Timewaster's Guide Archive
General => Everything Else => Topic started by: Eerongal on August 20, 2009, 02:57:15 PM
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http://government.zdnet.com/?p=5262
Due to a court ruling, google was required to give up the identity of a blogger who called a model a "skank".
Does this seem like a violation of free speech to anyone else?
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Well, to be fair, she wasn't just calling the woman a skank. The person also said the model was over 40 (she's not) and spread a lot of other damaging misinformation, and did it in a public place. Free speech is protected only up to a point. For public figures, it is protected even less. The blogger was making money of her site, so again, the protection is reduced. Also, when free speech starts harming other people, well, the law doesn't give it as much shielding.
P.S. I think your link is broken. Try this one http://www.nationalpost.com/news/story.html?id=1910409
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Well, to be fair, she wasn't just calling the woman a skank. The person also said the model was over 40 (she's not) and spread a lot of other damaging misinformation, and did it in a public place. Free speech is protected only up to a point. For public figures, it is protected even less. The blogger was making money of her site, so again, the protection is reduced. Also, when free speech starts harming other people, well, the law doesn't give it as much shielding.
P.S. I think your link is broken. Try this one http://www.nationalpost.com/news/story.html?id=1910409
Really? I just clicked the link and it loaded just fine for me.
also: What specifically was said was as follows:
I would have to say that the first place award for "Skankiest in NYC" would have to go to Liskula Gentile Cohen. How old is this skank? 40 something? She's a psychotic, lying, whoring, still going to clubs at her age, skank. Yeah she may have been hot 10 years ago, but is it really attractive to watch this old hag straddle dudes in a nightclub or lounge? Desperation seeps from her soul, if she even has one.
Most of that is very obviously personal opinion. The quote about being over 40 appears to have been a guess (kinda close, she's in her late 30's. 37 to be exact)
Also: apparently the blog only had 5 posts. For some reason I kinda doubt the blogger was being paid to do so, though I could be wrong. (Not many bloggers get paid. Some do, though.)
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Er... calling someone "psychotic, lying, and whoring" and saying she straddles dudes at night clubs appears to be an assertion of facts as well, and not very pleasant ones.
While it is true that some of what was said was personal opinion, it was personal opinion which aimed at damaging the reputation of another. The law isn't going to protect that when it's said in a public forum. If the blogger had said this in her ubber-secret, private blog that is password protected and only her mom can read it, well, then yeah, that would be protected. This wasn't however. This was posted on a website caleld "Skanks of New York" that not only was open to the public, but the public was expressly invited to read it.
In the same sense that shouting "fire" in a movie theater is not protected free speech, other words in public forums that can and will cause harm other people are not protected.
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Er... calling someone "psychotic, lying, and whoring" and saying she straddles dudes at night clubs appears to be an assertion of facts as well, and not very pleasant ones.
While it is true that some of what was said was personal opinion, it was personal opinion which aimed at damaging the reputation of another. The law isn't going to protect that when it's said in a public forum. If the blogger had said this in her ubber-secret, private blog that is password protected and only her mom can read it, well, then yeah, that would be protected. This wasn't however. This was posted on a website caleld "Skanks of New York" that not only was open to the public, but the public was expressly invited to read it.
without her citing any form of information, these are EASILY opinion.
"Psychotic?" Without her stating she has some for of mental handicap or illness, saying she's psychotic only means that this person in particular thinks she's crazy, which everyone has different definitions of what qualifies as crazy.
"Lying?" She didn't claim any specific thing she said was a lie. She may have lied about something, maybe not. Maybe something the blogger precieved as a lie may not have been so. Maybe the blogger doesn't trust her word, and classifies her as "lying" as a general thing, despite the fact that everything she says cannot possibly be a lie.
"Whore?" This is definately a matter of opinion. What classifies as a whore to one person won't to another, as there is not "standard" definition of a whore. Sleeping with one person may make you a "whore" in someone's eyes, but not in others.
"Straddles dudes at night clubs" could possibly be percieved as a factual statement, though I would be hard pressed to believe a model claiming she has never done this, personally.
As this is all opinion without citing/claiming some particulars, it falls underThe Universal Declaration of Human Rights statement (From the UN) that states:
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and impart information and ideas through any media regardless of frontiers"
In the same sense that shouting "fire" in a movie theater is not protected free speech, other words in public forums that can and will cause harm other people are not protected.
