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'Blogger trial of century' produces pro-journalist ruling

Rest easy, Hennepin County bloggers — comments on your site won’t get you into legal trouble (unless you wrote them yourself).

That’s the upshot of a key ruling by Hennepin District Judge Denise Reilly Tuesday in blogger John “Johnny Northside” Hoff’s trial. Former University of Minnesota contractor Jerry Moore has sued Hoff for defamation and tortious interference with a contract; Moore lost his U job after Hoff blogged the contractor was “involved in mortgage fraud” while working for a north Minneapolis neighborhood group.

For local bloggers, the truth of Moore’s allegation is secondary to his lawyer assertion that an anonymous comment urging readers to “write to the Board of Regents” made Hoff liable. Although the 1996 Communications Decency Act (CDA) protects bloggers who host comments, there’s not a lot of case law. Had Reilly ruled against Hoff, journalists of any stripe would face a lot more risk.

Instead, the judge decided Hoff could not be held liable for anything he did not write. (For law nerds, she cited Section 230, provisions c1 and e3.)

The blustery Hoff has called the case "the blogger trial of the century"; his volunteer lawyer, Paul Godfread, says the ruling reaffirms journalist protections, regardless of whether comments are posted automatically, moderated or even edited. Though there are exceptions for certain federal criminal and intellectual property standards, they are limited, Godfread contends.

The ruling raises the bar for Moore and his attorney, Jill Clark, who declined to discuss the ruling. Reilly has already ruled Moore is a “limited purpose public figure,” which means Hoff can only defame Moore if the blogger showed a “reckless disregard for the truth.”

In court Tuesday morning, Clark began to do just that, contending that Hoff knew that Moore had denied submitting a $5,000 invoice for a North Minneapolis project allegedly embroiled in mortgage fraud. Hoff noted afterward that he had reported the denial in an earlier blog post.

Clark also built the case that Hoff posted the anonymous comment to his own blog.  The evidence was … interesting. It came from Donald Allen, a former Hoff ally and former defendant in the case who is now testifying for Moore.

Allen contended that he could recognize Hoff’s wording in the comment; Hoff has denied authoring it. Allen not only told Clark he had written anonymous comments to his own blogs, but  “all bloggers do that to start a conversation.”

Speaking strictly for myself, I don’t and never have — and I’m betting many other bloggers have successfully resisted the deceptive ploy.

While Hoff may have a more knowledgeable intellectual property attorney, Moore clearly has the more experienced trial lawyer. On redirect, Godfread failed to grill Allen about his educated guess linking Hoff to the anonymous comment and failed to dispute the questionable “all bloggers do it” premise.

When Godfread attempted to undermine Allen’s anonymous-comment contention later in the witness’s testimony, Clark objected and Reilly sided with her.

Less bound by legal niceties, I asked Allen after his testimony how exactly he knew “all bloggers” misrepresented self-written comments as anonymous.

He backpedaled, saying: “A lot of bloggers do it; I’m a student of African-American blogs like AOL Black Voices. For example, I’m a committed black Republican. I might write ‘Obama hasn’t addressed this issue,’ then write a comment that’s anonymous also saying Obama hasn’t addressed the issue.”

As for how he could testify under oath that Hoff had authored the following anonymous comment:

I suggest we all write to the Board of Regents — they can be reached right here

Be sure to include printed pages of blogs, news articles and other documentation of the type of quality leader that Mr Moore exemplifies.

Allen said that final sentence “sounds like something that came right out of his mouth.”

Speculation? Perhaps, though at this point the seven-person non-blogger jury may not have a clue.  When I noted Hoff’s lawyer had missed a couple of opportunities when Allen was on the stand, the just-excused witness replied with a chuckle, “That attorney is a rookie.” 

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Comments (12)

David - you should consider renting yourself out as a consultant to attorneys.

For the record, "Rob Levine" is not me! (This is obvious to anyone who knows both of us ...)

I appreciate Hoff's pushing this into the courts to provide legal precedent but I do not at all appreciate his assertion that "all bloggers" do something.

The pro-journalist ruling is important to everyone, including bloggers. This case is highly unusual based on the facts the defendant is being manipulated by a political infrastructure that basically says, "Get em Johnny."

Other than that, this story was one of the best, fair and comprehensive reports on the news. (Maybe you folks should start a daily - I think someone will go out of business real fast.)

Best in success!

I think if I were Moore I would be more offended by being labeled a "limited purpose public figure." That sounds like a lot of politicians I know.

Again, Denise Reilly impresses with her discernment. (You MinnPosters surely remember her, right?)

She's got to be on a short list for the MN Supreme Court should a vacancy appear. If only all our public servants possessed her abilities!

I think Allen is telling us more about his own integrity than he is about bloggers. His example, say something, then pretend be someone else saying the same thing and agreeing, is a strange way to start a conversation, more like starting an echo under false pretense. The assumption that everyone else it doing it is typical. I don't know how many bloggers do it, but it strikes me as hinky and dishonest.

I was not present in the courtroom, but even if I were, I would be careful about questioning the competence of the defense attorney. He might be satisfied with the answer. Here are Irving Younger's Ten Commandments of Cross Examination:

# Be brief.
# Short questions, plain words.
# Always ask leading questions.
# Don't ask a question to which you do not know the answer.
# Listen to the witness' answers.
# Don't quarrel with the witness.
# Don't allow the witness to repeat his direct testimony.
# Don't permit the witness to explain his answers.
# Don't ask the "one question too many."
# Save the ultimate point of your cross for summation.

One more thing: That "rookie" lawyer won an important legal ruling on a motion.

I would second Peter's comment (#8) about questioning the tactics of the defense attorney in cross-examining Allen.

Whether or not the attorney "failed to grill" Allen about his contention that the anonymous comment was authored by Hoff, the fact remains that the evidence in support of that point is extremely weak. Maybe his rationale was that grilling him about it would only cause the plaintiff to try to shore up that weak testimony. Sometimes direct testimony is so bad you don't need to cross-examine. He also could have been deterred by the judge's prior rulings on the topic, figuring that the benefit was not worth the risk of more sustained objections.

If any attorney made rookie mistakes here, it is the plaintiff's attorney, who is pursuing a case that depends on Allen's testimony about Hoff's purported authorship of the comment.

Peter, Dan - I appreciate your defense of the volunteer defense lawyer (who again, is an intellectual property lawyer, not a litigator), but we talked after the testimony and he was kicking himself for the missed opportunity.

Remember Dan, he did try to grill Allen, but picked the wrong time during testimony to do it. (Thus the judge sustaining the plaintiff's lawyer's objection.)

That said, Peter yes, you're right - he won not one but two big rulings (Moore as public figure and the Section 230/comment ruling.) However both involved convincing a judge - this case will ultimately be decided by a jury.

Like Dan, I think the law is on Hoff's side, but I was less confident Hoff would prevail after watching the court action. However, no one really knows how our seven fellow citizens on the jury feel.

Fair enough, David. Maybe I just can't believe this guy is suing anyone for defamation after reading the City Pages coverage last year.

Did you go to court today? Do you have an update for us?