April 4, 2011
Rabbi Cannot Unmask Anonymous Bloggers in Sexual Abuse Defamation Suit, Public Citizen Tells Court
Rabbi Has Not Proven Statements Were False or Met Criteria to Disclose Critics’ Identities
WASHINGTON, D.C. – An Orthodox rabbi ousted from his congregation because of allegations of sexual abuse posted anonymously online should not be able to unmask his critics, Public Citizen said in a brief filed in the Supreme Court of New York for Rockland County today.
Not only has the statute of limitations for defamation long since expired, but Rabbi Mordechai Tendler has not even provided evidence that the statements made were false, the brief said. Additionally, nothing has been posted about Tendler on these blogs in years; several of the blogs have been inactive since 2006.
Yet the rabbi seeks to identify the operators of five blogs devoted to issues of sexual and similar abuses by rabbis and other authority figures of the Orthodox Jewish community: www.jewishsurvivors.blogspot.com, www.jewishwhistleblowers.blogspot.com, www.newhempsteadnews.blogspot.com, www.rabbinicintegrity.blogspot.com and www.knhmember.blogspot.com.
To do so, in mid-February he subpoenaed California-based Google, Inc., which owns and operates Blogspot.
“Tendler is likely trying to identify the bloggers to better pursue his claim for damages against the synagogue that fired him over his treatment of female congregants, but he has failed miserably to meet the legal test for identifying anonymous posters,” said Paul Alan Levy, a Public Citizen attorney representing the bloggers.
To reveal the bloggers’ identity, Tendler should have notified the bloggers before issuing a subpoena, showed that their identities were needed to prove a key claim or disprove a key defense in the case, and showed that he had exhausted all the other ways of proving or disproving those key issues. Only that way could he prove that the potential harm he faces from not knowing who the bloggers were outweighs the bloggers’ First Amendment rights. Tendler has met none of these requirements, Levy said.
This was not Tendler’s first time attempting to identify these bloggers. In 2006, he filed a petition in an Ohio court alleging that there were false and defamatory statements on three of the blogs – but did not specify what any of the statements were. He then sent subpoenas to Google, which notified the bloggers, but Tendler himself had not notified them. When the bloggers countered with an anti-SLAPP (strategic lawsuit against public participation) motion, Tendler backed down. Public Citizen and San Francisco-based Electronic Frontier Foundation assisted the bloggers with the anti-SLAPP suit.
This time, Tendler still has failed to notify the bloggers of the subpoena, and Google’s attempt to do so failed because the contact information used to set up the blogs was old.
The subpoena should be quashed for two separate but related reasons, Levy said. First, under New York law, the subpoena should have included Tendler’s explanation of why the discovery is needed; second, the subpoena infringes upon the bloggers’ First Amendment right to speak anonymously.
“Making it too easy to remove the cloak of anonymity of online users will deprive the marketplace of valuable contributions,” Levy said. “And in this case, given the close-knit nature of the Orthodox community, the bloggers are particularly susceptible to consequences from being publicly identified by Mordechai Tendler.”
Public Citizen is a national, nonprofit consumer advocacy organization based in Washington, D.C. For more information, please visit www.citizen.org.