A month or so ago, I first wrote about the lawsuit Daily Kos is defending against dangerous anti-vaxxer Robert Kennedy, Jr., who is trying to force us to reveal the identity of a pseudonymous community writer who criticized his participation in a Berlin rally organized and attended by Nazis. To recap:
Kennedy isn’t content just spreading dangerous, life-threatening misinformation and lies. … Kennedy has sued Daily Kos to unmask the identity of a community diarist for writing a story attacking him for attending an anti-mask rally in Berlin that was heavily planned, promoted, and attended by Nazis. And Daily Kos lost the first legal round in court, thanks to a judge who is apparently unconcerned with First Amendment ramifications given the chilling effect of her ruling.
The full case history, and all filings, can be found here. Here is my affidavit expressing why it’s important for Daily Kos to protect the pseudonymity of its community, boiling down to this simple conclusion: “It is essential that Daily Kos take all efforts to ensure that a registered user may maintain anonymity. This is because some of the participants in our community would be subject to adverse treatment, for example in the workplace, and in some instances even physical harm to themselves and their family if their Daily Kos identity was revealed.” We take that seriously, which is why we’ve been fighting this case and will continue to do so.
We lost the first round in a New York court. Since that first story was written, we have appealed the decision to New York’s Appellate Division, Second Department, and requested a stay pending consideration of our appeal. That “stay motion” is being briefed in the next few weeks and should be decided by the New York Court in the early fall. In the meantime, we made an application for a temporary restraining order (a TRO) to put everything on hold while the court considers our stay motion. Surprisingly, the single appellate judge assigned to decide such things on that particular day made his decision in a matter of hours and denied our request.
To help fund our legal efforts against this dangerous, murderous conspiracy theorist, please click here.
While the denial of our request for a TRO was made without any written decision, it is apparent that New York law on protecting anonymous speech is well behind other states such as my home state of California. In New York, the courts have so far seen no harm in revealing the identity of an anonymous political commentator, because she or he can directly wage a traditional defamation defense against Kennedy. Therefore, supposedly, no free speech issues are affected.
The argument we are making in New York, and we hope to make new good law on this, is that anonymous political speech must be protected, especially against the likes of Kennedy who, by all accounts except his own, is waging this battle to bully and stifle the most vulnerable of his critics. Indeed, he hasn’t sued any of the news organizations that reported on his participation in a rally organized and attended by Nazis. He hasn’t sued me for repeating those claims.
This whole case exists because for whatever reason, perhaps even simple paranoia, Kennedy needs to know the identity of everyone who criticizes him on the internet. This case is about using the courts to dox a critic, nothing more, nothing less. And at least as of today, New York law simply refuses to see it. As our lawyer wrote in our appeals brief, this is a matter of first impression for New York Courts, and it is time for New York to adopt safeguards against the very doxing we are seeing here.
To be clear: there is zero chance Kennedy would win a traditional defamation case against the diarist. Zero. Not only is the community story in question 100% accurate and true, but even if it wasn’t, public figures have an impossibly high bar to meet in defamation cases. This is only about financially and legally punishing a critic, not about winning any defamation suit. I’d bet my firstborn that if Kennedy learned the identity of this writer, he’d never bother following up with an actual defamation lawsuit. It would be a fool’s errand, and he’s no fool. He’s evil and dangerous, but he’s no fool.
Anyway, following the New York court’s order, I received a subpoena at my home demanding I turn over all identifying information we have on this diarist. Yeah, that’s not happening anytime soon, if ever.
The fight has now shifted to California, where courts have already recognized the legal protections due to anonymous speech and the place where Kennedy has to try to enforce the subpoena. We now have a two-pronged fight on both coasts.
The great folks at Public Citizen have joined the fight on behalf of the diarist, providing pro-bono representation and asking California courts to quash the subpoena. You can read their petition here, filed jointly with the California Anti-SLAPP Project. (SLAPP stands for “strategic lawsuits against public participation”—lawsuits designed to silence critics who would otherwise be unable to afford to defend themselves.)
The core of their argument is that “the New York court did not address the question whether Kennedy’s showing was sufficient to overcome the First Amendment right to speak anonymously. Unlike California, no appellate court in New York has yet addressed the procedure and the showing needed to overcome the right to speak anonymously, and the New York court did not require Kennedy to provide evidence supporting a prima facie case of defamation. To the extent that the allegedly defamatory statements were not protected opinion, they were true or substantially true and there was no evidence of falsity or actual malice.”
In short, New York has no precedential case law on this point; California does, and since the subpoena was served on me in California, let’s apply Golden State law to the issue. Daily Kos’ lawyers will make a similar motion supporting the diarist’s efforts to quash.
Meanwhile, depending on how the California actions play out, we may file further appeals in New York courts. It would be nice to leave behind some controlling case law in the state protecting anonymous speech.
There are a lot of moving parts, and even more so now with the diarist legally engaged. Between the two of us, we have quite the legal A Team eager to hand Kennedy his ass.
Please help fund our legal efforts against this dangerous, murderous, conspiracy theorist, please click here. Also consider a donation to Public Citizen, for having the back of this community. They are a great ally to have in this fight.