No it isn't. Yelling "fire" in a movie theater is not allowed because it is defined as "Imminent lawless action", which is defined as anything that presents "clear and present danger". Unless it puts someone (in this case, the model.) in some form of percieved dangerous situation, it is nothing like this.
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Ah, see, now you've gone and done it. Now I have to get all lawyerly on you.
*sigh*
Apologies to anyone reading this post.
You cite to the United Nations Declaration. That's all well and good. It's a great document, with great goals.
It is not the controlling law in New York. In the state of New York (where all this happened), the law states that certain types of speech are considered defamation under any circumstances as long as they cause damages to the person. Defamation is not protected speech, and you can be sued for it. Here are the types of speech automatically considered defamation in the state of New York: “statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease, or (iv) imputing unchastity to a woman ...” It doesn't matter whether it's opinion or not, it's still defamation. If you want a case citation for the above, look up Andrews v. Hansford Mfg. Corp., 2002 WL 193139 (N.Y.Sup., 2002.) on the Westlaw legal database (but be prepared to pay a small fee unless you own a subscription).
Alright, so I'm no expert on defamation law--I work for a judge who handles mostly criminal cases and social security appeals--but it really doesn't take an expert to see that this blogger hit two of the categories. Alleging that a supermodel is a "forty something" can't help her career. Even if she isn't forty-something, the fact that she looks it is not going to help her get her next modeling gig. So not only is it defamation per se, it also harms her financialy, which means she can prove damages, which means she can sue, and also means she will probably win. To be able to sue, first she has to know the identity of the individual, and for that to happen, Google has to reveal it. Bang, there you go, no violation of First Amendment because Google outed the blogger.
Furthermore, she called the model a whore, so you have the whole "imputing unchastity to a woman" thing. While this may or may not have caused damages this day and age (I don't know the girl, so I won't judge, but I do know quite a few women who's lives would be damaged quite a bit by being blasted as a whore by a complete stranger on the internet), it is still defamation per se under the law.
Now, there are defenses to defamation, cases where saying all those nasty things won't make you liable to suit, but that is a matter to be settled in court, but before you get to court, well, you have to know the identity of the blogger. Which is what happened. It may very well end up that this was protected First Amendment speech, but that's something that will be settled in court.
Basically, you can't throw rocks at people from the bushes and expect to remain anonymous.
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Ah, see, now you've gone and done it. Now I have to get all lawyerly on you.
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*snip*
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Basically, you can't throw rocks at people from the bushes and expect to remain anonymous.
While I have to conceed that your experience in this matter may be higher than mine (i'm under the assumption that you are a lawyer from the previous statements), and I certainly conceed that I don't know NEW YORK law, i *DO* know that the 1964 case New York Times Co. v. Sullivan set a precendence that public figures could win a libel suit only if they could demonstrate the publisher's "knowledge that the information was false". Given that there's no actual facts that can be disproved, i don't foresee suing being accomplished.
also: I have to say at this juncture, thanks for remaining civil. It's not usually an issue around here, but i always feel it needs to be said on the interwebs when a debate remains civil.
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No problem :) I like civil debates, hence the reason I'm an attorney.
First, accusation of "straddl[ing] dudes in a night clubs" is an assertion of fact, so, yeah, she has a case on just that, but first she'd have to know the identity of the blogger so she could show that the blogger had accompanied her to nightclubs and therefore would know if she had/had not straddled dudes. So once more, Google has to out the blogger's identity.
Now, you also opened the whole "public figure" can of worms, or what is known as the "fair comment privilege", which begs the question, is a model considered a public figure? Well, a public figure is someone "in whom the public has a continuing interest" and who also invites public comment American Jurisprudence, Libel, Section 87. So yes, if she put herself out there, engaged in interviews, wanted the media to scrutinize her life, well then she's a public figure and has to prove the facts. But, of course, you'd have to prove that by slogging through old internet news articles, because all of the new stuff is about the whole defamation/libel issue. Have fun with that if you really want to dig at it. Of course, that doesn't negate the fact that actual facts were stated, so she gets to know who the blogger was regardless so she can verify whether the blogger knew the facts to be false.
