Debate forum 12/10

Debate forum 12/10

Debate Center: Company seeks new name for anonymous blogger: Defendant

 By Alex Culpepper

 

Illustration by:  Dayton artist Elliot Ward

The First Amendment to the U.S. Constitution is in place to protect people who speak or publish criticisms of government, other people, businesses and so on. It protects opinions that may make people feel awkward, angry or insulted, and it allows people to do so anonymously. What it does not protect is language meant to incite violence or illegal activity or language that is defamatory or libelous. The movement for freedom of speech has its roots in the days leading up to the American Revolution, when pamphleteers printed a variety of critical broadsides against the British government. Today, the legacy of those pamphleteers has filtered down to bloggers, and one in particular is testing the constitutional limits of free speech: His name is “Trooper,” and he has aroused the wrath of the Reynolds and Reynolds company. 

Reynolds and Reynolds is in a legal battle with Trooper over some critical blog comments he has made about the company, calling the CEO a thief and the products “crap,” among other negative press. (His blog is no longer active.) The company claims his comments are defamation, and it wants his identity revealed so he can be sued. Trooper is fighting this in the Texas Supreme Court. Initially, in 2010, the company sought through a Houston, Texas court to have Google, which was the online home for Trooper’s blog, release Trooper’s name. The company has had no luck. Reynolds and Reynolds’ case hinges on claims Trooper has identified himself as a former employee, and because of that, it claims his speech is not protected. Trooper’s lawyer has denied his employment at Reynolds and Reynolds. Add to the mix the fact Trooper is not a resident of Texas, which some experts say voids the Texas court’s jurisdiction over him, and the case has some added layers. So in all the legal wrangling during the last few years, Trooper remained anonymous, and Reynolds and Reynolds continues to pursue its case against him.

Trooper’s supporters first claim forcing Trooper’s identity is a violation of free speech rights because his role as blogger is akin to political pamphlet writing from bygone days. They further add, no case has been ruled in the U.S. Supreme Court setting precedent about exposing the identity of anonymous online writers. Supporters also claim the company has yet to show any defamation. Supporters finally add the Texas court has no jurisdiction over Trooper and thus has no power to legally require him to release his identity.

Opponents of Trooper’s actions say his knowledge of Reynolds and Reynolds is clear proof he was an employee of the company, and the U.S. Supreme Court has not ruled in favor of protections for employees who complain about a company they work for. Supporters also say the company has clear proof of defamation, voiding any First Amendment protection in this case.

No matter the ruling, the case will set precedent according to experts. Some legal experts, though, wonder whether Reynolds and Reynolds can win anything here because even if it gets Trooper’s identity, his statements are most likely protected under the National Labor Relations Act. Regardless, Trooper’s supporters will insist his free speech rights cannot be violated and Trooper’s opponents will demand defamation trumps a person’s right to free speech.

Reach DCP forum moderator Alex Culpepper at AlexCulpepper@DaytonCityPaper.com

Debate Forum Question of the Week:

Should a blogger be protected under the First Amendment for writing negative remarks about a company? 

 

 

Debate Left:Defecation lawsuit

By Ben Tomkins

Defamation is one of the most difficult things to prove in court because in order to be awarded a judgment, the plaintiff must demonstrate that the defendant’s statements were false, harmful and were stated without doing adequate research into the matter. Each of those becomes increasingly difficult to prove, and depending on the subject matter could be almost impossible, regardless of the veracity of the facts in question.Let’s take our good friend Trooper and the impending lawsuit with Reynolds and Reynolds. As there are a lot of ins and outs of this issue, I’m going to stick exclusively to the defamation portion of the discussion and forgo the wrangling about jurisdiction. That’s like my wife and I arguing about who let the dog out last as if it has something to do with why his breath smells like poo.

The three broad points mentioned in the Forum Center are Trooper called some of Reynolds and Reynolds’ software “crap,” called the CEO a “thief” and spread around a bunch of information that proves he was an employee because only an insider would know that stuff and he is therefore not protected by free speech laws.

