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The other side of the RFK Jr. vs. DAILY KOS Feud

GELFAND’S WORLD-In my previous column, I discussed the legal wrangling going on between Robert F. Kennedy Jr. and the Daily Kos website.

Kennedy claims that he has been libeled by an anonymous author who published on Daily Kos as DowneastDem. Kennedy therefore wishes to force Daily Kos to reveal the true identity of DowneastDem. Markos Moulitsas, the publisher of Daily Kos, is putting up a legal defense against the legal filings. 

My view as expressed on Monday was that libel should not be protected simply because an author chooses to take advantage of anonymity, and that the appropriate place to determine whether a libel has occurred is to play the conflict out in a court of law. I haven't changed that opinion -- real libel is, after all, a way of bullying that should not be protected even under the First Amendment -- but there is a subtlety to this story that was brought to my attention after Monday's publication. 

There is another player in this drama, the author him/her-self. DowneastDem would be the ultimate target of RFK Jr.'s lawsuit and has equal standing with Kos and Kennedy in the discussion. On Tuesday, I received an email from an attorney by the name of Paul Alan Levy who identified himself as representing DowneastDem. Levy works at Public Citizen, the organization that some of us will remember as Ralph Nader's best creation. With Levy's permission, we will include his letter (see below). Levy and I had an extensive telephone conversation on Wednesday. 

I will attempt to summarize and paraphrase his argument. If I have misconstrued any of it, he can correct us in the comments section below. 

What we agree on: There is no First Amendment right to libel, and the right to online anonymity is not absolute. There can be circumstances in which an aggrieved party should have the right to force an internet site to divulge the identity of one of its writers. 

But here is where it gets interesting. According to Levy, who cites an impressive list of court decisions, there is a First Amendment right to anonymous speech. I must confess that I had not previously considered anonymity as a basic Constitutional right, but you can read citations and arguments on the Public Citizen website. In short, you have the right to engage in anonymous authorship pretty much in the same way you have the right to engage in open authorship. That means that you don't have the right to slander or libel or to make credible death threats, or to incite to riot -- all the usual exceptions to freedom of speech and the press apply to the anonymous and the open alike. 

And now the crux of the matter, which came up a bit in Monday's column but needs to be tweaked here. Since there is a First Amendment right to anonymous speech that can only be contradicted by showing one of those exceptions, it changes the balance somewhat. If I can try to verbalize the idea, there is no absolute right for a complaining party (such as RFK Jr.) to force a website such as Daily Kos to divulge anything about anybody, at least not in California. 

In California and New Jersey, there is a required balancing act (or legal test, if you want to call it that). The plaintiff (RFK Jr.) has to show in advance that there is some substantial reason for the court to believe that he actually has a case. Just being mad at somebody for insulting you in public isn't enough to force that person to undergo the stress and expense of a trial. And that's true particularly when it's about a public figure who uses his own fame and notoriety to advance the anti-vaccination cause. Critics have a right to be critical. 

So, if Kennedy attended a rally in Berlin that was populated by a lot of hard-right scum, and if Kennedy was taking advantage of that situation to push his message, authors (signed or anonymous) have a right to recite the facts and to express their concerns. It does not follow that anybody has the right to libel Kennedy by printing something grossly untrue and damaging. 

But it turns out that in different states, whether Kennedy could force Kos to reveal the name of the author in advance (before actually filing a lawsuit) differs. New York allows for such attempts, whereas a state like New Jersey has a different set of rules. 

There is one other point that I tried to make previously, but bears repeating. The law should not be used just to bully somebody who has expressed a Constitutionally protected opinion or judgment. That means that filing a lawsuit just to make somebody miserable is not supposed to be part of our system. In hearing ordinary libel cases, courts look for malicious attempts to harm and, in addition, will determine if any harm has actually occurred. 

And of course there is one other legal question to be answered. If you publish the truth about somebody, it doesn't matter what your motives are, and it also doesn't matter if you have harmed the other person. Here's an example: If some enterprising reporter discovered that somebody living here in the U.S. was previously a German concentration camp guard who engaged in atrocities, that reporter's defense against a libel suit is the truth of the charges. 

What moves the needle in the Kennedy vs. DowneastDem case is the Constitutional right to anonymity. The right is not absolute, but it forces the courts to consider whether that right -- guaranteed under the First Amendment -- would be undermined by allowing a frivolous lawsuit to proceed. 

The Dendrite case 

To me, the word Dendrite represents a bump on a nerve cell, but it apparently was the name of a company that figures in this area of law. Dendrite tried to get the name of an anonymous critic by filing a lawsuit. Our own Paul Alan Levy represented the anonymous defendant and won the ruling in what is referred to as Dendrite among legal scholars. In brief, it puts the burden on the complaining party (such as Kennedy if the case were to be filed in New Jersey) to show in advance that he would have a chance at winning the lawsuit. If his case is minimal or non-existent, the court will tell Kennedy that he cannot have the name of the anonymous defendant. 

So, in states which follow the Dendrite standard, there is the equivalent of a hearing or mini-trial or just the filing of papers in which the defendant can plead through his attorney that his right to anonymity should be upheld. It seems like a not-unreasonable way to balance the rights of defendants vs. the rights of plaintiffs to have their day in court. 