Moving on. The case was actually tried under the new cyber bullying law... which I don't have time to look up right now, but I know it makes bloggers more subject to suit/prosecution. Anyway, I'll bring that one up if you want another round ;D
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Moving on. The case was actually tried under the new cyber bullying law... which I don't have time to look up right now, but I know it makes bloggers more subject to suit/prosecution. Anyway, I'll bring that one up if you want another round ;D
I'm pretty sure the specific cyber bullying laws differ by state, but don't they only apply to misleading/leading on individuals and/or trying to jepordize their personal affairs (i.e. posting their personal information on a public forum)?
I have to admit that I honestly don't know a whole lot about the new cyber bullying stuff that's been getting put into action (though I do know my state is currently pretty hardcore into it. I live in missori :P)
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Yeah, they just had a big case go down in Missouri, right? The girl committed suicide after another girl's mom said/did some nasty things? Yeah, read about that one. What part of Missouri? I used to live in Springfield once upon a time.
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Yeah, they just had a big case go down in Missouri, right? The girl committed suicide after another girl's mom said/did some nasty things? Yeah, read about that one. What part of Missouri? I used to live in Springfield once upon a time.
Yeah, her mom pretended to be some guy interested in her on like myspace or something. There was also an arrest within the past week (in newspaper on tuesday or so) under cyber bullying laws, this last one, the woman posted a picture and info of some teenage girl she didn't like in the "casual encounters" section of craig's list.
I live up in o'fallon (missouri, obviously, not illinois). It's like right outside of st. louis ('bout 20 minutes or so), right next to st. charles.
edit: also - both of these cases were like right in my backyard, so to speak. Both cases had the person out of st. charles, i believe.
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For me personally, I feel that these sort of cases are a step in the right direction. All they are really doing is making internet speech regulation similar to everyday interaction. For the longest time, because the internet was so anonymous and new, people could get away with things (i.e. defamation or otherwise messing with people's lives) that they couldn't otherwise do in other established media outlets. Well, now they can't. Personally, I think that's a good thing; I mean, seriously, have you read some of the flame threads out there? I can't stand to read the comments on Fox News or CNN because people are always spewing hatred of one form or another.
Don't get me wrong; I'm not sue happy. In fact, I think the world would be a much better place if everyone let the little stuff slide and tried to settle the big stuff outside of court, but on the other hand, people can and will run wild if there is no threat of repercussions.
/gets down off soap box
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I was going to post a rant, but then I saw lawyery stuff(... is that a word? Well.. It is now..,) and well, I got scared. So, here is a not long not ranty post. :)
I watch the Daily Show and Colbert mostly every night and the stuff they show from FOX is about as bad as the blog. They're calling people traitors, lunitics, idiots, etc. As a Staff Sgt (sep) from the U.S. Air Force, I would be pissed if some guy called me a traitor on primetime tv because he didn't agree with my point of view. Despite this, they do it almost nightly (and go to the point of actually making accusations about our president being a traitor himself!) but nothing ever happens from it.
While I agree that this stuff should stop, it just goes to show how messed up things are here. They're going after some unknown blogger because the person suing has more money... but there is no way they'll go against a big corp and their army of lawyers.
Blah... sound too ranty?
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Er... not too ranty, but I'm having trouble following you. You are upset that a celebrity will go after a blogger for defamation, but that nobody will go after Fox News? Or did I miss your point?
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I believe that that is what he's saying. Because little people have little protection, they are more susceptible to legal bullying.
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Actually, that's both right and wrong. Because the supermodel is all rich and famous, she has a much harder time of proving defamation. If the comments had been made about joe-schmoe citizen, well, proving defamation would be easy, and the case would be a slam dunk. The defendant (the person who made the crap comments) would probably settle with the attorney without too much hassle.
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I really like this discussion, and I have two comments. First, I think we should separate Free Speech with Anonymity. The blogger, at the time Google revealed his/her identity, was not found at fault for her words. However, if your saying something about another person, negative or otherwise, you should have the right to know who it is.
