As some of you may be aware, this past week, the 7th Circuit of the U.S. Appellate Court more or less declared that the Illinois Eavesdropping Law was Unconstitutional in its present form. As an Illinois Attorney, the decision came as no shock to me at all. Previous to the decision, lawmakers of both Houses of the Illinois Legislature jacked around with the statute in an effort to make it conform with constitutional principles. Some wanted the statute completely amended to only require one party’s consent; others wanted to amend it to include an exception only for law enforcement; yet others wanted an exception only for law enforcement officers in public places; others suggested this, and others that.
Bottom line, if you’re in a public place, and your conversation can be overheard by others without the assistance of electronic equipment, it’s my belief that your conversation is fair game for anyone and everyone to record; that is because you shouldn’t have an expectation of privacy in a conversation others can overhear; if you don’t want it recorded, relocate to someplace a little more private.
My interest in the controversy surrounding the constitutionality of our eavesdropping law was sparked a few years back when a friend and colleague’s law office was raided by law enforcement pursuant to a warrant issued to obtain a video recording his client made of an encounter with law enforcement. The prosecution became aware of the video during the trial in another matter, believed the video recording had audio and video, and all hell broke loose. My colleague wouldn’t turn over the video recording, rightfully asserting that it was privileged. They got the video anyway after the warrant was executed, and it sparked a lot of debate amongst the criminal defense attorneys in Bloomington and the McLean County Bar Association.
Prior to the 7th Circuit’s ruling, many Illinois Attorneys were also of the opinion that the law in its current form was unconstitutional, including McLean County Illinois interim prosecutor, and former Circuit Court Judge, Ron Dozier. Before the decision, Dozier had been quoted in the local paper, The Pantgraph, as stating that while he was the chief prosecutor of the county, he would not pursue charges against someone believed to have violated the law.
In any event, it appears that a victory has been had for the 1st Amendment, that the unconstitutionality of the Illinois eavesdropping statute is finally at a head, and that the Illinois Eavesdropping Statute in its current form is in serious jeopardy. Thank goodness and good riddance. People shouldn’t face the possibility of going to jail for audio recording their son’s or daughter’s game since they didn’t get the permission of everyone on the field. Just as ludicrous is the idea that we as citizens cannot record our own civil servants when serving and protecting the very same individuals they’ve been sworn to serve and protect.
Filed under: General, Uncategorized by Terry Dodds
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Stone v. Paddock Publications, Inc.
This interesting little lawsuit that encompasses issues relating to free speech, first amendment rights, defamation, and the Citizen Participation Act, all began because of some derogatory statements posted on a newspaper website aimed at the son of a Buffalo Grove woman who was running for village trustee. The son initially posted anonymously in the comments section of the newspaper’s website in response to articles written about his mother before he was outed. I chose to write about it, because it involves issues common to our new world in cyberspace and builds on issues that I previously blogged about on June 14, 2010, found here: http://goo.gl/C7Pkn
The Petitioner/Plaintiff, Lisa Stone, was a candidate for Buffalo Grove Village trustee. On April 4, 2009, the Respondent-owned newspaper “The Herald” published a letter in support of Stone’s candidacy, which was made available on its website. In response to the letter and comments made by Stone’s minor child, John Doe posted a derogatory response about Stone’s qualifications for the office. Other exchanges were also made between John Doe and Stone’s son, but the one that caught the ire of the court was a response to UNCLEW’S suggestion that Hipcheck16 meet UncleW at his home to further discuss their differences. Hipcheck16 posted the following in response to UNCLEW’s invitation: Thanks for the invitation to visit you., but I’ll have to decline. Seems like you’re very willing to invite a man you only know from the internet over to your house- have you done it before, or do they usually invite you to their house? Minor’s mother filed a petition pursuant to S.Ct.R. 224, a special Illinois Supreme Court Rule, and one which our firm recently utilized, which enables litigants to file suit primarily to identify possible defendants. In this instance, Lisa Stone was utilizing S.Ct.R. 224 to ascertain John Doe’s identity in relation to alleged defamatory statements posted by him about the candidate’s son.
