Sneaking Suspicions
Archives-- September 25-October 8, 2005

This page includes posts from September 25-October 8, 2005 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

October 7, 2005
Who’s cowardly now?

Although I’m not an anonymous blogger myself, I thought the Delaware Supreme Court’s recent blogger/defamation decision was well-considered and appropriate to the circumstances. 

I also didn’t have major legal or policy-based difficulties with the lower court decision, in which the plaintiffs were given a lower legal threshold to cross to force Comcast to provide the name of the anonymous blogger they were trying to sue. (Actually, in this case it was a poster to a newspaper’s comment site and not a blogger in the normal sense of that term, but I don’t consider the difference all that important for this situation).

Both decisions struck me as reasonable compromises between the interests of defamation plaintiffs, whose pleadings must meet good faith standards under Rule 11, and the interests of potential defendants who post under a nom de plume.

On balance, however, I think I prefer the Supreme Court’s heightened criterion for access to this information:

We conclude that the summary judgment standard is the appropriate test by which to strike the balance between a defamation plaintiff’s right to protect his reputation and a defendant’s right to exercise free speech anonymously. We accordingly hold that before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion….

In deciding a motion for summary judgment, “a trial court shall examine the factual record and make reasonable inferences therefrom in the light most favorable to the nonmoving party to determine if there is any dispute of material fact.” [note omitted]. “[I]f from the evidence produced there is a reasonable indication that a material fact is in dispute or if it appears desirable to inquire more thoroughly into the facts in order to clarify application of the law, summary judgment is not appropriate.” [citation note omitted]. Thus, to obtain discovery of an anonymous defendant’s identity under the summary judgment standard, a defamation plaintiff “must submit sufficient evidence to establish a prima facie case for each essential element of the claim in question.” [citation note omitted]. In other words, the defamation plaintiff, as the party bearing the burden of proof at trial, must introduce evidence creating a genuine issue of material fact for all elements of a defamation claim within the plaintiff’s control. [Emphasis in original].

That last point is important, at least for public figure plaintiffs such as the town councilman who brought this lawsuit. That’s because Delaware libel law also requires these folks to prove actual malice by the defendant; i.e., the libelous statement is published with knowledge of its falsity, or with reckless disregard for whether it was false. As the Court later noted, these plaintiffs won’t be forced to produce evidence to escape summary judgment for this last requirement.

In addition, the Court added a new requirement for the fact-gathering process prior to filing these suits:

[T]o the extent reasonably practicable under the circumstances, the plaintiff must undertake efforts to notify the anonymous poster that he is the subject of a subpoena or application for order of disclosure. The plaintiff must also withhold action to afford the anonymous defendant a reasonable opportunity to file and serve opposition to the discovery request. Moreover, when a case arises in the internet context, the plaintiff must post a message notifying the anonymous defendant of the plaintiff’s discovery request on the same message board where the allegedly defamatory statement was originally posted….

That’s not an impossible standard. In addition, as the Court also broadly hinted elsewhere in the opinion, in many cases the discovery request should also be accompanied by the prospective plaintiff’s own efforts to blunt the impact of the allegedly libelous remarks. That tactic might also have the beneficial result of producing a catharsis for the ruffled party, which could lessen the desire to sue for damages.

Self-help can take the form of self-expression, in other words, and might even be accepted as the best response to someone else’s attempt to hurt another.

I was also amused by the response of the state’s major newspaper to this decision.

In the course of applauding the result, the unsigned editorial noted that the criticisms that created the controversy were coarse and cowardly,” and further described the posts as “scurrilous.”

Without a hint of irony, the editorial writer went even further:

By hiding behind the Internet's anonymity, the author showed an utter lack of backbone.

I agree with the opinion writer, but also assume there were no mirrors in the room where this editorial was written. After all, the News-Journal editorial staff must themselves be a spineless lot--the paper rarely if ever discloses who writes the editorials.

Therefore, one might fairly ask, who's cowardly now?

