I thought this was interesting and somewhat pertinent. Best to be informed and then do what you need to do.
http://www.wired.com/news/business/0,1367,50548,00.html
Tony
(trying to make this link work.)
Clips](http://nwparalegal.com/clipssnip/newspage.htm%22%3EClips) and Snips Tunes
“When you make it to the top of the mountain, keep on climbing.” -Zen saying
[ This Message was edited by: TonyHiggins on 2002-04-04 14:01 ]
[ This Message was edited by: TonyHiggins on 2002-04-04 14:46 ]
I can’t get the link to work. I think if you copy and paste it, it will.
http://www.wired.com/news/business/0,1367,50548,00.html
Otherwise, go to wired.com, click on Falwell Parody article, go to page 2, bottom of page is link to flame article.
This sort of thing has actually been going on for decades in a slightly different form. It’s a way that large corporations have discovered to silence public-spirited citizens who oppose some project or another which the corporation has planned for their community. Speak out effectively and cogently against the proposed development ( in other words become a threat ) whether on environmental, social, or aesthetic grounds, and wake up in the morning slapped with a multi-million-dollar lawsuit. It shuts people up wonderfully well.
Later, when the corporation has what it wants, the lawsuit gets dropped.
So much for the First Amendment. Geez, this is frightening.
On 2002-04-04 17:05, cj wrote:
So much for the First Amendment. Geez, this is frightening.
Well… Actually, what I find frightening about the First Amendment is that people believe public insults should be covered by it. You call someone “crooked” because you don’t approve of their business model and they are supposed to take it in the name of your precious liberty? I don’t know… Such insults are unnessecary to make the point. I don’t think that freedom to express your ideas requires license to abuse. Nor has the First Amendment ever covered slander or libel. (The only important wrinkle here is the public criticism of public figures, like politicians and officials. I recommend “Make No Law” by Anthony Lewis, which describes the famous case of Times v. Sullivan. Very readable.)
Another frightening thing is practically all First Amendment law these days concerns (internet) pornography. Not that I mind pornography, but I think it is something very different from political liberty.
I don’t condone libel or slander or abuse and don’t look at porno on the Internet, but sometimes people might post opinions (like the guy said the company management was incompetent or they got poor customer service). That to me wouldn’t necessarily be slander/libel. If we got punished for saying someone was incompetent, most of the folks I know would be in jail. Who hasn’t mouthed off about others before? To me the difference would be opinion vs. fact. If I said that the company CEO worshipped Satan and sacrificed children when there was no evidence of this having occurred, this would be a blatant lie and abuse.
All that being said, I’m not a lawyer and don’t know all the facts in each case. It just seems a bit overboard in some of the cases.
Will whistlemakers start suing us for venting about quality control issues or because we didn’t like a certain whistle? Just wondering where the line is . . .
[ This Message was edited by: cj on 2002-04-05 10:35 ]
cj, when you put it that way, I think we are in complete agreement. 
I got to one of the links, so maybe
I’m not fully informed. However it
did say that states are passing laws
prohibiting law suits intended to
stifle free speech and criticism.
Also there are well funded
civil liberty groups
that are bound to see this as a
threat to the first amendment and
would make it their business to
provide free legal counsel to
defendants, and who would see the
thing through the appeals process
if they thought the case was
sound. Indeed, there are more than
a few attorneys who would take
such a case for free.
Also it’s hard to believe
that judges won’t see pretty quickly
what’s going on–they’re people too
and they tend to care about constituional
rights. Indeed they can have the plaintiff
pay court costs and certainly the
defendant might request it.
In addition, negative publicity
might soon result from such a law
suit, especially if it’s silly and
the papers covered it–which wouldn’t
be hard to arrange. I have no
doubt that frivolous suits get
filed and people intimidated
–but for me the stories
don’t add up. The guy who
lost because he says he never got
the registered letter? Did the lady
who wrote the apology, believing
that the case against her
hadn’t a chance in court, call the
ACLU?
It may be that people did not explore many alternatives in their own defense. My point for bringing this up in the first place is that people do get sued whether for good reason or not. People do cave in for strictly financial reasons. I’ve read for years about people being intimidated into silence by threat of lawsuit. One case that sticks in my mind is a group of neighborhood activists who tried to stop a developer from building in their area. They were effectively and quickly shut up by the developer initiating a suit. Frankly, some of us don’t have the time,energy, or inclination to be crusaders for justice. The system is flawed and this is obviously a very gray area. I started this topic in light of some flagrant flames that went on recently. I wondered to myself where it could lead.
Slightly aside, out of curiosity, is there a way for a message board to be completely anonymous?