The trial court below entered an order permitting Stone to engage in limited discovery to ascertain the identity of Defendant Doe, a/k/a Hipcheck16. The Respondent in Discovery, Paddock Publications, Inc., responded to Stone’s initial discovery requests by only disclosing Hipcheck’s email and IP addresses. A reading of the first district’s opinion reveals that at some point during the course of the litigation it was discovered that the IP address belonged to a Comcast user or subscriber. Armed with this knowledge, Stone’s counsel requested a subpoena directed to Comcast, which the court granted, with instruction to Comcast that it inform the subscriber that he could contest the subpoena. Learning of the subpoena, Doe moved to quash it, in an effort to maintain his anonymity. The trial court denied Doe’s motion to quash, and Doe appealed arguing that the trial court erred by applying an improper standard in determining whether petitioner was entitled to discover his identity, and whether the challenged comments were immunized by the Citizen Participation Act and also protected first amendment speech. Essentially, Doe believed his First Amendment rights trumped plaintiff’s attempts to ascertain his identity, and that when weighing the competing interests of one’s constitutional rights to engage in anonymous speech, particularly political speech, versus an individual’s right to redress defamatory statements made against him, the plaintiff should be required to demonstrate a higher probability of success than would ordinarily be required in other cases not involving constitutional concerns. The first district agreed with Doe.
In its analysis, the first district concluded that Rule 224 “is intended to assist a potential plaintiff in seeking redress against a person who may be liable but the plain language of the rule also requires a petitioner to demonstrate the reason why the proposed discovery seeking the individual’s identity is ‘necessary’. The question [therefore] is what standard a petitioner must satisfy to show that the proposed discovery is necessary. In determining what is required by this language, we keep in mind that Rule 224 applies not only to petitioner’s potential defamation claim, but to any instance in which an unknown individual may be liable under any cause of action.” Nonetheless, the court said, it has a duty to construe the statute in a constitutional manner. Doe’s argument was that the court’s duty to weigh his constitutional rights to engage in anonymous speech against Petitioner’s obligation to show that the proposed discovery was necessary, in relation to this case, and others like it, required the court to be extra cautious.
In its analysis of these competing interests, the court cited earlier Illinois and United States Supreme Court cases discussing the role that anonymous speech has played throughout the course of our nation’s history. It noted that identification and fear of reprisal may deter even peaceful discussions regarding important public matters; that “’anonymity is a shield from the tyranny of the majority’”; that “an author is generally free to decide whether he wishes to disclose his true identity and his decision not to do so is an aspect of the freedom of speech provided in the first amendment”; that “discussion of public issues as well as debate regarding candidate’s qualifications are integral to the government established by our Constitution; and that society gives greater weight to the value of free speech than the danger that free speech will be misused.
Taking these principles into consideration, the court adopted the standard pronounced in the third district case of Maxon v. Ottawa Publishing Co. Maxon requires that before an anonymous speaker’s identity may be revealed, the plaintiff must demonstrate (1) that the Rule 224 Petition is verified; (2) that it states with particularity facts that would demonstrate a cause of action for defamation; (3) seeks only the identity of a potential defendant, rather than information necessary to demonstrate a cause of action for defamation; and (4) ‘‘is subjected to a hearing at which the court determines that the petition sufficiently states a cause of action for defamation against the unnamed potential defendant, i.e., the unidentified person is one who is responsible in damages to the petitioner”. Therefore, before the identity of the speaker will be revealed, the court will unilaterally require the Rule 224 petitioner to demonstrate that he could survive a 2-615 Motion to Dismiss without one having been filed by the respondent. If it is apparent to the trial court that the petitioner/plaintiff cannot demonstrate sufficient facts supporting his cause of action, the court should deny the request to reveal the identity of the speaker. The first district declined to impose a more onerous motion for summary judgment standard.
The court concluded Petitioner/Plaintiff’s cause of action was deficient, because it failed to meet the above requirements, and that Petitioner/Plaintiff had failed to allege sufficient facts to support his claim for defamation. To be actionable as defamation per se, the actual words themselves must demonstrate that the “harm is apparent and obvious on the face of the statement”. There are additional protections afforded speakers when first amendment concerns are present, which requires a showing that the actual statement is “factual”. In this case, the court was of the opinion that, “[E]ven if a sexual connotation can be read into Doe’s comment, his comment may represent nothing more than an admonishment that Jed’s conduct in inviting Doe to meet in person was unwise, not that Jed actually solicits or has been solicited for sex with anonymous men on the internet”; a statement entitled to innocent construction. The court was also of the opinion that the plaintiff had failed to allege facts and special damages sufficient to enable him to prevail on a per quod theory of recovery.