In that respect, perhaps the Supreme Court was also quietly making a point to the state's newspapers, who are sometimes quick to take issue with the court's decisions in other cases.

After all, the old adage that one shouldn’t pick a fight with folks who buy their ink by the ton doesn't quite ring so true anymore--not when one can respond quite effectively with just a few thousand pixels.

October 5, 2005
Quickie movie review

Here's a sneak peek at the beginning of this week's upcoming golf column, which for the first time will also double as a movie review:

Movies about golf have a spotty history.

The last one I made any effort to see was “Tin Cup,” starring Kevin Costner and Rene Russo, and that was a few years ago. I made no effort to see any golf movie since that time, based on the mostly negative reviews they received.

This week the folks at Disney took their turn at the genre, and did surprisingly well. “The Greatest Game Ever Played” is receiving very good reviews from critics such as Roger Ebert, and it deserves them.

My bride and I went to see it last night, and both of us enjoyed it very much.

And only one of us plays golf.

October 3, 2005
Unlikely to second-guess its own advice

The Tenth Circuit Court of Appeals has now taken two opportunities to address the First Amendment implications of converting city streets into something a bit more private.

In 2002, the Court found that the government of Salt Lake City had not followed constitutional principles in a deal it struck with the Church of Latter Day Saints, in which the LDS took over a city street and made it into an ecclesiastical park. The city had reserved an easement through the park to preserve public access through it, but otherwise claimed that LDS had the right to block demonstrations or similar activities on the property under the terms of the deal.

As noted in a prior post here, the Circuit Court made short shrift of the argument that the ecclesiastical park was no longer a public forum for First Amendment purposes:

If it wants an easement, the City must permit speech on the easement. Otherwise, it must relinquish the easement so the parcel becomes entirely private….The City's attempt to create a public throughway but withhold speech rights on that throughway is ineffectual simply because the City has attempted to exercise power the First Amendment does not afford.

Salt Lake City and the LDS then revisited the deal, as discussed in another post here in June 2003. The city sold its remaining public easement to the LDS, in return for acreage elsewhere in the city, along with a community center. It retained a few utility accessways, and obtained a commitment from the LDS to maintain the area as a landscaped space.

Here’s what I suggested then about the utterly predictable claims by others who opposed this solution:

[I]f the only substantive change relating to the plaza was to take the hint given in the Tenth Circuit opinion quoted above, I don't think there's much chance of winning a new order killing the deal.

Governments have the authority to abandon or sell off rights-of-way, including sidewalks--even sidewalks that are popular places to preach about the evils of the Mormon Church, for example. The problem with the original deal was that the sidewalk remained a public forum, in that the city didn't give up all of its easement rights.

If there's nothing implicating the First Amendment about the other half of the agreement relating to the community center, therefore, I don't think the ACLU will take the case any further.

That organization doesn't like to file lawsuits it can't win.

As it turned out, I was wrong about the likelihood of litigation, but correct about the eventual result.

Today the Circuit Court affirmed the lower court’s dismissal of yet another case challenging the conversion of the public street into the private park.

The panel addressed and dismissed several distinct arguments raised by the coalition of plaintiffs, including issues relating to motive, public forum analysis, and free speech claims. Nonetheless, I think the following passage included the strongest rationale expressed by the Court to uphold the deal:

Secular purposes exist for the sale of the easement. First, the City was well compensated, receiving $5 million in exchange for an easement valued at $500,000. Second, the City was able to extricate itself from perceived entanglement with the Church and thereby reduce public outcry by eliminating joint ownership of the Plaza. Similarly, the City could reasonably conclude that if it were left with the responsibility of regulating protected expressive activities on the Plaza, this responsibility would likely result in litigation. [citation omitted]. Finally, in First Unitarian Church, this court specifically stated that  “[i]f it wants an easement, the City must permit speech on the easement. Otherwise, it must relinquish the easement so the parcel becomes entirely private.” 308 F.3d [1114,] at 1132. The City and Church could conclude that by choosing one of the options presented, each could avoid further litigation involving potential constitutional violations.

