Back in 2021, Robert F. Kennedy Jr. sued Daily Kos to unmask the identity of a community member who posted a critical story about his dalliance with neo-Nazis at a Berlin rally. I updated the story here, here, here, here, and here.
To briefly summarize, Kennedy wanted us to doxx our community member, and we stridently refused. We protect our community at all costs. Shockingly, Kennedy got a trial court judge in New York to agree with him, and a subpoena was issued to Daily Kos to turn over any information we might have on the account. However, we are based in California, not New York, so once I received the subpoena at home, we had a California court not just quash the subpoena, but essentially signal that if New York didn’t do the right thing on appeal, California could very well take care of it.
It’s been a while since I updated, and given a favorable court ruling Thursday, it’s way past time to catch everyone up.
This has become a critical free speech case, with what’s called the ”Dendrite standard” at stake. In short, the Dendrite International, Inc. v. Doe No. 3 ruling states that anonymous speech is protected unless all of the following apply:
(1) the plaintiff must make good faith efforts to notify the poster and give the poster a reasonable opportunity to respond; (2) the plaintiff must specifically identify the poster's allegedly actionable statements; (3) the complaint must set forth a prima facie cause of action; (4) the plaintiff must support each element of the claim with sufficient evidence; and (5) "the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity."
Put another way, a plaintiff better have a damn good reason to violate an anonymous poster’s free speech rights in order to force a media organization to unmask them.
This test, suggested by Public Citizen and the ACLU in an amicus brief, was originally adopted by a New Jersey court in 2001. Ever since, Public Citizen has avidly sought to enshrine it in additional states. One of the missing states? New York. Public Citizen has assisted our defense team and represented our community member as an opportunity to enshrine the Dendrite protections in New York.
The issues at hand are so important that The New York Times, the E.W.Scripps Company, the First Amendment Coalition, New York Public Radio, and seven other New York media companies joined the appeals effort with their own joint amicus brief. What started as a dispute over a Daily Kos diarist has become a meaningful First Amendment battle, with major repercussions given New York’s role as a major news media and distribution center.
After reportedly spending over $1 million on legal fees, Kennedy somehow discovered the identity of our community member sometime last year and promptly filed a defamation suit in New Hampshire in what seemed a clumsy attempt at forum shopping, or the practice of choosing where to file suit based on the belief you’ll be granted a favorable outcome. The community member lives in Maine, Kennedy lives in California, and Daily Kos doesn't publish specifically in New Hampshire. A perplexed court threw out the case this past February on those obvious jurisdictional grounds.
[He] does not live or work in New Hampshire, he has no meaningful contacts with this state, he did not consult any New Hampshire sources when writing the article, he did not mention New Hampshire in the article or otherwise ‘direct’ the article to this state, and he had no reason to anticipate that the ‘brunt’ of the (alleged) injury to Kennedy’s reputation would be felt in New Hampshire—particularly since Kennedy is not a resident of New Hampshire and his connections to New Hampshire are, at best, attenuated.
Then, last week, the judge threw out the appeal of that decision because Kennedy’s lawyer didn’t file in time—and blamed the delay on bad Wi-Fi.
Freakin’ hilarious! So our intrepid community member, who ultimately unmasked himself, is in the clear! But that doesn’t mean the broader case is over.
Kennedy tried to dismiss the original case, the one awaiting an appellate decision in New York, claiming it was now moot. His legal team had sued to get the community member’s identity, and now that they had it, they argued that there was no reason for the case to continue.
We disagreed, arguing that there were important issues to resolve (i.e., Dendrite), and we also wanted lawyer fees for their unconstitutional assault on our First Amendment rights. (Fun fact: The press is the only profession specifically mentioned in the U.S. Constitution.)
On Thursday, in a unanimous decision, a four-judge New York Supreme Court appellate panel ordered the case to continue, keeping the Dendrite issue alive and also allowing us to proceed in seeking damages based on New York’s anti-SLAPP law, which prohibits “strategic lawsuits against public participation.”
Here’s how one of our lawyers, Adam Bonin, described the court order: “A New York appeals court is unanimously allowing Daily Kos to proceed on claims that RFK Jr. had no right to try to unmask one of our users and that his attempts to do so violated New York's anti-SLAPP rules, which may entitle the site to seek damages against him.”
Kennedy opened up a can of worms and has spent millions fighting this stupid battle. Despite his losses, we aren’t letting him weasel out of this.
We’ve been able to fight this fight on behalf of our valued community because of your generous support.
Donate here to help us keep fighting Kennedy.
Campaign Action kos May 02, 2024 at 10:30PM From Daily Kos
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