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 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]
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.
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.
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.
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.
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.
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.
Watch the WCNC investigative video to decide whether you agree with Watchdog that affiliation with this group is lamentable. Chances are good that you will be troubled by at least part of what you learn.
Watchdog notes that FBC pastor Mac Brunson asked for a special offering last Easter to raise $180,000 to purchase Inspiration Network air time.
Then, illustrating why his blog has received such a Byzantine reaction from the leadership of FBC Jax, says:
I, for one, could not donate money to any organization that gives money or is associated with these “Televangelist Gunslingers”, as this report calls them. I can’t believe any bible-believing church would need to affiliate with the likes of these folks to spread the gospel.
Why, indeed? Not the kind of question the powerful always field well.
The blogger seems to have made some people who have more money than brains very nervous, because church leadership has not handled his questioning well at all from what we see in the public responses.
What has the church leadership wrought?
Some of the documents are online now; the church leadership claimed he was involved in criminal activity. Why? The overkill is stunning. Truth, humility, servant-hood took second place to power, as the mega celebrity bubble around the lead pastor tightened its grip on the minds and hearts of leadership. Most of us can’t comprehend the isolation mega-church celebrity ministers live in, nor can we comprehend the need of some to be so protective of perceived power they’ll harm in God’s name.
Avoidable harm. The entire piece is here.