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Monday, June 02, 2003  

The docket:
Prior restraint, angry blogging and poor taste

My blog son* Prometheus 6 has brought my attention to an article in Monday's New York Times that is chock full of the kind of stuff the Diva loves to write about -- the legal issue of prior restraint, blog as punching bag, posturing by bloggers and ego crazed people promoting themselves as symbols of this, that and the other.

You will recall I wrote a recent entry about anger as a motivation for some bloggers. Their bloggery is a reflection of their inability to handle their heavy load of frustration, angst and hatred. I used Sam, an embittered woman with a pathetic excuse for a blog, as one of my examples. Despite having existed longer than Mac-a-ro-nies, her blog boasts a seventh of this blog's traffic and had two incoming links until Mac-a-ro-nies linked to her. Her anger has clearly driven would-be readers away from her blog. The article in the NYT offers a successful version of Sam for our examination.

Tucker Max's site promotes something like the opposite of character education. It contains a form through which women can apply for a date with him, pictures of his former girlfriends and reports on what Mr. Max calls his "belligerence and debauchery."

Among the women exploited on Max's site is a former Miss Vermont, Katy Johnson. She has a blog on which she promotes abstinence and wholesomeness.

The lawsuit the piece is about arose because Max described, at length, drinking, partying and having sex with Johnson.

Until a Florida judge issued an unusual order last month, Mr. Max's site also contained a long account of his relationship with Ms. Johnson, whom he portrayed, according to court papers, as vapid, promiscuous and an unlikely candidate for membership in the Sobriety Society.

For purposes of the lawsuit, it is stipulated Johnson is not saying the allegations are false. The court ruled in her favor May 6, ordering Max to stop linking to her site and to cease writing about her.

The order, entered by Judge Diana Lewis of Circuit Court in West Palm Beach, forbids Mr. Max to write about Ms. Johnson. It has alarmed experts in First Amendment law, who say that such orders prohibiting future publication, prior restraints, are essentially unknown in American law. Moreover, they say, claims like Ms. Johnson's, for invasion of privacy, have almost never been considered enough to justify prior restraints.

Ms. Johnson's lawsuit also highlights some shifting legal distinctions in the Internet era, between private matters and public ones and between speech and property.

The issue of prior restraint usually arises in regard to political news and the government. It captures the tension that should exist between the two areas. A government agency will attempt to prevent a medium from publishing information it deems harmful for some reason and the medium, usually a newspaper, will resist. The government has an interest in suppressing information that casts it in a negative light. The media has a conflicting interest in serving as the Fourth Estate by telling readers, listeners and viewers what is really going on in government. Usually, conflicts between individuals are fought on the legal turf of slander or intentional infliction of emotional harm. However, the mud wrestling between Max and Johnson has been elevated to the same level as conflicts between the media and government.

Megan at Page Three has described her objection to prior restraints by analogy.

Laws exist in some states that require drivers to wear a seatbelt while operating an automobile. You have to wear the seatbelt all the time, because there is always the possibility that an accident might occur and you would want to the seatbelt to protect you in that situation.

Speaking is not the same as driving a car. Our government cannot effectively put a "restraint" on someone's speech before they express themselves. In this situation, the accident actually has to happen because we know the dangers of restricting speech are much worse than dealing with the consequences of free speech.

Her example captures much of the problem with Johnson v. Max. The court has assumed that the negative consequences of allowing Max to publish unflattering information about Johnson are greater than the positive or neutral consequences of allowing the speech. That is not necessarily so. The scurrilous allegations may actually increase traffic to her site. Furthermore, as a site owner herself, Johnson has ample opportunity to refute Max's claims and/or publish equally unflattering information about him. My guess is that if the court had not intervened, the two would have continued mud wrestling until readers lost interest and then moved on. No great harm would have been done. So, the prior restraint is not justified.

However, I disagree with Megan's subsequent remarks in her entry. She asserts that a statute against cross burning is a prior restraint because such matters should be prosecuted "under arson or trespassing laws." That reasoning ignores the fact the harm from cross burning goes beyond damage to property or someone setting foot where he is not wanted. The goal of cross burning is terrorism. The targets of the activity are being sent a message that other violent acts await them if they don't tailor their behavior to suit the desires of white supremacists.

I believe the Supreme Court's ruling in Black v. Virginia, 01-1107 (2003) is correct. It ruled that cross burning is to be considered more likely to be prima facie evidence of racial animus than other expressive activities, while not allowing banning of cross burning per se. Nathan Newman explained the complex ruling in an entry on the topic.

The main plurality took a position that "instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence." The state need not penalize all possibly intimidating speech to reach a form of symbolic speech that is tied to such a uniquely corrosive history in the US.

The conduct being precluded in Johnson v. Max basically consists of the exercise of poor taste. The conduct subjected to a rebuttable presumption in Virginia v. Black is terroristic threats. It is important not to confuse the two because the implications of the latter are much more serious.

I think either the judge in the Johnson v. Max case will reverse herself upon further reading or that the injunctive relief she granted Max will be overtuned by a higher court. Ultimately, new legal theories may be developed to analyze behaviors at web sites and blogs. But, in my opinion, prior restraints should remain the bailiwick of government and the media. Most of the offensive behavior on the Internet does not rise to the level even the suppression of a news article about a small fire at the county jail does. Such a minor event has implications for society, at least in the city where it occurs. Whether Katy Johnson did or did not dance topless on a table at Hooter's does not.

Note:*'Blog son'? you say, raising a brow. Yes, this barely toddling blog already has offspring. Mac-a-ro-nies must be promiscuous.

6:11 PM