July 11, 2012

Informative Judicial Decision

Filed under: Probable Cause — Bill @ 4:14 pm


Tina Jacobson, a former official of the Kootenai County Republican Central Committee, has filed a defamation lawsuit against John and/or Jane Doe for comments allegedly posted by the defendant using the pseudonym “almostinnocentbystander” on The Spokesman-Review newspaper’s blog, Huckleberries Online (HBO).  Believing that HBO’s administrator knows John and/or Jane Doe’s true identity, Jacobson’s attorney issued a subpoena to compel the HBO administrator to identify that person’s true identity plus the identities of two pseudonymous witnesses. The Spokesman-Review sought to quash the subpoena, and yesterday First District Court Judge John P. Luster issued his memorandum decision on the motion to quash.

Addendum 07-12-12This article ran in today’s Los Angeles Times.  What the Times writer failed to make clear is that Judge Luster’s opinion did not represent that HBO is a news blog.  Rather, Judge Luster clearly stated it was an opinion blog and that its administrator was not functioning as a news reporter in administering it.  Thus, any persons commenting on the blog are not entitled to be characterized as confidential news sources in the same manner as, say, “Deep Throat” was during the Washington Post’s reporting of the Watergate scandal.

Everyone who posts comments and original material on websites like HBO or OpenCdA ought to carefully read and understand Judge Luster’s memorandum.  It will help clarify many of the questions commenters and posters have about such issues as prohibited defamation versus lawful criticism, opinion websites versus news services, and the limits of protection by posting anonymously.

Assuming Jacobson’s defamation lawsuit now proceeds, the decision reporting its outcome should be equally informative.

OpenCdA readers should clearly understand that, unlike The Spokesman Review, we make no representation that we are a news organization.   We will remove posts and comments which do not meet the OpenCdA Policy for comments and posts.  Persons posting comments and material are responsible for the content.


  1. Shawn Vestal:

    Comment by Pariah — July 12, 2012 @ 5:35 am

  2. Bill, do you think the S-R will turn it all over? I am thinking if they don’t there is really something to hide. If they do, and the only real source is DFO – and the IP stuff ect. reveals nothing – how can they compel the administrator of a blog to cough up stuff he may claim he does not know even if he is not acting under reporter privilege?

    Comment by Stebbijo — July 12, 2012 @ 1:56 pm

  3. Stebbijo,

    The S-R will do whatever the S-R will do.

    It seems to me that the S-R’s position in the motion to quash Jacobson’s subpoena is inconsistent with the position the S-R took in its editorial on March 1, 2011. In that editorial, they quoted from US Supreme Court Justice Antonin Scalia’s concurrence in Doe v. Reed in 2010 when Justice Scalia said, “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” But the line just before that one in Justice Scalia’s concurrence closely addresses the present issue more: “There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance.”

    From the information in Judge Luster’s decision it sounds like Tina Jacobson was willing to accept harsh criticism for her politically partisan participation in self-governance, but the defamation alleged is, if proven at trial, an unlawful action. The S-R’s position seems to be one of limiting Jacobson’s right to the remedy for an unlawful action, limiting her right to have evidence heard by the Court and to restore her good reputation in the community just so that some of the S-R’s (anonymous) commenters will feel comfortable in their pseudonymity.

    Comment by Bill — July 12, 2012 @ 4:53 pm

  4. Thanks for the answer, Bill. I also corrected by lead in paragraph and removed the word “sued” so it would not be incorrect. Thank you. Anytime a plaintiff goes to court, I think of them as suing someone.

    Comment by Stebbijo — July 13, 2012 @ 12:41 pm

  5. … and in this case, it does not really compute as Jane or John Doe – but, I get it. If the S-R refuses to hand over the information, this it all changes.

    Comment by Stebbijo — July 13, 2012 @ 12:50 pm

  6. Stebbijo,

    Fictitious defendants (John and/or Jane Doe) are often named as defendants in actions that have a short statute of limitations so that the action can commence. The court is more likely to accept a fictitious defendant if there is good reason to believe the true name(s) of the defendant(s) can be learned and revealed.

    Comment by Bill — July 13, 2012 @ 1:12 pm

  7. They are also used when the state is taking away custody of children – against the parents as in parental rights and adoption cases.

    Comment by Stebbijo — July 13, 2012 @ 2:33 pm

  8. I thought Judge Luster’s decision was a good one. It is also true that DFO has been clear his blog is not a news source and is an opinion/discussion blog. The shelter of being a “source” really shouldn’t exist there. I’m pretty much against anonymous blogging anyway. My thought is if you wouldn’t say it clearly , out loud, and without hesitation you shouldn’t say it. I have the same policy about gossip. If I wouldn’t say it in front of you…I shouldn’t say it when you aren’t present to hear it. Just my way.

    Comment by Randy_Myers — July 14, 2012 @ 4:28 pm

  9. Randy

    Have you had your business boycotted for not agreeing?

    Have you been fired for not agreeing?

    Have you been publicly chastised for not agreeing?

    Comment by concerned citizen — July 15, 2012 @ 9:15 am

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