Texas Bar Owner Loses Defamation Suit Against Blogger

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Dallas County Court Judge Mark Greenberg last week ended an 18-month courtroom battle, ruling in Fernando Rosales & Initiative Partners LLC d/b/a Lost Society v. Avi Adelman et al. (Case No. CC10-08658-E) that a blogger did not defame a bar owner.

According to an account on the Reporters Committee for Freedom of the Press Web site ( www.rcfp.org.), the case arose from blog posts as long ago as June 2010, on Adelman's BarkingDogs.org site regarding alleged business ordinance violations and customer violence involving the Lost Society bar. The allegedly libelous statement by the defendant characterized Rosales as a "scumbag owner" of  the Lost Society bar, the purported site where a victim and his alleged killer "partied" before the shooting occurred, according to a blog post by Adelman. The bar was shut down in October 2011, soon after Rosales's arrest for possession of a controlled substance.

Judge Greenberg ordered the plaintiffs to pay court costs. During the protracted litigation, the plaintiffs unsuccessfully sought an injunction to shut down Adelman's Web site and also subpoenaed him to reveal the source(s) of his post about the fatal shooting, which Adelman defeated by invoking the Texas Shield Law [Texas Civil Practices & Remedies Code §22.021-22.027; Texas Code of Criminal Procedure Arts. 38.11 and 38.111].

UPDATE: NJ Appellate Court Says Blogger Unprotected by Shield Law

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Judge Rules NJ Shield Law No Help to Blogger

In a case of first impression, a Superior Court judge in Monmouth County, NJ, has ruled that New Jersey's shield law (N.J. Stat. sec. 2A: 84A-21 to 21.8), which protects against disclosure of confidential information to the government, only applies to persons affiliated with the news media and offers no solace to a private individual blogging from Washington.

Presiding over the defamation, false light, trade libel action, Too Much Media, LLC, John Albright and Charles Berrebbi v. Shellee Hale and John Does 1-13 (Case No. L2736-08), Judge Louis Locascio wrote in a 19-page opinion that Hale, a licensed private investigator, is not a journalist engaged in disseminating information eligible for shield law coverage, but rather, a "private person with unexplained motives for her postings." Though characterizing the Garden State's shield law as broad, Judge Locascio said legislators who passed the measure "could not have anticipated the instaneity with which people can now transmit information."

Because she is not a journalist, Judge Locascio held that Hale not only cannot avail herself of the shield law, but also that she could be found liable for defamation if the plaintiffs prove her postings critical of them were merely negligent, rather than requiring the plaintiffs to satisfy the higher standard of proving the postings were made with "actual malice" mandated in cases involving media defendants. Moreover, because Hale's posts accuse the plaintiffs of engaging in criminal conduct and question their competence as businesspeople, Judge Locascio ruled the plaintiffs can seek damages against the defendant without having to demonstrate they suffered actual financial loss.

"Too Much," a computer software supplier that services the online adult entertainment industry, allege that Hale blogged postings on a pornography industry message board accusing the plaintiffs of threatening her life and violating New Jersey's identity theft statute. Hale focused on NATS, a "Too Much" product that facilitates businesses linked to one another in tracking click-generated commissions. Faced with having to reveal the sources of her allegations in a deposition, Hale sought shield law protection.

Judge Locascio wrote that Hale's posts did not undergo editorial review or rigorous fact-checking, and likened them, not to journalistic writing, but rather to anonymous public comments that follow news articles on journalism Web sites. To extend shield law protection to Hale, Judge Locascio wrote, "would mean anyone with an email address, with no connection to any legitimate news publication, would post anything on the Internet and hide behind the shield law's protections."

If the decision is appealed as expected, and subsequently upheld, online amateur journalists who want the comfort of shield law protection had better shore up their news media connection before venturing down New Jersey's virtual turnpike.

Does Ky. Shield Law Cover More than Plaintiff's Dress?.

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The Richmond (Ky.) Register is relying on the Commonwealth's Shield Law and the First Amendment to support its refusal to divulge the identity of an anoymous poster on a forum linked to the newspaper who allegedly defamed a college student involved in a dust-up with mall security, according to The (Louisville) Journal-Courier.

Kymberly Clem, a student at Eastern Kentucky Univ., was booted from the Richmond Mall on Aug. 9, 2008, purportedly because the dress she was wearing--and had purchased the previous day at that mall--was too short. The story garnered national attention and a posting from a blogger identified as "12bme" that appeared on Aug. 13, 2008, following a Register story about the incident alleged that Ms. Clem was escorted from the Mall because she exposed herself to a woman accompanied by her children who supposedly commented on the dress length.

Clem sued 12bme for defamation in Madison Circuit Court and subpoenaed The Register to obtain the poster's identity. Predictably, the newspaper argues a First Amendment right for itself and 12bme to speak freely in the public forum of an online site. However, the Register also contends that Kentucky's Shield Law, adopted in 1936, prohibits the Court in the Clem case from requiring the Register to disclose the identity of 12bme, whom the Register claims is a confidential source because a Register reporter wrote a story about the Clem matter that cited the posting.

Clem's attorney counters that the posting is false and unprotected by the 1st Amendment, particularly because it accuses Clem of criminal conduct, that is, indecent exposure. Although the Register is contesting the subpoena, it not only removed the posting at issue, but banned 12bme from making future comments in the forum.

Blogger Busted for Alleged Death Threats to Judges

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FBI agents in North Bergen, N.J, yesterday arrested controversial Internet radio host and blogger Hal Turner for allegedly posting death threats against three judges sitting on the U.S. Circuit Court of Appeals for the Seventh Circuit.

Turner was scheduled to appear before a federal magistrate in Newark, N.J., today, but will be tried in Chicago following a criminal complaint issued in the U.S. District Court for the Northern District of Illinois charging him with threatening to assault and murder three federal judges with intent to retaliate against them for performing official duties. If convicted, the 47-year-old Turner faces a $250,000 fine and up to 10 years in prison, according to a press release from the office of U.S. Attorney Patrick Fitzgerald.

Authorities claim Turner was upset by the appellate court's unanimous decision on June 2 in National Rifle Assn. v. Chicago (No. 08-4241, 08-4243, 08-4244) that upheld a trial judge's dismissal of challenges to handgun bans in Chicago and suburban Oak Park, Ill. The opinion was written by Judge Frank Easterbrook, who allegedly was targeted by Turner, along with Judge Richard Posner and Judge William Bauer, who joined in the decision.

The criminal complaint alleges that on June 2, Turner wrote a Web post entitled "OUTRAGE: Chicago Gun Ban UPHELD," that discussed the decision and allegedly stated: "These judges deserve to be killed." The post alluded to another 7th Circuit case involving the murder of a judge's spouse and mother, allegedly stating: "Apparently, the U.S. 7th Circuit Court didn't get the hint after those killings. It appears another lesson is needed."

According to authorities, on June 3, Turner 's blog included an item listing the names, photos, work address, room numbers, and telephones numbers of the three judges, along with a photo of Chicago's Dirksen Federal Courthouse modified with arrows marking anti-truck bomb barriers.

Earlier this month, Turner was arrested in N.J. by Connecticut State Police and charged with the felony of inciting injury to persons based on blog postings that allegedly called for violence against two Connecticut lawmakers and a state official.