In summary, as was iterated in my last blog on this same subject, be careful what you say about others, especially in the online community where your words may be forever embedded in cyberspace; otherwise, you may too become forever married to an Illinois Attorney in years of protracted litigation over something silly you may wish you wouldn’t have said in the first place. In other words, “don’t be that guy”.
Filed under: General, Uncategorized by Terry Dodds
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Had to say goodbye to one of my mentors today. He was not only a mentor, but a friend, someone who took me under his wing, and someone who was later able to refer to me as colleague in his profession; thanks partially to his guidance. The memorial service for retired DeWitt County Circuit Judge Stephen Peters’ was held today, March 25, 2011, in Clinton, Illinois: http://goo.gl/4IHrr
He was a man that I admired very much, and who really seemed to take a liking to me since before I completed my undergraduate studies at Illinois State University (ISU). Our many conversations began while I was an intern at the DeWitt County Sheriff’s department while studying criminal justice at ISU. They continued into law school and after I entered the profession. His daughter Melissa and I went to high school together, and we even sat near one another in study hall, although she was a year or two behind me in school. I will miss our friendly conversations in his chambers; it was something I always looked forward to when I went back to Clinton. He had a tough job, and some who appeared before him might not have cared for him as much as I did, but they didn’t know the man glaring down at them from the bench like I and many others did; and like him or not, they certainly had to respect him. I was glad I was able to get a glimpse of the kind of person he was without the black robe on, and am grateful he took a liking to me. He was a good man to me, and that’s all that counts in my book.
It wasn’t shortly after he retired that he became ill. When I first heard the news, it saddened me very much, because here was a man that worked hard his entire life to get to get to his “golden years”. The time I know he worked so hard for, looked forward to, and which should have been spent enjoying with his wife, lovely daughters, and grandchildren. A time which was so suddenly shortened.
Ironically, during Melissa’s eulogy, she told everyone her father advised her that she could do whatever she wanted in life, except become an attorney. Humm, when I see him next, I’ll have to ask why I didn’t get that same sound advice, lol.
You will be missed sir.
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So, You Think You Can Say Something Defamatory About Someone On The Internet That You Might Not Otherwise Say Elsewhere, Because You Think You Can Hide Behind The Anonymity of the Internet? Well, You Might Want To Rethink That Strategy Before Deciding To Do So Now
Donald Maxon and Janet Maxon v. Ottawa Publishing Co.
Ever posted something on an online newspaper or other website that allowed you to voice your opinion about a particular article or subject anonymously? If you’re reading this and you are connected to the World Wide Web, chances are greater than not that you have. Well, the Third District of the Illinois Appellate Court and some other jurisdictions are weighing in and warning that your posts might not be so anonymous after all; that is, if they are defamatory in nature. Just ask the people who posted derogatory statements aimed at Donald and Janet Maxon (the Plaintiffs) on the online version of the newspaper, “The Times”, affiliated with Ottawa Publishing, Co. (hereinafter referred to as Ottawa Publishing), which is distributed in and around Ottawa, Illinois.
According to the court’s decision, on March 20, 2008, Ottawa Publishing posted an article on the online version of its newspaper called “MyWebTimes” , titled “Ottawa: Commissioners favor B&B additions, changes.” “The subject of the article, which generally reported on the Ottawa Planning Commission’s consideration of a proposed ordinance to allow bed and breakfast (B&B) establishments to operate in residential areas, precipitated numerous comments by readers. The article did not mention the plaintiffs by name.”
Continuing its coverage of the controversial ordinance proposal, less than a month later, Ottawa Publishing published a letter to the editor on its website titled “Precedent will be set by changing B&B ordinance!”. The letter posted to the internet again did not mention the plaintiffs by name. The post, however, again spawned readers to post numerous comments online about the issue.
Subsequently, the Maxons commenced litigation to discover the identities of the anonymous posters. As part of the lawsuit, the Maxons petitioned the court for an order requiring Ottawa Publishing to disclose “the ‘name, address, phone number, e-mail address or other account information used to establish their blog ‘identity,’ the password used for access to the blog, or other identifying information’ for “FabFive” and “birdie1.”
