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
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:
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:
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:
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.
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:
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.
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:
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:
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:
In other words, the Circuit Court was not likely to second-guess its prior advice--and it didn’t.
Hat tip: Howard Bashman
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:
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.
The title of this post is not a misspelling--although it is admittedly a bad pun for those who saw Apollo 13.
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.
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.
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:
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:
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?
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.
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:
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 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:
Makes sense to me.
Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.
That fact may become obvious later on, but it needs to be said here anyway.
© Frederick H. Schranck 2002-2005