In other words, the Circuit Court was not likely to second-guess its prior advice--and it didn’t.

Hat tip: Howard Bashman

October 2, 2005
Making yourself interesting

The Washington Post ran an story today about a proposal to convert scrap from the old Woodrow Wilson Bridge across the Potomac River into an artificial reef.

If the costs of demolition and placement can be handled, this is a good idea that has worked well elsewhere.

For example, Delaware's Department of Natural Resources and Environmental Control has established eleven such sites, eight in Delaware Bay and three in the Atlantic Ocean.

DNREC's program description is pretty blunt about why the local sport-fishing industry and others think so highly of the notion of dumping old concrete, army tanks, and the occasional subway car into underwater piles:

Reef construction is especially important in the Mid-Atlantic Region, where near shore bottom is usually featureless sand or mud. We have neither the natural rocky outcrops common in New England or the coral reefs of our Southeastern Atlantic Coast. Durable, stable, non-toxic reef materials can develop an invertebrate community which is hundreds of times richer than adjacent bottom, providing food and physical protection for reef fish such as tautog, seabass, scup, spadefish and triggerfish. In addition, gamefish such as bluefish, striped bass and weakfish are attracted to baitfish, which congregate around reef structure.

Some folks might say that there's a whole lot of Delaware that could best be described as featureless, well beyond the underwater conditions of the Delaware Bay.

These people are cruel and should be ignored, even if their assessment may be viewed as objectively correct in some few instances.

In any event, there doesn't appear to be any harm in using some manmade materials to make yourself a bit more interesting, at least under these conditions.

This is one kind of recycling that most of us can support.

October 1, 2005
Huston, you don't have a problem

The title of this post is not a misspelling--although it is admittedly a bad pun for those who saw Apollo 13.

It refers to John Huston, a long-time PGA Tour player, who after two rounds this week found himself on top of the leaderboard in this week's event in Greensboro, North Carolina.

His timing is good, considering that he needs to finish in the top 125 money winners by the end of the season four weeks from now in order to keep his exempt status on Tour for next year. A late-season victory in 2003 gave him a two-year exemption, so another win or a few more high-ranking finishes will keep him among golf's elite. Right now, he's in 127th place in the season standings.

Huston's predicament is shared by several other Tour players, including some with a bit more name recognition among most golf fans. Duffy Waldorf, for example, is currently down at 151st, which is a bit out of character for him, considering he finished 46th last year. The Californian, known for his genial disposition and odd fashion sense while out on the course, was tied for 39th in Greensboro after his first 36 holes. Going low on the weekend is a requirement for Waldorf, from now through the season-ending tournament in Mississippi. That event, the Southern Farm Bureau Classic, was re-scheduled from its prior dates in early October because of Hurricane Katrina.

And why, you might ask, should anyone care about the struggles of professional golfers who play at the margins of eligibility at the end of each season? That's a very good question, and here's my answer.

Unlike other professional sports, with long-term guaranteed contracts that pay regardless of actual performance, the ranks of the professional tour are predominantly filled each year by players with no such assurances. Tournament winners are awarded exempt status for two or more years, depending on the event, but otherwise, it's up to the individual golfer to win enough money each year to earn the right to return to the tour in the next.

That brings a special kind of performance pressure to the touring pros who find themselves on the bubble in the closing weeks of each year's tour. I think this pressure is of a different kind entirely than the self-imposed pressure to play well that produces multiple-win seasons for the game's highest-ranked players, such as Tiger Woods and Vijay Singh.

When I watch these late-season tournaments, I look for signs that this pressure is having an effect on these players, such as the occasional squirrelly drive, or a putt that blows past the hole. Nonetheless, what I really enjoy watching is the sight of these golfers rising to the challenge and playing well enough to secure their card for the next season.