Pleadings were filed on both sides as to whether or not the Maxons should be allowed to move forward with their lawsuit. The circuit court also allowed each side to argue their respective positions during oral arguments on the pleadings, after which the court dismissed the Maxon’s lawsuit, noting that no precedence in Illinois had previously addressed whether such a lawsuit could proceed, and what burden had to be met in order to do so. The trial court had looked at authority from other jurisdictions, but concluded that the Maxons were not entitled to ascertain the identities of the anonymous posters. According to the opinion of the third district, the trial court adopted the analysis of these other jurisdictions, and ruled that “a petitioner seeking the disclosure of an anonymous Internet poster must show that:
(1) the anonymous poster has been notified of the potential claim so they may have the opportunity to appear; (2) the petitioners have set forth the exact statements that have been purportedly made by the anonymous person; and (3) the allegations meet a prima facie standard and are able to withstand a hypothetical motion for summary judgment as if brought by one of the potential defendants, at least with regard to elements that are within the petitioner’s knowledge. The trial court noted that the goal in applying the [above test is] to balance the rights of a person not to be defamed with the first-amendment, free-speech rights of anonymous posters. (internal citations omitted).
The trial court found that the Maxons had not satisfied the third prong of the test, believing that “the literary and social context of the statements rendered them nonactionable opinions as a matter of law.” In other words, the statements were not defamatory as a matter of law.
The Third District of the Illinois Appellate Court framed the ultimate issue as being: whether “allegedly defamatory speech enjoys any constitutional protections, such as the right to speak anonymously?”
In order for a plaintiff to be able to proceed with such an action for defamation, the third district held that:
the court must insure that the petition: (1) is verified; (2) states with particularity facts that would establish a cause of action for defamation; (3) seeks only the identity of the potential defendant and no other information necessary to establish the cause of action of defamation; and (4) is subjected to a hearing at which the court determines that the petition sufficiently states a cause of action for defamation against the unnamed potential defendant, i.e., the unidentified person is one who is responsible in damages to the petitioner. (internal citations omitted)
The court was of the opinion that any protections afforded by the United States Constitution as to cases of this nature are sufficiently addressed by such an analysis and would be adequately considered when the court makes its determination as to whether or not the plaintiff has plead sufficient facts to meet its burden “as part of [its] prima facie case”.
The long and the short of the court’s opinion appears to be that what one posts anonymously does not necessarily afford more protection than what one would say or write using their true identity. Defamatory statements are defamatory statements, and one should not post such statements relying on the belief that they will be shielded by the superficial protections of the otherwise faceless Internet. Simply put, what you wouldn’t say in public for fear of retribution, you shouldn’t post anonymously online. As the court noted, “it is overly broad to assert that anonymous speech, in and of itself, warrants constitutional protection.”
However, as the court outlines in its analysis above, the same scrutiny will be applied to determine whether the speech is protected by the 1st Amendment. While this post is not intended to explore available defenses to defamation lawsuits, and this author does not profess to have expansive knowledge regarding libel and slander cases, a few examples that come to mind include (1) whether the targeted individual is a public official or other notable public figure, such as a celebrity or professional athlete (2) whether the statement is true or (3) whether the public’s interest in freedom of expression outweighs the plaintiff’s interest in preserving his reputation.
As can be ascertained from the court’s opinion and from merely conducting an online search of the topic, other jurisdictions are having to establish precedence for this type of litigation as well. Dubbed “cyberlibel” by those on the World Wide Web , such cases appear to becoming more and more common. One interesting case that caught my attention was highlighted by the New York Times on their website. The case identified in the article involved a twenty-one year old college student named Just Kurtz who created an entire website devoted to lambasting a towing company for what he claims was an illegal tow. The towing company, T&J Towing retaliated by filing a defamation lawsuit, one which the New York Times cites some lawyers referring to as a “SLAPP” lawsuit, an acronym for “strategic lawsuit against public participation”. One might also refer to them simply as meritless or harassment lawsuits.
Again, the lesson to be learned is don’t post something on the internet anonymously that could possibly be considered defamation for fear of retribution from your target. Internet libel or “cyberlibel” is still libel, whether or not you are asking others to “pay no attention to that man behind the curtain”.
Filed under: General, Uncategorized by Terry Dodds
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