Supreme Court findings on side of anonymous speech

If recent court rulings are any indication, the Lebanon School Board will face a tough challenge should it honor a request by the president of the local teachers' union to file a lawsuit to obtain the identity of a local blogger. Further, such a suit could be seen as violating laws designed to stop harassment of protected speech and leave the school district financial liable for the blogger's legal bills, according to one legal expert.

Lebanon Education Association president Kim Fandino, in a written complaint to school Superintendent Jim Robinson on Sept. 27, requested the district take action to identify the person or persons behind the Google-hosted blog known as Lebanon for Truth and Reconciliation. The blog has been critical of the school board and Fandino's role as union president since an Aug. 1 board decision putting Robinson on leave pending a performance investigation.

On Oct. 5, the Delaware Supreme Court reversed the decision of a state Superior Court judge ordering Comcast Cable Communications to identify an anonymous blogger over statements the blogger made about a town councilman's mental condition and sexual orientation.

Chief Justice Myron Steele wrote in his decision that the Internet is a "unique democratizing medium unlike anything that has come before," and compared blogs and chat rooms to political pamphleteering. Steele referenced a United States Supreme Court ruling that said, "anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent."

The New York Supreme Court ruled against a Lawrence, N.Y., school board member who had petitioned to learn the identity of an anonymous blogger who labeled her an anti-Semite and a bigot.

Mick Meagher, an Escondido, Calif., lawyer who specializes in First Amendment cases and speaks nationally on the subject, said an Oregon judge would probably look at those rulings to decide whether Google can be subpoenaed to identify the Lebanon Truth blogger.

"It's a fairly common practice of law for states to look at other states when they have little experience with a matter to see what they are thinking and the logic behind the decisions," Meagher said.

Meagher said that federal law protects Google from being sued. Typically, libel suits against bloggers are filed against Jane or John Doe 1 through 100 and then a subpoena is filed against the company hosting the blog to turn over identifying information, he said.

A spokesman for the Mountain View, Calif., based Google said the company is an advocate for privacy, and has a legal team that scrutinizes court orders and subpoenas to make sure they meet not only the letter but the spirit of the law.

"Last year we were the only search engine out of 34 who went to court to resist a Department of Justice subpoena for millions of search queries on the grounds that it was excessive and invaded our user's privacy. The judge ultimately ruled in Google's favor, establishing an important precedent for user privacy," the spokesman said in an e-mail.

Meagher said, in his opinion, a lawsuit against the Lebanon blogger would constitute a strategic lawsuit against public participation, known as SLAPP suits.

"It's a standard tactic to harass. This is all about intimidation. If you don't have a lot of money to defend yourself, a lawsuit is used as economic leverage to silence you," Meagher said.

Twenty-four states, including Oregon have anti-SLAPP statutes. If a judge decides a lawsuit against Lebanon Truth violates those statutes, the blogger would be entitled to recover legal fees.

"I've successfully defended against 16 SLAPP suits. Every time I win one, the other side pays me $40,000 to $50,000 for the privilege of filing a frivolous lawsuit," Meagher said.

A person needs to prove that they could win a defamation lawsuit without the discovery of the blogger's identity to avoid SLAPP penalties, Meagher said.

In her complaint, Fandino stated that the Linn County District Attorney's office reviewed the Lebanon Truth blog and said it did not meet the criminal harassment or cyber bullying standards and said she would need to take civil action to resolve the matter.

Robinson declined to pursue the matter on advice from the school district's attorney, Paul Dakopolis. Fandino then appealed to the school board. At the Nov. 5 board meeting, board members argued whether or not the district had the legal standing and responsibility to take action against the blogger. The board put off a decision until members can consult with Dakopolis later this month.