Categories
linked down

Citizen Media Law Project covers IEHI’s New Hampshire Case

http://www.citmedialaw.or…0-what-have-you

Many of you may not be aware of this, but my company IEHI, Inc. (I.e. the Mortgage Lender Implode-O-Meter) is involved in two lawsuits. Both are absurd in their own right and work to stifle whistleblowing activities. Both have cost our company a great deal of time and money to defend (And the lawsuits are ongoing).

I won’t go into the details of these cases here, but if you want to know more:

Our primary website ml-implode.com is a thorn in the side for many because it takes a sardonic view of the imploding mortgage industry. Ever since the site was founded, way back before most of us had even heard of “subprime,” ML-Implode has broken big news that has made CEOs cringe, often alerting employees to their own company’s impending demise before their managers had bellied up and let the cat out of the bag (a.k.a. “I’m sorry, but we’re all out of a job.”). As distasteful as this function may be to some, we side on getting quality information out as soon as possible so that people can make informed decisions. Sometimes that pisses people off. We do not do it lightly.

As it is, the financial implosion genie has long since escaped the bottle. It’s common knowledge that the world is in a recessioin/depression/stagflation/OMG!WTF!/YGTBFKM! situation, so the fact that a start-up financial news site is getting hammered on by lawsuits has been largely ignored. Fortunately, with the recent Goldman Sachs suing of blogger Mike Morgan and articles like the one from Citizen Media Law Project (excerpted below – read it in full!), there may be a glimmer of hope.

I’m posting all of these thoughts on my personal blog to spread the word that just as we are being sued for not shutting up, your free speech is being attacked. Financial considerations aside, simply being aware of these attacks is important to you. The Internet has made way for little guys to be heard; unfortunately, little guys are still squashed by the big companies who have thousands of dollars to throw at legal fees all in an effort to stifle criticism. First amendment rights are fantastic in theory, but if the rubber doesn’t meet the road in cases like ours, anyone who posts material on the internet (And with Facebook, Twitter, millions of forums and blogs, who doesn’t?) is susceptible to losing everything they’ve worked for to frivolous lawsuits funded by deep pockets (The very deep pockets used to lobby the government for bailout funds or new legal loopholes to exploit).

So take note, and spread the word. Thanks. And here’s The Citizen Media Law Project’s take on our New Hampshire case (which we are appealing):

A reader recently tipped us off to a troubling ruling from a trial court in New Hampshire: The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., No. 08-E-0572 (N.H. Super. Ct. Mar. 11, 2009). In the decision, Justice McHugh of the Superior Court for Rockingham County ordered the publishers of the popular mortgage industry watchdog site, The Mortgage Lender Implode-O-Meter (“ML-Implode”), to turn over the identity of an anonymous source who provided ML-Implode with a copy of a financial document prepared by The Mortgage Specialists, Inc. for submission to the New Hampshire Banking Department. The court also ordered ML-Implode to reveal the identity of an anonymous commenter who allegedly posted defamatory statements about the company and enjoined the website from re-posting the financial document or the allegedly defamatory comments. …

Justice McHugh’s March ruling granted all of the requested relief. He issued an order: (1) prohibiting ML-Implode and its agents from “displaying, posting, publishing, distributing, linking to, [or disseminating] copies and/or images of [the] 2007 Loan Chart and any information or data contained therein”; (2) requiring ML-Implode to “disclose the identity of the individual and/or entity that provided it with the 2007 Loan Chart”; (3) requiring ML-Implode to produce all other documents concerning MSI that ML-Implode received from the source of the 2007 Loan Chart; (4) prohibiting ML-Implode from re-posting the “Brianbattersby” statements; and (5) requiring ML-Implode to disclose the identity of “Brianbattersby.”

Justice McHugh’s decision is troubling on so many levels that it is hard to even list them all, but I will start with its blasé attitude towards the whole matter. The court issued no detailed findings of fact or conclusions of law before issuing the injunction, held no evidentiary hearing (apparently the parties agreed to this), and failed to even specify what cause of action supported its decision to enjoin publication of the 2007 Loan Chart. This latter point is by no means clear, because N.H. Rev. Stat. Ann. § 383:10-b looks like it creates no private right of action against non-government parties like ML-Implode. The court apparently regarded all this formality as unnecessary because MSI sought only injunctive relief not damages, but this is obviously incorrect.

But wait, it gets worse. In its filings with the court, ML-Implode argued extensively that the requested relief constituted an unconstitutional prior restraint on speech, sought information protected by New Hampshire’s qualified reporter’s privilege, and impinged on its users’ First Amendment rights to speak anonymously. The court brushed aside all of these arguments without anything I would characterize as legal analysis. Justice McHugh did not even address whether the New Hampshire reporter’s privilege, which was recognized by the New Hampshire Supreme Court in Opinion of the Justices, 373 A.2d 644 (N.H. 1977), applies to online journalism sites like ML-Implode, and, if so, whether MSI had made the showing needed to overcome the privilege. …

With respect to the allegedly defamatory forum comments, Justice McHugh failed to make any specific findings of fact regarding actual malice, falsity, or reputational harm, so it is hard to accept his ruling as a “final adjudication on the merits” that would justify injunctive relief. Moreover, the court failed to explain why MSI could circumvent the hoary principle that “equity will not enjoin a libel” simply by not asking for damages, and why section 230 of the Communications Decency Act did not block MSI’s claims for injunctive relief with respect to user-submitted content (not an uncontroversial proposition).