UPDATE:  Huston slipped a bit on the weekend, falling back to a tie for 17th. On the other hand, that pushed him up to 115th for the season, which should help insure his exempt status for next year. Waldorf improved his weekend play to reach a tie for 21st place. His winnings moved him up three spots, to 148th.

Go Duffmeister!

September 30, 2005
Bog books

I received my copy of a new book today from the folks at Amazon.

John Berendt's The City of Falling Angels is centered upon the famously waterlogged city of Venice, Italy. In light of current events here in this country, that makes Berendt's choice of subject matter remarkably prescient. I'm looking forward to reading it this weekend, and will let you know what I think of it.

The paperback edition of John Barry's Rising Tide: The Great Mississippi Flood of 1927 and How It Changed America that I ordered at the same time is somewhere in transit. Apparently there were a lot of similarly-minded readers out there, and we overwhelmed the pre-Katrina inventory.

For those interested in learning more about the Mississippi River and past efforts to control it, I also highly recommend John McPhee's The Control of Nature. The hardback edition I own came out in 1989, but as with most of McPhee's books, it's still readily available in paperback. The first segment is about the U.S. Corps of Engineers and its Atchafalaya Project, critical to the continued flow of the Mississippi River on its current path along New Orleans.

Note: Go here for an update on this post.

October 17, 2005
Update on bog books

September 28, 2005
Can I pick ‘em, or what?

Almost one year ago I posted a short piece about a Chancery Court lawsuit over a county government's rainy day fund that folks suggested was simply too big.

Considering the typical hand-to-mouth existence of most jurisdictions, the fact that these plaintiffs were upset about a large surplus made it just a tad unusual, compared to most taxpayer lawsuits.

Among other relief, the complaint sought to block the issuance of $80 million in bonds that the government of New Castle County sought to sell. Their point was that the then-County administration had squirreled away nearly a quarter-billion dollars of surplus revenue. As they saw it, the County had no business going deeper into debt while it stuffed cash into reserve accounts that was five times over the statutory limit set by county ordinance.  In addition, the plaintiffs sought to force a refund of the excess cash back to the folks who paid it.

Here’s what I said about the suit back then:

I won’t prejudge the merits of the case. On the other hand, I also wouldn’t be surprised if a legislative reaction to its allegations is enacted before a final judgment is reached.

Earlier this year, Chancellor William Chandler issued a preliminary decision in the case, in an opinion I discussed here:

He ruled for the plaintiffs on the fundamental issue in the case, deciding that the county ordinance requiring that surplus funds “shall be equal to” 20% of two primary county budget accounts meant “shall be equal to,” not “shall be not less than.” His decision invalidated the current County budget, forcing the newly installed County Executive and County Council to deal with the consequences of their predecessor’s errors in judgment.

They took the hint.

After receiving public comment, including objections from at least one of the plaintiffs in this case, this spring the County Council adopted and the new County Executive signed two new ordinances dealing with these surpluses.

The first ordinance set up two new reserve accounts, both of which were notably without any ceilings on the funds that could be stashed there. The second ordinance amended the current year’s budget to appropriate all of the formerly “off-budget” reserve funds, and directed the old surpluses into the new reserve accounts. 

Undaunted, the taxpayer plaintiffs pressed on, gaining permission to file amended complaints attacking the legislative end-run around their preliminary victory.

This week Chancellor Chandler ruled in favor of the County, and dismissed the suit in its entirety. Although the plaintiffs raised several different arguments of varying degrees of persuasiveness, I think one portion of the Chancellor’s response best expressed the Court’s reasons to bring the litigation to a close:

The issue was resolved: if the County was to maintain reserve accounts it needed to comply with the fundamental principles of the separation of powers and its own laws. I then instructed the County how to come into compliance with the law: amend the existing code or adopt new legislation. This is what the County did. Plaintiffs cannot now challenge the ultimate authority of the County to maintain reserves. The true nature of plaintiffs’ claims takes issue with the political decision of the County to maintain a specified amount of money, which plaintiffs consider to be too large. This may indeed be a legitimate contention, but it is a political contention that must be answered at the polls and not through the Courts.

