Is it Freedom of the Press or Anonymous Libel?

As in many other cases, this one little skirmish signifies a fight over a much larger question. In the broad sense it is Daily Kos taking the wrong side on a fight regarding Freedom of the Press. In particular, it is whether there is some right to get away with libel through anonymity. 

The specifics involve some critical remarks about Robert F. Kennedy Jr. written by an author who goes by the pseudonym "DowneastDem" and which was published in Daily Kos. 

For those of you who are not familiar with Daily Kos, it is a website which fights against the right wing and attempts to rally Democratic Party voters. Its longstanding tradition is to offer space to amateur authors, many of whom prefer to submit their articles under pseudonyms. In the parlance of the Daily Kos website, such articles are called "diaries." 

So the pseudonymous author DowneastDem submitted the article in question and Daily Kos published it. Under federal law, Daily Kos as the website cannot be sued over a piece that it had no part in writing or editing; only its actual author can be sued. 

RFK Jr. filed a libel action. In order to carry out the most basic requirements of suing someone, which would involve serving the lawsuit papers on the actual defendant, RFK Jr. filed a legal motion demanding that Daily Kos reveal the actual identity of DowneastDem. This seems pretty straightforward to me, but the head of the Daily Kos website is resisting mightily. 

The founder and leader of Daily Kos is Markos Moulitsas, who goes by the nickname Kos. In disagreeing with him for what may be one of my few times, I will disclose that I have admired his work for many years. I met him after a speech he gave and I asked him to autograph my copy of his book Crashing the Gate. He did sign it and it is on my bookshelf. 

But in this case, I have concerns. 

So what is this all about? 

Last fall, in publishing the article described above, Daily Kos also included the headline (the exact wording is reproduced from the court document): “Anti-Vaxxer RFK JR. joins neo-Nazis in massive Berlin ‘Anti-Corona’ Protest.” This, I suspect, is the crux of the matter, as the headline could imply either that RFK Jr. became a neo-Nazi (an unlikely conclusion) or that he worked in concert with them (an argument that RFK Jr. would probably make at trial) or that RFK Jr. just happened to be in the same rather large city at the same large gathering and that neo-Nazis were in the audience (no longer much of a libel). 

The rest of the article is fairly plain-spoken. It refers to German political parties and organizations, pointing out that some are right wing and that at least one involves neo-Nazis. Apparently the author was translating directly from the online edition of a German newspaper. 

The fundamental question can be stated easily enough: Does freedom of the press include the right to libel a public figure anonymously, in the sense that the author's anonymity can be preserved by Daily Kos whether or not DowneastDem said something libelous? If that is the case, then there is no recourse for libelous statements made against public figures. The publisher need merely insist that authors submit under pseudonyms. 

It's really pretty simple. 

We can start with the obvious response to the above question: The First Amendment protects freedom of the press, but it does not protect against a malicious lie which hurts someone's reputation or business or mental health. Thus we have Dominion filing its lawsuit against Fox News and others. That libel lawsuit is the flip side of the right to freedom of the press. 

Otherwise, how would it be acceptable to have unbridled freedom of the press if it protects libel? The answer is that it wouldn't. But the next question has an equally simple answer: Who is to decide whether a published article constitutes libel or not? The answer is equally simple. It's the courts. 

And for such a decision to be made, there has to be a lawsuit which is directly before the court and in which each side gets to present its side of the story. 

There is one additional layer of complexity in the free press vs. libel calculus. We all understand that defending yourself against a lawsuit is potentially very expensive and stressful. In order to protect normal people from wealthy corporations (or individuals) who can afford to file frivolous lawsuits just to harass and punish their critics, many states have enacted laws to give the victims protection against what are generally referred to as SLAPP (Strategic Lawsuit against Public Participation) lawsuits. In essence, this allows the person being sued to go into court immediately and ask that the lawsuit be thrown out because it is frivolous and would ultimately lose on First Amendment grounds. It's a shortcut that protects against the pain and expense from years of litigation. 

Curiously, Kos argues in a series of separate articles (under his own name) that if Kennedy's lawsuit were to be tried against Downeast Dem, it would be successfully defended as a SLAPP lawsuit and would be thrown out. It seems painfully obvious that this argument weakens Kos's case,  because it implies that the damage to his columnist would ultimately be minimal. It does not weaken it entirely, because there is no promise that a judge would uphold the SLAPP action against Kennedy, and even defending a SLAPP action every time you publish an article critical of some famous person is going to become fatally expensive after a while. But still, Kos is admitting that there is a specific legal defense against a frivolous lawsuit. The judge merely pointed out that this, among other defenses, might come up in actual litigation, but those are questions of fact that are to be determined after a case is filed and served on the defendant. 

Kos takes it to another level 

This discussion wouldn't be complete without reference to a series of more recent comments from Kos himself. Here is one of them. Kos directs a withering selection of insults at RFK Jr, calling him a coward, among others. Kos then invites Kennedy to sue him directly in a California court. This may be some attempt at a deep strategy, but its usefulness is not clear to me. 

But what is most bothersome is what Kos says about anonymity. He argues that the anonymity of political writing needs to be protected. I don't find his argument persuasive, but you can read his series of comments yourselves. There seems to be some difference among states (including New York and California) and California seems to be more on the side of anonymity at the moment. 

But there is one point that becomes obvious only after you consider the RFK Jr. case and everything that Kos says about it. Kos is defending his whole system of running anonymous authors on a website -- his whole way of life you might say. There are lots of anonymous writers who populate the pages of Daily Kos. If even one identity is made public through a lawsuit, others would undoubtedly feel threatened. As Kos himself admits, some of his writers would hesitate to publish if it were possible that their identities would be made public, because it could cost them their jobs or personal relationships. 

I don't find that argument at all convincing in defending the practice of libel. In the current RFK Jr. case, there is a pretty good counterargument that no real libel has occurred, but shall our system deny him the right to have his day in court? 

There is one final point that neither Kos nor RFK Jr. seem to have brought up (I could be wrong here, because there are many Kos columns and lots of legal documents.) Headlines are typically written by editors. The most potentially libelous part, about RFK Jr. "joining" neo-Nazis, may very well have been written by a Daily Kos editor. Who's to know unless or until the question comes before a judge? 

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