Monday, September 04, 2006

The ACLU is a Pain in the Ass

You would think that a good old lefty like me would embrace an organization like the ACLU. You would think wrong. While I can cite many good things they have done I would rather embrace a stingray. There is a case in the California Supreme Court tomorrow that illustrates my concerns with this organization.

Starting in the late 1990s a series of libelous posts appeared on the internet, and in newsgroups from various "alternative medicine" activists defaming many people, including me on occasion. At the time one of the major instigators of the defamation was a pest by the name of Patrick Timothy Bolen, a free-lance "publicist' for Hulda Clark. (All these names carry extensive google references). The postings of Bolen were picked up and repeated verbatim over 1000 times (by count) by a alternative breast cancer treatment activist Ilena Rosenthal, who posted under various aliases. Rosenthal was told many times by the main persons being defamed, Terry Polovoy, MD, Steven Barrett, MD, and Robert Baratz, MD, DDS, Ph. D., that her postings contained false and defamatory information and to please desist. Rosenthal refused. Finally a lawsuit was filed for libel and defamation of character.

The trial judge, citing the Internet Decency Act divorced Rosenthal from the other defendants in the case. This decision was overturned by a federal appeals court and will now be heard in the CA supreme court only as pertaining to Rosenthal.

The ACLU and the EFF (Electronic Freedom Foundation) has stepped into the case, uninvited as usual, to argue in an amicus brief for Rosenthal. Basically they argue that there is no remedy for defamation (first or second hand) on the internet.

This is typical of the worst of the bullet-headed things the ACLU does. It matters little to them that defamation has occured, but that they uphold some sort of "principal" which for the life of me, no one can understand.

I accuse the some of my Libertarian friends of being anarchists, mostly tongue in cheek. But the real anarchist is a group like the ACLU, for whom anything goes, without regard for the injury involved, as long as they, the sole interpreter of what is right or wrong, can continue to have influence.

My advice to the ACLU? Butt out.

Stick to what you do, that I can agree with you doing. Keeping a eye on governmental intrusion into civil liberties. Stay the hell out of the way of established civil law.


Blogger 417pundit said...

Care to cite the "established civil law" which pertains to the Internet? Really hard to buy into your argument when you provide no citations for anything. Learn to link, John. It's so simple, even you should be able to do it.

2:09 PM, September 05, 2006  
Blogger 417pundit said...

Without taking a stand on anything contained in the material re-posted by Ilena Rosenthal, or any views she might hold, or any views held by anyone else, here is a news release provided by the Northern California Chapter of the ACLU, which contains links to its and the EFF's arguments in this case:

It should be noted that the ACLU filed a "friend of the court" brief, which is often done. They did not "stick their nose in uninvited" as John would have you believe.

I'm not taking a position for or against Ilena Rosenthal or John Stone. But I do believe the ACLU is doing exactly what its mission calls for, defending our civil liberties. Should the court rule against Ilena Rosenthal, John Stone may find himself a defendant in a defamation lawsuit brought by Vince Jericho.

2:24 PM, September 05, 2006  
Blogger John Stone said...

Well, Punnit, that's pretty close to the dumbest argument I have heard since I last attended a Libertarian meet-up.

This is a *civil* case, involving defamation, the law is so well established on what constitutes defamation it is obvious to even anyone who can't use google.

It does not involve a violation of the civil rights by the government of anyone. The EFF has stuck it's nose in the game because it is a lobby for ISPs who don't want any responsibility at all for what they do.

I don't see where anyone can slander another person without possible penalty. The defense of course is truth. Or you can state your opinion to your heart's content nad be protected under Free Speech. Or if the individuals slandered are "public persons" a different standard applies than to you or me.

The ACLU has no business in any part of this case ... it is none of their damn business. And in fact the EFF and the ACLU have both stated that they worked in concert on thir briefs.

For instance, if I accuse VD(J) of a crime he didn't commit, like Ilena Rosenthal has done to me and a lot of others, you're damn right - he could sue my pants off. If I call him, or you, an idiot, I am perfectly safe.

3:10 PM, September 05, 2006  
Blogger 417pundit said...

Of course it is a civil case. All defamation suits are civil suits. Defamation falls under tort law. For this to be a libel suit, publication must have taken place. Ergo, the Internet must be treated as a form of publication. However, there is very little case law dealing with the Internet. It's new territory. Is it similar to broadcasting, or print? Which case law applies if it is treated like broadcasting? Which if it is treated like print?