In addition to being the correct result, the Chancellor's ruling just happens to dovetail nicely with my original prediction.

Can I pick ‘em, or what?

September 28, 2005
Don't forget it's harvest time

Just a short note to remind you all that over the next few weeks, several downstate Delaware farmers will be busy harvesting their organically-grown marshmallows.

That's some kind of good eating, y'know.

September 26, 2005
Where do the spoils stop?

The spoils system of political appointment and dismissal has a history at least as long as this country’s current constitutional system of governance—probably dating back to the opening weeks of the original administration of George Washington, with the selection of the first Customs House official.

Patronage as the basis for government appointments is unlikely to ever disappear, but in the last few decades the courts severely limited its scope, by upholding the civil rights of some of those who do not quietly accept their political termination.

The most recent exposition of the legal pitfalls for elected officials seeking to fill these slots (and those seeking to avoid dismissal from them) issued late last week, in a wry opinion authored by Seventh Circuit Judge Richard Posner.

Given the long history of patronage throughout Illinois in general and Chicago in particular, it’s only natural that Posner’s opinion for the unanimous panel is as politically savvy as this one is.

The circuit court dealt with two assistant wardens in the Illinois correctional system. In one case the judge upheld the challenge brought by the office holder, kicked out by Governor Blagojevich. In the other case a different U.S. District judge upheld a dismissal by the same governor, and so the panel was looking at two completely opposite results for what was essentially the same job.

Posner first noted past Supreme Court precedent that upheld the First Amendment rights of government workers who do not hold policymaking or confidential positions. For these folks there is no rational basis to permit political affiliation to be a valid job requirement.

The real problem begins after one accepts that legal framework, in order to decide who the politicians can select:

Identifying those jobs is no mean feat.

Almost all jobs in government above the lowest levels require the holder of the job to exercise at least a modicum of discretion; and discretion exercised by a subordinate, invisible to the public, who is a political enemy of the elected officials who are blamed when things go wrong can undermine the officials’ programs (often just by passive resistance) and by doing so thwart democratic preference.

Using a lengthy chart of the circuit case law on this subject, Posner then shows how arbitrary these policymaking/confidential distinctions may become in practice. He then describes the legal problem in very practical terms:

The uncertainty in the case law demonstrated in our table … creates a dilemma for elected officials such as the Governor of Illinois. How is he to know, when he takes office, whom he can fire and replace with loyalists, and whom not? Must he go behind the job descriptions and conduct an investigation into the actual duties performed by all the state employees who might be deemed policymaking or confidential employees, under pain of having to pay damages if a jury disagrees with the results of his inquiry?

To what extent can he rely on the doctrine of qualified immunity to shield him from the consequences of such a disagreement? “Public officials need not predict, at their financial peril, how constitutional uncertainties will be resolved.” [citation omitted].


Incoming political leaders should be enabled to discover without protracted inquiry which jobs they can fill. Furthermore, “a new administration should not be overly hamstrung in filling key positions with loyal employees simply because of the way the prior administration operated.” [citation omitted]. Nor would it be sensible to give employees who are assigned policy duties an incentive to try to protect their jobs simply by not performing those duties.

The judge then goes through the facts relating to these two wardens. The formal job descriptions showed that these employees were left unprotected from the ravages of the last election, at least as a matter of federal civil rights law, and the remaining evidence in the record supported that conclusion.

Nonetheless, Posner also readily admits that the courts should not rely upon official job descriptions that do not match reality. Instead, he briefly suggests applying an analytical test to guide the court and the litigants, which should help avoid protracted litigation:

The significance of the official job description in a case like this is thus as a provisional safe harbor for elected officials. If the official job description is objective, as shown by the methods by which it is created, vetted, and updated to the present, then the elected officials can rely on it in deciding whom they can replace on political grounds.

Makes sense to me.


Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969


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© Frederick H. Schranck 2002-2005