The Search Warrants and The First Amendment

Search warrants were executed, over the protests of counsel of Angie Funk to obtain a blood sample for DNA testing. That is the normal protocol for obtaining blood or serology samples in the process of criminal court proceedings. Nothing new and nothing sinister there. Other than the fact that Angie did attempt to block the testing.
The only thing "searched" was the blood sample. It was available for testing. That testing may or may not have been completed yet.

As for the First Amendment. It frustrates me to read articles, posts and questions where it is clear that the author doesn't truly understand the First Amendment.
As I posted before, it is not blanket protection for newspapers, magazines and now the web.
The First Amendment will protect you if you've done what you do, right, in the correct way. If not, it's not your saving grace.
Here is a great article I've found that will show that things are changing in this electronic age. Forum owners are being filed against and ordered to produce any records that will assist in identifying anonymous posters. Blogs and forums can be dissected and the authors held accountable to set of standards for libel.
Yes, opinion is protected. But if it goes further, and seems threatening or falls under other conditions, you can't hide behind the First Amendment. To sweep it all away with the brush of your hand just tells everyone that you have very little current knowledge as to the state of litigation in this area.

This article is long, so I apologize but take some time to read it. It covers groundbreaking actions! I have others and will post them also in a later post.

Please note that these are current actions!


Judge orders Web site to unmask anonymous posters in libel case


February 10, 2009 (Computerworld) The First Amendment protects the to libel someone, anonymously or otherwise.
A Texas circuit court judge served up a reminder of the amendment last week when she ordered an online news aggregation site to turn over any potentially identifying information it has on 178 people. They had anonymously posted allegedly defamatory comments on the site about two individuals involved in a sexual assault case.
Tarrant County District Court Judge Dana Womack served a subpoena to Topix.com. The company has until March 6 to comply with the order.
The order was issued in connection with a lawsuit that was filed by Mark and Rhonda Lesher (PDF document), a couple from Clarksville, Texas, who had been charged with, but recently acquitted of, sexually assaulting a woman.
Mark Lesher, a practicing attorney in Clarksville and Rhonda Lesher, who operates a beauty salon in the town, were accused last year of the crime against a former client of Mark Lesher.
The two were acquitted on all counts by a jury in Collin County in January after the case was moved in September 2008 to a new venue because of fears that the Leshers wouldn't get a fair trial in Red River County, where the case was originally heard.
Forums flare up
The complaint alleged that media reports about the case generated more than 25,000 comments -- many of them were anonymous and harshly critical of the couple -- on Topix.com's user forums. The allegedly offensive comments were present on more than 70 individual threats on Topix message boards of nearby Texas communities such as Clarksville, McKinney and Avery, the complaint noted.
The Leshers claimed that the comments were a form of persecution against them and that the anonymous posters had defamed them and tarnished their reputation, their standing in the community and their businesses.
The complaint added that before the case began, neither of the Leshers had any presence on Topix. It claimed that the Leshers were the "victims of a vicious cyberdefamation campaign" that was waged on Topix, and sought actual and other kinds of damages from the as yet unidentified posters of the messages.
William Pieratt Demond, a partner at Connor & Demond PLLC, a law firm in Austin that is representing the Leshers, said that the lawsuit was limited to the posters of only those statements that are arguably defamatory under Texas law.
The allegations in the anonymous postings in question "are so inflammatory and so horrendous under Texas law that no proof of damages is even required" to pursue the lawsuit, Demond said. "All we have to prove is that it was said and damages are presumed under the law."
Topix: We take privacy seriously
Topix CEO Chris Tolles said that his company had received the subpoena and was currently figuring out what exactly it needed to do. "We are not there yet, since it was a large request with lots of detail," Tolles said in an e-mail. "We prefer to make sure requests are clear and specific and not overly broad."
Tolles said that Topix takes privacy issues very seriously and that his firm would not "simply hand over all of our records" without a review of the demand by its lawyers and a discussion of the issue with the court.
At the same time, though, Tolles said libel was a legitimate concern, and that Topix will cooperate with the courts when a valid request for information was made. Topix is reviewing the subpoena to make sure the request is "above a reasonable threshold," he said.
Reminder: Anonymity is not immunity
The lawsuit serves as reminder that online anonymity does not automatically provide immunity against libel charges, said Eugene Volokh, professor of law at the University of California at Los Angeles' School of Law.
While the First Amendment provides protections for free speech, "not all categories of speech are protected, libel for instance," Volokh said.
"While people have the right to say things anonymously, if someone sues them of libel, then a court may order others to turn over information about them," Volokh said. "The First Amendment does not prevent the use of judicial processes to uncover the identities of speakers" in cases where libel is suspected.
It is not the first time a court has ordered a Web site or service provider to hand over identifying information on anonymous posters.
The most high-profile example involves two female Yale Law School students who were the targets of a similar flood of highly personal anonymous attacks posted on the AutoAdmit college bulletin board in 2005.
In January 2008, the students got a Connecticut district court judge to issue a subpoena asking the operator of AutoAdmit to hand over any information it had to help reveal the true identities of 39 posters who used pseudonyms on the board.
The subpoena resulted in the lawyers for the two students unmasking the identities of several of the anonymous users behind the postings.
In a blog post related to the case, Volokh noted that while some of the comments against the two students may well have been libelous, some of the statements could also be interpreted as threats of rape and other physical harm against the two.
In similar cases, such comments, whether anonymous or not, "may be constitutionally unprotected, and there would be no bar to tort liability for them," Volokh noted in the blog post.