Slander is different from libel. Should this be a slander case, or a libel case? The issue seems to be whether a "user" is protected for re-posting potentially defamatory statements made by another entity.

The defamed party must also demonstrate harm. Has Ilena Rosenthal harmed your reputation? If not, then you have not been defamed.

If Jericho can demonstrate that your calling him an idiot has harmed his reputation, he may win a defamation suit. If you did so on your blog, is that publication? If so, libel law applies.

Yes, there is a great deal of case law. But very little of it applies to the Internet. And since the government provided special protections for the Internet in the Communication Decency Act, Ilena Rosenthal may very well be protected from a libel suit. I repeat, this is NEW territory with NO established case law. Cite me another case supporting your claim and I'll gladly admit you're correct and I'm wrong.

The ACLU'v involvement is because of the special protection for Internet publication created by Congress. The government is very much involved in this case.

And by the way, Ilena Rosenthal does not have to prove truth. The defendant in a libel case must prove the falsity of the statement. That's what established case law says.

6:43 PM, September 05, 2006  
Anonymous Anonymous said...

If someone said 417punintended kicks puppies for fun, and is a pompous asshat... is that slander, or libel?

10:17 PM, September 05, 2006  
Blogger John Stone said...

Eric Goldman, who I don't think I know, sent me a link to his posting of what he heard at the arguments.

While I thank him, at this stage of the game I prefer to read a transcript or just wait for the decision, rather than having it filtered thru an interested listner, no matter which side. Of course, they argued the law, and I don't uderstand many of the legal references, and the facts of the case, are really not of much interest to their court. Besides it is just to determine whether Rosenthal can be reenjoined to the case when it does go to trial and the facts do matter.

Slander or libel, Punnit? To me it's a publication -- slam dunk I would think - but I don't think like a lawyer. And by the definition of the fact that they are at that level is indicative that there is no case law. Or that the SC considers this case to be unique.

And as far as I am concerned you could do just about anything to me because I don't have anything that's put at risk if you are an obnoxious asshat, and I am getting too old to get mixed up in court cases. However, if I were a physician, and I could lose my license to practice if I am a criminal ... I would definitely have been damaged by Bolen/Rosenthal -- and this was exactly their purpose. Indeed, I did talk over with counsel about bringing a "malicious prosecution" lawsuit against Bolen and his attorney Carlos Negrete at one time. I didn't, but several others did, and that case is winding it's way thru various jurisdictions.

And no, Punnit, I said truth is her defense -- she is the defendant - as such she must defend her acts, and truth is a defense she could use, but won't, since it wasn't.The plaintiff does not have to prove a negative anymore than I am interested in doing so. She must hide by carving out a special place for behaving badly on the internet and in what it is to defame someone. She has a very tough road to climb.

5:39 AM, September 06, 2006  
Blogger John Stone said...

Below is a note sent to the HealthFraud newslist in response to some California news reporting. Cris Grell argued the case for the plaintiff.