I’m particularly enamored of the last one, because it’s rather like a dog running in circles trying to eat its own poo before it hits the grass. In essence, Reynolds and Reynolds is saying these things are defamation because they aren’t true, but if they were true it would only be because Trooper was in a position to know. I’m actually laughing right now, so if some typos end up in the final copy it’s because that concept is journalistic Parkinson’s.

Anyway … right off the bat, the “crap” thing isn’t going anywhere unless Trooper makes specific claims as to the nature of the crap. And they are false. And they hurt sales. And it’s provable those things are not critically sound conclusions from Trooper’s experience with a copy of the software that may or may not have been working properly … provided that’s not the reason he called the software “crap.” Calling something a pile of crap is probably the most subjective thing any human being can say unless they are very clear they are factually asserting something is composed of fecal matter.

Therefore, the question posed in the Forum Center – “Should a blogger be protected under the First Amendment for writing negative remarks?” – is irrelevant because of the word “negative.” Legally, the only relevant question is “should a person be protected…for writing those negative remarks about that company?”

This takes us rather smoothly to the complaint in which Trooper called the CEO of Reynolds and Reynolds a thief. That is a statement that could potentially meet all three criteria, but again we must negotiate a semantic swamp. Even something as seemingly straightforward as establishing the factualness of the claim could be difficult, because in order to do that we have to know what the context and purpose of calling him a “thief” really was.

For instance, I can call a senator a thief because I think taxes are legal robbery. There’s no factual assertion of thievery in the traditional black and white sense. What does that mean then? I’m sure you can already see the whirlpool developing here, but even if Trooper’s intention can be made clear, how does Reynolds and Reynolds go about proving his speech was harmful?

“Harmful,” from a legal standpoint, is going to be something beyond Trooper hurting the self-esteem of Reynolds and Reynolds. They are going to have to prove he has impacted sales in some way or another, because without this proof, there’s no way to put a value on it. I can’t really speak to it because I haven’t seen their books, but I can say after looking online for two seconds I have found about a billion other bloggers and commenters who have said exactly the same thing and I doubt it’s been particularly harmful. I don’t know about you, but if I read two restaurant reviews and one complains about a fingernail in the salad and the other accuses the owner of being a letch, I know which one is going to have greater impact on my life choices.

Really, the only way Trooper’s claim could hurt the CEO would be if Reynolds and Reynolds did something asinine like – oh, I don’t know – take a pointless comment lost in cyberspace and make it the basis of a nationally recognized defamation claim. It would seem that Reynolds and Reynolds may well do better to sue themselves for defamation by making a gigantic mountain out of a mole turd. Seriously, if I told you two months ago some dude named Trooper insulted Reynolds and Reynolds’ CEO, you’d probably sue me for defamation because it implied you actually cared.

Honestly, I don’t think any of this is going anywhere. It’s pretty transparent that Reynolds and Reynolds is pissed off because they think this guy used to work for them, and if they’ve got a beef with what I’ve just said, they can sue me. I’ll even admit I haven’t done adequate research into the matter, so they’re already a third of the way there. The Internet opinion forum is too vast, and unless they can delineate between Trooper any other critic, it’s going to be a lost cause.

Ben Tomkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tomkins at BenTomkins@DaytonCityPaper.com.

 Debate Right: Cowardly blogger not entitled to First Amendment protections

 By David H. Landon

 

Reynolds and Reynolds, an Ohio-based corporation, has filed a petition in the Texas courts against the Google Corporation, seeking the name, address and telephone number of the Internet blogger known as the “Trooper” who was using the Google platform to disseminate his blog over the Internet. The blog entitled “Reynolds News and Information” began in 2007 and was harshly critical of Robert Brockman, the new CEO of Reynolds and Reynolds, accusing him of theft and of causing the ruination of Reynolds and Reynolds. The anonymous blogger, who claimed in the blog to be an employee of Reynolds and Reynolds, defamed and disparaged the company under the leadership of the new CEO Brockman.  In the court action against Google, Reynolds and Reynolds is seeking the disclosure of the identity of Trooper in anticipation of filing a suit against the blogger for libel and business disparagement. The company is also investigating whether they could bring a claim for breach of fiduciary duty against Trooper if he is indeed an employee of Reynolds and Reynolds.

