and legal standards to help law enforcement officials decide whether to identify anonymous bloggers. Yet accounts suggest that none were applied when Jacksonville, Fla., Sheriff’s Detective Robert Hinson unmasked FBC Jax Watchdog to First Baptist Church of Jacksonville (FBC Jax) leadership.

Jacksonville Times-Union reporter Jeff Brumley wrote:

It was also proper for [Detective Robert] Hinson to provide First Baptist’s leadership with [Thomas A.] Rich’s identity despite finding no criminal evidence, [Undersheriff Frank] Mackesy said, so it could take whatever internal action it felt necessary for its own safety.

Mackesy’s allusion to “safety” may be read as an attempt to excuse his department for an error, since nothing Detective Hinson reports finding provides reason to believe the safety of either the church or any of its members was at risk from Rich. A close reading of the FBC Jax Watchdog blog reveals no threats of violence. Nor is there anything other than restrained self-expression in the Watchdog’s words we have seen quoted elsewhere.

Hinson could not have escaped knowing, however, that his minister yearned to identify the author of the anonymously penned FBC Jax Watchdog blog which regularly called him to task. Hinson, who is a member of FBC Jax Pastor Mac Brunson’s security detail, surely knew Brunson would be grateful for that information.

The ties between charismatic pastor and protective parishioner, and the attendant natural desire to please the pastor, created an appearance of conflict of interest which overshadows this matter.

Concerns about that apparent conflict should in our view have led Hinson to recuse himself from any investigation involving his church and pastor.

Legal ethics, most evident in judicial standards, generally require such recusal. For even if an officer behaves with unwavering professional objectivity, the appearance of conflict still tends to undermine public confidence in the department and thus in the law.

Even so, had Detective Hinson not given up Thomas A. Rich as the anonymous author of the FBC Jax Watchdog blog, that appearance of an ethical conflict of interest would not have congealed into an argument for its reality. That appearance is unreduced by the sheriff’s failure address his subordinate’s role, even if unintentional, in the pillorying of Rich by FBC Jax which followed Hinson’s disclosure.

In addition, emerging legal standards regarding blogger anonymity suggest that Rich should have been given notice of Hinson’s intended erasure of his anonymity — notice attended by ample time to respond. Rich’s legal counsel could then have argued in court for the protection of his privacy and First Amendment rights.

Recent cases also suggest that those seeking an anonymous blogger’s identity must demonstrate to a court that their claim will withstand both a motion to dismiss and a motion of summary judgment. That is, they must plead facts necessary to succeed in their claim, and show the sufficiency of those facts.

Thus far there appear to have been no facts sufficient to have persuaded a court of competent jurisdiction to strip Rich of his anonymity. Nor to have seriously considered doing so. There are instead contradictory accounts of the causes for the investigation — with the Rev. John Blount, who filed the complaint, differing from Hinson — and an apparent dearth of facts.

We are left with abiding concern about Hinson’s possible conflict of interest, the lack of appropriate legal regard for Rich’s rights and the chilling effect on free expression which can result from such a public trampling of an individual’s rights.