A Call To Amy Rothermel, Esquire

After a few meetings this morning, I hope to speak with Amy Rothermel, Esq., Angie Funk's attorney this afternoon.
I took some time to process the latest happenings involving her client and the letter(s) that were sent. I haven't received one but would expect to, given my outspoken criticism of her client.
I would like to at least introduce myself to her via the phone and make my position known.
I have never seen any member of the Bar as an adversary and actually hold them in awe, given their education and expertise.
I fully appreciate my rights as protected by the First Amendment but I also fully understand an individual's rights to protection from invasion or privacy and stalking and well as libel.
Simply having to read an opinion posted that is negative or insulting isn't grounds for legal recourse. As I have learned, there is no law against having your feelings hurt LOL But there are laws against privacy invasion etc which I posted earlier.
If that were the case, I'd have a slam dunk in my pocket right now against the latest psycho babble I've read. Well, make that the babbling of a psycho lol
In any case, I have no problem discussing any of my blog posts with Ms. Rothermel. I am not "waxing indignant" should she send me a letter as well.
She is doing her job in protecting the rights of her client. And if at any time, my actions breach the law, I stand accountable.
I am a fan of accountability and autonomy.
I came across some legal findings in states other than PA so far, where a judge has ordered a forum owner to produce any and all documentation to assist in revealing the real and true identities of anonymous posters on the forums. There is more than one reference and although it's a slim chance that it will go that far, this attorney could want to be ground breaking in the state of PA.
To quote one attorney, "You are protected under the First Amendment if you are doing it right. If not, you are not."
I know that in the Salisbury, Maryland area a local politico, I believe it was, filed against a blogger for libel but I don't know the outcome of that lawsuit. I'll check it out and post that and some of the references I've found pertaining to libel in the forum setting and blogs in general.
Well, it's off to a few meetings and then hopefully I will be able to speak with Ms. Rothermel.
I hope I can be of some help to her. I know that I will be completely forthcoming at the very least!
But if any forum owner blindly believes that they will never be put in a position to produce any and all information that they possess to assist in the identification of anonymous posters, they have their head in the sand.
The First Amendment is not a shield. The times are changing.
I'll get those references posted about that when I get back later today!