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School Board Member Gets a Lesson in First Amendment Rights

Oct. 25, 2007

School Board Member Gets a Lesson in First Amendment Rights

Petition to Identify Anonymous Blogger Dismissed in Public Citizen Victory

WASHINGTON, D.C. – In a big win for the First Amendment rights of bloggers, New York Supreme Court Justice Marcy Friedman late yesterday upheld the right to speak anonymously and dismissed a petition by a Lawrence, N.Y. school board member to identify an anonymous blogger. 

Upholding arguments made by Public Citizen, which represented the blogger, the court decided that the statements on the “Orthomom” blog were not actionable, in some respects because statements were opinion and in others because the statements were true. The ruling applied a balancing test that protects the right to speak anonymously online so long as the speech does not violate the plaintiff’s rights. Public Citizen established the test in a landmark 2001 New Jersey appellate decision, Dendrite International v. Doe.

The plaintiff, Pamela Greenbaum of Lawrence, N.Y., sought a court order requiring Google, which hosts the blog, to reveal Orthomom’s identity. The petition asserts that the blogger Orthomom, and others who posted comments on her blog, had accused Greenbaum of being a bigot and implied that she was anti-Semitic because of her position against using public school facilities and teachers for educational services that benefit children attending private religious schools.

Friedman, however, ruled that Orthomon’s discussion of Greenbaum’s votes were not implicit accusations of anti-Semitism, and that the comments posted by others who did use those words were only expressing their opinions, which cannot be the basis for a libel suit. The court agreed that an accusation of perjury can be defamatory but rejected the petition based on evidence that Orthomom’s claim that Greenbaum was making false statements was “incontrovertibly true.”  

Because Greenbaum’s petition was so clearly lacking in merit, Friedman found it unnecessary to decide whether to adopt the Dendrite approach in its entirety, but described it as “persuasive authority.”

“This decision echoes the emerging national consensus approach to protecting anonymous speech online,” said Paul Alan Levy, lead counsel for Orthomom.

Local counsel for Orthomom is Donald Rosenthal of Hartman and Craven in New York.

READ the decision.