StriderA,
As for Colbert and The Daily Show Vs Fox News; editing is a wonderful thing (R. Lee Irmy had an entire conversation with John Wayne in a beer commercial, despite Mr. Wayne being quite dead for many years). These shows are supposed to be for entertainment; they are not designed to be entirely factual, to say the least. Therefore, before passing judgement on FoxNews, I would strongly suggest learning the context of the statements made. I would also recommend keeping track of the number of times Colbert and Stewart defame others in the name of comedy(which doesn't seem to bother you). Ironically, your post proves that there are people who harbor animosity towards FoxNews based on the "parody" of the stories told on these shows. Does that mean that FoxNews can sue Viacomm for slander? Or is it OK to defame people so long as it is supposed to be funny?
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Legally speaking, its legit. Morally speaking, well, generally people will judge that one depending on the lense they use to view the world around them. People draw the line in some funny places.
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Apparently she was not considered a public figure. Read the following:
http://www.nydailynews.com/gossip/2009/08/23/2009-08-23_outted_blogger_rosemary_port_blames_model_liskula_cohen_for_skank_stink.html
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She's already slated to go on Good Morning America. I guess all publicity is good publicity for models. Know the media, she'll probably be signed up for a model shoot by the end of the week. Ahh, god bless America.
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Indeed.
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"A Manhattan Supreme Court judge forced Google to unmask Port, rejecting Port's claim that blogs "serve as a modern-day forum for conveying personal opinions, including invective and ranting" and shouldn't be regarded as fact."
Someone has obviously never seen a blog.
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Basically Port was arguing that she didn't make any factual allegations. She was trying to make the point that it was just a place where people spout off opinions, and that nothing said by her could be construed as fact.
I agree with your point that much of blogging is just that--spouting opinions; however, just by calling it a blog, you do not get an automatic pass. If you mix some facts in there, well, then it's still defamation.
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Basically Port was arguing that she didn't make any factual allegations. She was trying to make the point that it was just a place where people spout off opinions, and that nothing said by her could be construed as fact.
I agree with your point that much of blogging is just that--spouting opinions; however, just by calling it a blog, you do not get an automatic pass. If you mix some facts in there, well, then it's still defamation.
well, unless i'm misreading the quote, to me it's saying that the judge is saying that her claim"serve as a modern-day forum for conveying personal opinions, including invective and ranting" should not be regarded as a fact. Though I could see it also meaning that she was saying it should not be regarded as fact, but it's no longer in quotes, so I'm assuming it's going back to the judge's decision saying that her statement shouldnt be regarded as fact
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Wow. That got really convoluted really quick. I'd have to read the judge's opinion to know for sure because the press is only paraphrasing what the judge actually said, and they are so hot on getting the legal bits down perfect.
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So, legally, if she had small print saying "All comments made in this blog are purely opinion and should not be taken as fact" she would have been ok? I need to know if I should add that to my blog :P
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well, unless i'm misreading the quote, to me it's saying that the judge is saying that her claim"serve as a modern-day forum for conveying personal opinions, including invective and ranting" should not be regarded as a fact. Though I could see it also meaning that she was saying it should not be regarded as fact, but it's no longer in quotes, so I'm assuming it's going back to the judge's decision saying that her statement shouldnt be regarded as fact
I think that it's the reporter paraphrasing the end of her quote, as if you look at the sentence it doesn't make any grammatical sense if you read that all (except for the stuff in double quotes) as the judge's quote.
What probably happened is that the "should not be regarded as fact" part was in a different part of the lady's statement, so to make a nice and tidy quote the reporter couldn't put it all in quotation marks. Of course the reporter could have put it all in quotes and just gotten the approval of the lady to publish that as exactly what she said.
I would like to hit that judge in the face with the emo half of Livejournal. Then he will realize that the problem with the internet is stupidity and taking yourself too seriously. You can't ban stupid people; there are too many of them.
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Well... I"m not sure a general disclaimer would save your blog. I mean, that's like parking a truck in your front yard, and putting a disclaimer sign on it that says, "This is not a truck." If you say everything on your blog is opinion, well, it had better be opinion, not facts in disguise.
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that's like parking a truck in your front yard, and putting a disclaimer sign on it that says, "This is not a truck."
I wanna do this now. If only i had a truck.....
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the real kicker on this whole thing is that when this suit was filed, the blog had been inactive for over 6 months.
Defamation has to actually harm a person, which is why unknown people dont sue each other for it. You have to actually have a modicum of fame before you can be defamed.
there have been LOTS of defamtio suits over blogs,. See the wiki:
http://en.wikipedia.org/wiki/Blog