Through his attorney, the still anonymous Trooper argued his First Amendment rights to free speech would be infringed upon if Google is forced to reveal his true identity. Trooper argued Internet speech in blogs and chat rooms is the modern equivalent of political pamphleteering from the days of the American Revolution. Trooper quoted a 1995 U.S. Supreme Court ruling which said, “anonymity is a shield from the tyranny of the majority.”

I am usually a champion for free speech. There are many times I strongly disagree with some statement or communication, but will absolutely defend the right of the speaker to make that commentary, even though I find it offensive. It’s a critical part of our republic, this First Amendment right of expression, no matter how wrong the speaker might be or how malicious the communication. I have a deep and abiding faith in the American people to eventually sort out the truth.

In recent years, I have become very alarmed at the assault on free speech. The current assault targets anyone who doesn’t support the Obama worldview. There are dozens of instances of the Obama administration infringing on the basic rights of free speech. For example: The targeting by the IRS of conservative groups seeking non-profit status; the White House-proposed draft order requiring applicants for government contracts to disclose their political affiliations as part of the application process; and the HHS Secretary telling insurance companies they couldn’t tell their customers how Obamacare would impact them. There are many more examples.

What is truly disturbing about recent developments in this area, though, is the extent to which the value of freedom of expression seems to be tossed aside here in the United States. We are even attempting, through hate crime laws, to punish people for what they were thinking. I’ve argued in previous columns America is more than a geographic place. America is an idea. And that idea is the manifestation of freedom. Without the freedom of expression and speech, the idea of America as a place of freedom would shrivel and die. That’s not to say there aren’t some legitimate limits to free speech.

Today’s forum poses the question, “Do anonymous bloggers enjoy the protections of free speech found in the First Amendment rights?”  Generally speaking, I would argue anonymous bloggers do have First Amendment rights. While I find distasteful the practice of criticism through anonymous blogs, there was once a justification for such practice. In earlier days, if you signed your name to a political pamphlet, you could find yourself swinging at the end of a rope owned by King George. I believe today there is little justification for anonymous publications. Although I find it cowardly behavior to criticize public officials while hiding behind the anonymity of a blog, it’s a time-honored practice and is usually afforded First Amendment protection.

In the case at hand, however, anonymous Mr. Trooper has taken us into a grey area where his commentary has crossed from political speech into a kind of commercial commentary on the business practices of the newly merged Reynolds and Reynolds company and the honesty of its new CEO. By claiming in the blog to be an employee, Trooper further complicates his desire to remain anonymous. First, his comments about the new CEO being a thief could very well be slander per se. Accusing someone of committing a felony is considered slanderous and is not protected by the First Amendment. If Trooper accused Robert Brockman of committing theft, then Mr. Brockman may well be entitled to his day in court. His commentary about the sliding fortunes of Reynolds and Reynolds since the merger and takeover by Mr. Brockman also takes us into a grey area which might not be afforded First Amendment protection. If what he is claiming about Reynolds and Reynolds is untrue, he has then committed a tortious act of interference with a business contract to which the company has a right to compensation.

In either instance, in order to take him to court, both Reynolds and Reynolds and its CEO Robert Brockman have a right to know who it is making the accusations. Google will soon hear from the Supreme Court of Texas whether the information it possesses about the anonymous Mr. Trooper must be turned over to Reynolds and Reynolds.

David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at
DaveLandon@DaytonCityPaper.com.

 

 

 

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