Either I was in the wrong court or this Reporter was. For example, he talks about the argument made by Jain, a partner in Washington, D.C.'s Wilmer Cutler Pickering Hale when the guy did not even argue.
Equally disingenuous is the reporters discussion about authority. If there was a lot of case law on this issue then it would not be before the Supreme Court. The fact that the California Court of Appeals accepted my arguments and held that the authority the the other side relied on was seriously flawed, provided the basis for the Appellate Court's rejection of the So -called wealth of Authority. The Court even asked Rosenthal's attorney if the Supreme Court should act like lemmings and follow a line of authority that is based on a flawed analyze.
The so called policy augments that i was making had to do the well established case law rules, not public policy rules, that Court are required to follow when interpreting a statute. As pointed out to the Supreme Court, the only court do actually Analise the statue under the rules of statutory interpretation concluded that there is nothing in the legislative history of Section 230 that precluded distributor or noticed based liability. Read Zeran, the leading case that the other courts have relied on. In it, the court concedes that section 230 was amended to eliminated strict publisher liability not notice based liability. Clearly, this reporter is clueless as to this point.
As for the two California cases, in the the Court of Appeals decision, the court clearly pointed out in the rulings in this case did not involved the issue involved in the Polevoy case. Apparently, this guy never bothered to read the appeals court decision.
In fact, the Court did not even ask me about these two cases. Why, because most of the other justices knew what the Court of Appeals had to say.
No one slammed any door in my face. In fact, the Court was very gracious allowing and listening to the arguments that were made, the same arguments and even better ones than the ones made before the Court of Appeals, who accepted my arguments and ruled in Dr. Polevoys favor. Not surprisingly, the media gave this decision very little coverage.
The fact that this guy makes no mention of any of the questions directed at Goldowitz and the ACLU attorney shows also shows how bias this reporter is.
In fact, after i read a quote from an earlier Supreme Court case where the Supreme Court stated that courts should not following cases that fail to properly analyze a statute under the rules of statutory interpretation, which no court has done except the California Court of Appeal, the Court asked Goldowitz if the Supreme Court should act like lemmings and blindly follow a decision where the analysis is flawed ie Zeran.
In short, the arguments I made did not bomb. These same arguments and even better ones were the same arguments that convinced the Court of Appeals to rule in our favor.
In addition, the arguments were also made by the Court of Appeals so that they were based on solid ground. .
Another point that this reporter does not mention is that in the legislative history, the Congress specifically looked a strict publisher liability not distributor liability when it enacted Section 230
This clown also ignored the arguments about how absolute immunity would conflict with federal law like the Fair Housing Act etc.since users and providers would have no liability for discriminatory ads that would violate the law if published anywhere else. Does anyone really think that Congress intended to immunize providers and users who knowing allow discriminatory ads to be placed on the websites?
It is too bad that the media is taking such a one sided view of the presentation. Then again, the Court of Appeals decision received little to no coverage.
I guess a law that imposes a responsibility on the Internet press and irresponsible users who have no problem publishing material that is libelous, discriminatory, an invasion of privacy,and similar laws regardless of the injury it can cause to a person's reputation, which the United State Suprreme court and the California Supreme court have both held is one of the foundations of a decent society that once lost, can almost never be recovered, is not something that the Internet providers and users give a dam about. .
In short, the basis for the claim that Section 230 of the Communication Act should not bestow absolute immunity to users who republish re-post libelous material and in the process, substantially contribute to the destruction of a person's reputation, is contrary to every rule of statutory interpretation especially those rules that must be applied when competing constitutional rights are involved. Of course, this Reporter does not mention any of these points nor does he mention any of the absurd results that will follow if the Court finds that Section 230 bestows absolute immunity to people like Rosenthal for republishing libelous material that she knows is false.
On the flip side, the Court did ask Rosenthal's attorney about the danger and mischief that anonymous postings of libelous material would cause since anyone could copy and paste it to a site without any liability.
If the court grants absolute immunity, I imagine we will see what happens when these sites start popping up that provide for this kind of interactive communication. will become a wonderful vehicle for re-posting libelous statements authored by a third person without having to worry about liability since you are immunized.
I am sure that this is exactly what congress intended when it passed the communication decency act and section 230 which specifically states that its purpose is to immunize users and providers who remove offensive material, not protect and distribute it.
Chris Grell

6:56 PM, September 06, 2006  
Anonymous Anonymous said...

Hey Stoned! You're still a few bricks short....

If it's true it ain't libel.

Rosenthal has proven the materials she reposted have a basis in fact.

6:18 AM, September 12, 2006  
Blogger John Stone said...

Anon .. .you are so full of shit ...

Go to the public records of Toronto Canada, and point me to the web page containing the document that Terry Polvoy, MD, has either been accused or convicted of a crime.

That's what she says, and you say it's a fact? And Dr. Polvoy says it's slander and libel -- and actionable.

Whatever it is that you smoke, shoot, or rub in your belly --- give me some too -- it sounds like really good shit ...

6:49 AM, September 12, 2006  
Blogger Ilena Rose said...

I just found this post and thought I would do some follow-up.

John Stone wrote blatantly untrue statements about me and this case.

1- I am an activist raising awareness to the dangers of breast implants.

2- I did not repost the original posting 100 times ... or anywhere near that.

3- I NEVER posted under aliases ... this is the tactics of the losing plaintiffs and typical smearing.

4- In November, the Supreme Court of California ruled that nothing I had written was actionable ... that I had NOT defamed Barrett.

5- During the course of this 6 years of litigation ... the losing plaintiffs have attempted to highjack my personal and good name and replace it with their fantasy version ... John Stone is but one of several.

12:37 PM, June 28, 2007  
Anonymous Dr Hulda Clark said...

I'm not taking a position for or against Ilena Rosenthal or John Stone. But I do believe the ACLU is doing exactly what its mission calls for, defending our civil liberties. Should the court rule against Ilena Rosenthal, John Stone may find himself a defendant in a defamation lawsuit brought by Vince Jericho.

1:54 PM, August 24, 2009  

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