We reach the part where Europeans have difficulty understanding our American legal system. You see, Dendrite was decided in New Jersey and, at least according to Markos Moulitsas and Paul Levy, California also uses a similar standard. But the state of New York has not as yet produced a precedent setting case. New York currently allows for motions such as Kennedy's to be filed before an actual lawsuit against DowneastDem. Under current New York practice, Kennedy is not obligated to make his case in advance -- the granting of his subpoena by the court seems to have been uncontroversial and frankly obvious. 

Then Kennedy tried to force the issue by serving Moulitsas a subpoena in California. This doesn't make a lot of sense to me, but you can understand the above remark about why Europeans find our system confusing. New York and California are both part of the USA, but in terms of serving legal papers on each other’s residents, they are somewhat independent and sovereign. 

The bottom line goes like this: DowneastDem wants to argue in advance that Kennedy does not have a case against him, and in so arguing, will ask the court to kill off Kennedy's demand for his name. Kennedy's side seems to be saying that in New York, he doesn't have to get past the Dendrite rule because New York has not yet created such a rule in its own jurisdiction. DowneastDem (wherever he lives) is caught between dueling powers in two different states, neither of which is probably his/her home. 

I think Paul Levy explains the issue of opposing procedures very well in his numerous writings on the Dendrite decision. There is a reasonable argument that DowneastDem should have the right to make a Dendrite argument (using an attorney so as to preserve his/her anonymity) in the New York courts.  Under that standard, Kennedy would have to demonstrate his likelihood of winning in order to get the court to force Kos to give up DowneastDem's name. 

I have tried to explain these legal subtleties as best I can, but I have a few brief additional comments. The first is that Markos Moulitsas has not explained the argument very well. That's because the reader runs across a headline saying, "Robert Kennedy Jr. Cavorts with Nazis . . ." or "Anti-vaxxer RFK Jr.  joins neo-Nazis . . ." and then has to read shrill diatribes that insult Kennedy pretty strongly. I think there are ways to go after Kennedy such as you will find in Respectful Insolence where the utter nonsense peddled by Kennedy is pulled apart factually and logically. 

I should also mention (or disclose) my own general distaste for anonymous online bullying, even when it does not rise to true libel. I first wrote on such concerns back in 2005 when a local anonymous blog attacked a local politician in a scurrilous manner. A day or so after my piece came out, that site referred to my article and followed with what I took to be a tangible threat to myself and my family. It is a lot easier to be a cowardly bully when you get to hide your true name. 

So I am a bit more skeptical of why anonymity should be the Constitutional rule, but that is what the rule is. I should point out that in our conversation, Levy educated me on the history --  that the legal protection for anonymity begins with NAACP vs. Alabama, a case that came up in 1958. In other words, anonymity as a protected right is not something that was litigated in 1792 or even in 1890. It's a fairly new area of law in the sense that it arose at a time when many of us were already around. 

Addendum: Some links to the Public Citizen arguments and Paul Levy's letter 

We received an email from Paul Levy, the attorney who represents DowneastDem. He also has provided some biographical material which you can find here and here

Here is the letter: 

"FWIW, I am the public interest lawyer who represents the anonymous blogger DowneastDem whom Robert Kennedy is trying to identify. by using court process.  I don’t plan to make any broad public statements about this case before we file our motion to quash but given who you are I want to correct some misimpressions that are apparent to me from your column.  I am not sure you would get this from the vituperation that Kennedy and Kos are slinging at each other. 

"I agree with you that there is no right to defame anonymously; and a would-be plaintiff that has a sound claim for defamation ought to be able to represent it to the courts and, if he survives summary judgment, to a jury.  But the problem that cases like this one present is that not everyone who asserts that he has a claim for defamation has a legally tenable claim that has any realistic chance of success.  So how should courts decide whether there is enough of a claim that it ought to strip the anonymous speaker of the First Amendment right to speak anonymously?  Note of course that a subpoena is compulsory only because the power of a court is behind it, so the exercise of that power has to be consistent with the First Amendment. 

"The solution that we proposed 21 years ago to the courts in New Jersey in a case called Dendrite International v Doe (and which that court adopted, setting the stage for many other courts around the country that have followed  in New Jersey’s steps) was to impose on the plaintiff seeking court-ordered  identification the obligation to (1) make sure that the anonymous speaker gets notice of the effort, and an opportunity to defend her right to speak anonymously, (2) make a minimal legal and evidentiary showing that the claimed case has merit.  Once these materials are before it, (3) the court can balance the right to anonymous speech against the right to proceed with a valid claim. 

"I can send you a bunch of things I have written on this subject over the past two decades.    (There is a great book coming out next year on the subject – I have read the draft).  Most responsible hosts for online content insist that plaintiffs make this sort of showing in court before they respond to subpoenas to identify anonymous users.  Twitter, Facebook, Yelp, Glassdoor and to some extent Google are among the California companies that take this stance.  What Daily Kos is doing so far in this case is in line with industry standards. 

"California adopted its own version of this approach in 2005, in a case called Krinsky v. Doe 6.  When we file our brief, we will be asking the California judge to conclude that Kennedy has not made that showing (New York does not require such showing, and Kennedy certainly did not make it).  On the specifics of this case, I suggest that you withhold judgment until you see what we have to say.  Our brief is ready to go, subject to the issue of page limits   There is a very brief summary in our initial filing in the case

"But if you decide to write in the meantime, I would suggest that you give some renewed consideration to the position that you have taken on the broader issue." 

 

Paul Alan Levy

Public Citizen Litigation Group

 

(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at [email protected])