Tony
Jim, you’re right. Some states are dealing with frivolous slander/libel suits. Now if they’d all deal with all frivolous lawsuits!
Thanks, Bloomfield, I’ll have to read that Anthony Lewis book you recommended, sounds fascinating.
In the meantime, I guess we should all watch what we say since this is communication which can be viewed, reviewed, subpoenaed etc. And sometimes we do get into spirited discussions where a person might post something that (s)he later regrets. Thanks to those who posted the article links and alerted us to these possible legal ramifications.
Slightly aside, out of curiosity, is there a way for a message board to be completely anonymous?
Tony
my opinion - check with Rich
Most likely not. The message board probably records our IP numbers, which I believe system admins are required to hand over if law enforcement has reason to need it. But on most dial up services, the IP is different every time you log on. Networked places like university campuses (and cable modems, I think) keep the IP address constant for a particular computer. Presumably the IP can be traced back to your provider and from there to your registration information.
Sure, a lot of these cases wouldn’t stand up on court, but you still have to have a lawyer to defend yourself.
And I’m afraid that unless the case gets a LOT of press and interest, you would have a very difficult time getting free representation.
How many cases like this are there? Do they all get onto the radar of the media and general public? No.
Read the link I posted about the aquatic plants discussion list, that one is absolutely absurd. In that case, all the listers do is advise other list members not to purchase from a particular company, and the business owner sues them.
I am a member of the ACLU. I don’t read all the mail they send me. I don’t agree with everything they do, either, but I think we have to have them. I can tell you that as big and well-supported as they are, they can’t take on every case. There are just too many. They have to be selective, they have to decide. Do they help out this person being sued for criticizing a corporation, or do they help out this other person over here who just lost his job because he’s a follower of Islam? The ACLU’s resources ARE limited. I don’t envy them the decisions they have to make every day.
If you get caught up in a case like this, by all means, call them. Call lawyers to see if they will take the case for free or for what little you can afford. But the fact is, the system in this country is still set up to the advantage of the rich, and a lot of people have kids and a lot of bills, and they exhaust their options, and they cannot risk going bankrupt in court before the judge hands them their award.
Sarah
Sarah, what is the ACLU?
American Civil Liberties Union
On 2002-04-05 11:12, jim stone wrote:
… The guy who
lost because he says he never got
the registered letter? Did the lady
who wrote the apology, believing
that the case against her
hadn’t a chance in court, call the
ACLU?
The guy who didn’t get the letter hasn’t lost. He just had a default judgment entered against him, which the court will set aside on his motion. The lady who had to retract said it was “the most humiliating thing she ever had to do in her life,” or something. Well, I envy that kind of a sheltered existence.
As for the thread of law suits: It is a fact that law suits in the USA are insanely expensive. The reasons are historical: The strong lobby of the bar (the lawyers), who won’t have their fees capped or put up with loser-pays, and the traditional belief in the jury. It gets expensive if you hire a team of professionals to explain some complicated series of events over and over to a bunch of idiots (the jurors probably aren’t idiots, but they might be, so they are treated like idiots).
Also, Jim, the judge may be on to the fact that the law suit is frivolous, but there is little he can do of his own initiative, except in the rare blatant cases. Assigning the costs is closing the stable door after the horse has escaped.
The cost of litigation here in the USA is so significant, that each (frivolous or bona fide) law suit has a high “strike value”: The amount of money the defendant is willing to pay, even though he/she is in the right, just to be spared the bother. In the article/this thread it sounded like Big Bad Corporations are out to use the strike value against Poor Private People who just want to speak their minds. But everyone who has tried to run a business knows that as often as not it is corporations/business who get hit with frivolous product-liability or wrongful-termination/employment-discrimination suits because someone wants to reach into the supposedly deep pockets. That is just to say that the problem exists on both sides.
As a society, I think we’d be in a better position to keep the big guys from throwing their weight around if we used the Frist Amendment less rather than more: Every guy who claims the First Amendment for the ad on his bakery truck or who wants to put pictures of his naked 14-year-old cousin on the 'web is distracting us from the real reason why Free Speech is important in a democracy and ought to be protected.
Just my two cents.
The 1st Amendment concerns expressed in this thread covers the issue of what speech is unprotected by the U. S. Constitution. “N.Y.Times vs. Sullivan” is a 1964 decision by “The Supremes” that pretty much set the benchmark on the issue and was further defined in “Gertz vs. Welch” in 1974.
Needless to say, there have been many other decisions on free speech issues that go to other subissues and/or “niches” regarding free speech.
Don’t think for one moment that the big legal play of a corporation “coming down on you for right or wrong” is not also done by government agencies on civil and/or criminal matters as well. I’m not saying that it is right, but many big private and public entities use their size and spending power to “encourage” an adversary to settle. (It offends me too.)
