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.”