Justice McHugh’s opinion is also oblivious to the U.S. Supreme Court’s decision in Bartnicki v. Vopper, 532 U.S. 514 (2001), which casts serious doubt on the constitutionality of punishing the dissemination of truthful material relevant to a matter of public concern when the publisher (as opposed to the source) obtained the information in a lawful manner. True, Bartnicki addressed the constitutionality of imposing money damages for the publication of truthful speech, but enjoining truthful speech seems equally inconsistent with protecting our “‘profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.'” 532 U.S. at 534 (quoting New York Times v. Sullivan, 376 U.S. 254, 270 (1964)).

Instead of tackling all these difficult legal issues, Justice McHugh’s decision focuses its attention elsewhere. Throughout, it appears motivated by a conviction that MSI is not asking for anything unreasonable and that ML-Implode is not being very nice:

Then when [ML-Implode] was asked to disclose the identity of persons or entities that had provided it with unauthorized information and potentially defamatory information [ML-Implode] refused outright. One would have hoped that when a legitimate publisher of information was notified of the fact that certain unauthorized information was given to it which was then published, presumably in good faith, the publisher would, in order to maintain the integrity of its publication, willingly provide the wronged party with the information requested. Instead, [ML-Implode] exhibited a knee-jerk reaction.

This is not a view shared by publishers (big, small, offline, online) or by the law. Counsel for ML-Implode intends to appeal the judgment to the New Hampshire Supreme Court, and there is good reason to believe that the state’s high court will reverse. For now, the decision stands as an excellent example of why we need strong procedural safeguards for courts to follow when deciding whether or not to compel the identification of anonymous speakers, why shield laws that constrain judicial discretion are important, and why constitutional doctrine should limit judicial power to grant prior restraints to such a vanishingly small category of cases.

Categories
linked down

President Chuck Norris, of Sovereign Texas?

http://www.worldnetdaily….ew&pageId=91103

chuck
Creative Commons License photo credit: cloune

Now this is just all sorts of awesomeness not because it is likely to happen (I’m skeptical), but because it puts pressure on the Feds to behave. Apparently, Chuck “When I do a push-up I push the world down” Norris quipped recently on The Glenn Beck show that he may run for President of Texas. Even said in jest, something like this has to have been contemplated or at least joked about by Chuck Norris before in order for it to just sorta come out on national television. And based on Chuck’s recent write-up (the link), he’s clearly thought a great deal about the notion of Texas reasserting itself as a sovereign nation.

Time to move to Texas? I hear Austin is a great place to live.

Chuck is far too religiously minded for comfort, but then again, so is Ron Paul (and mind you it gave me similar pause there, as well). I’m far more worried about acolytes of the State than conservative Christians these days though. It’s also encouraging to hear someone mainstream (As Patri noted) seriously discuss the notion of secession. As I see it, it’d only take one state to break the Union before others would follow. The “United” States is so overrated — why don’t more people see that?

Here’s would-be President Norris:

When I appeared on Glenn Beck’s radio show, he told me that someone had asked him, “Do you really believe that there is going to be trouble in the future?” And he answered, “If this country starts to spiral out of control and Mexico melts down or whatever, if it really starts to spiral out of control, before America allows a country to become a totalitarian country (which it would have under I think the Republicans as well in this situation; they were taking us to the same place, just slower), Americans won’t stand for it. There will be parts of the country that will rise up.” Then Glenn asked me and his listening audience, “And where’s that going to come from?” He answered his own question, “Texas, it’s going to come from Texas. Do you agree with that Chuck?” I replied, “Oh yeah!” Definitely.

It was these types of thoughts that led me to utter the tongue-n-cheek frustration on Glenn Beck’s radio show, “I may run for president of Texas!”

I’m not saying that other states won’t muster the gumption to stand and secede, but Texas has the history to prove it. As most know, Texas was its own country before it joined the Union as its 28th state. From 1836 to 1846, Texas was its own Republic. Washington-on-the-Brazos (river) served as our Philadelphia, Pa. It was there, on March 2, 1836, where a band of patriots forged the Texas Declaration of Independence. (We just celebrated these dates last week.)

On March 1, 1845, then-President John Tyler signed a congressional bill annexing the Republic of Texas. Though the annexation resolution never explicitly granted Texas the right to secede from the Union (as is often reported), many (including me) hold that it is implied by its unique autonomy and history, as well as the unusual provision in the resolution that gave Texas the right to divide into as many as five states. Both the original (1836) and the current (1876) Texas Constitutions also declare that “All political power is inherent in the people. … they have at all times the inalienable right to alter their government in such manner as they might think proper.”

Anyone who has been around Texas for any length of time knows exactly what we’d do if the going got rough in America. Let there be no doubt about that. As Sam Houston once said, “Texas has yet to learn submission to any oppression, come from what source it may.”

By the way, I actually didn’t know the Texas Republic history. I probably learned it in some social studies class but subsequently forgot all about it. Neat.