Glad to hear that you’re concerned about individual liberties. I hope you feel that way about all of our Constitutional rights as once start to kiss some of them off, (in the absence of a Constitutional Convention) what’s to preclude others to follow.
Public and private entities have their good and bad points. As a society we always struggle for the best balance.
Interesting thread!
On 2002-04-05 11:41, avanutria wrote:
Slightly aside, out of curiosity, is there a way for a message board to be completely anonymous? Tony
[ … ]
Most likely not. The message board probably records our IP numbers, which I believe system admins are required to hand over if law enforcement has reason to need it. But on most dial up services, the IP is different every time you log on. Networked places like university campuses (and cable modems, I think) keep the IP address constant for a particular computer. Presumably the IP can be traced back to your provider and from there to your registration information.
Just about every web server I know of keeps an access log. These logs generally accumulate at least the IP address of the client machine ( That’s you. ), the date and time of the request, the actual request made, sometimes the page you were coming from, and sometimes the operating system and browser you are using. If the web daemon is configured to do it, the IP address ( e.g. 123.45.678.90 ) can be reverse-resolved into the associated regular address ( e.g. dialup.foo.bar.com ). These records get huge fast, and most sites do not keep them forever. The actual turnover rate will depend upon the size of the site and the traffic load. Sysops tend to treat this information as confidential, but can be forced to open their records if required by search warrant or subpoena – as avanutria pointed out. Obviously, records can’t be surrendered that have been removed from the system according to normal administrative practice.
In order to identify who had posted a particular piece to a mailing list or message board, investigators would have to identify the source IP of the message, and then take that to the service provider who owns the IP to see if their records preserve who was using it at the time. They’ll hit a dead-end if the message was posted from a machine offered to the public in a library or cyber-cafe, for instance, and it’s also possible that the account was purchased from the service provider with a false name and address. This is how many of the “3-months free access” offers sent out by some of the major service providers get used. These are throw-away accounts which are abused like crazy and then abandoned. It is still possible, if the user hasn’t disabled caller-ID, that the service provider may log the telephone number used to make a dial-up connection and the user may be traced by this means – unless, of course, they’ve lied to the phone company too.
There are new “dynamic” name-services being used nowadays, in which a computer is assigned an IP each time it is turned on while connected to the network. The idea here is that IP addresses are becoming scarce in some heavily-used domains, and this is a way of conserving them. Computers which are turned off therefore don’t hog an IP someone else could be using. At least some universities appear to be moving to this approach, and it adds a layer of complexity to figuring out whodoneit.
Add to this the possibility that source IPs might be spoofed, e-mail headers forged, and the like, and it can be precious difficult to trace something back to the source, if the source doesn’t want to be found and knows how to hide. That said, most of us don’t know how to do these things, and it’s better to depend on being held accountable for one’s actions – even Kevin Mitnick was eventually required to do that. I tell my people that when they sit down at a networked computer it’s not like being at home in the bathroom with the door locked. It’s rather more like standing on a streetcorner and shouting. You’re in a public place, where anyone can see what you’re doing, and one should behave accordingly.
Our network people here at NIU told me that a student made a comment on a message board which convinced at least one participant that she was about to commit suicide. This individual called our university police ( long-distance ) in the small hours of the morning, who got in touch with the ITS people, then at home in bed. There were no legal problems because the logs belong to the university, and there was an officer knocking on her dorm door within fifteen minutes of the time she posted the message. It turned out that she was depressed, but not actually suicidal.
The speed at which they were able to move is quite breathtaking.
On 2002-04-05 12:42, Glengary wrote:
…
Glad to hear that you’re concerned about individual liberties. I hope you feel that way about all of our Constitutional rights as once start to kiss some of them off, (in the absence of a Constitutional Convention) what’s to preclude others to follow.
…
Interesting thread!
Interesting thread indeed!
I am not quite convinced by your slippery-slope argument, though. I don’t think we have to cling, nail and teeth, to what we perceive to be the shape of constitution in 1787 or 1791 (bill of rights) or 1864, 1868, 1870, or whatever. The nation survived when the 21st Amendment repealed the 18th (prohibition). I personally could very well do without the 2nd amendment (which I think you were refering to). But really, I’d like some more civil liberties written into the constitution, for instance a right to equal education. The First Amendment is made to pull an awful lot of weight, and could be supplemented with right to commercial enterprise. Also, I want an amendment banning capital punishment (I’m a dreamer, I know). And I want the 11th amendment stricken. Not to mention the right of the people to keep and bear whistles, of course.
/bloomfield
[ This Message was edited by: Bloomfield on 2002-04-05 14:13 ]