By Dan Kennedy • The press, politics, technology, culture and other passions

Cape Cod blogger is sued for libel

A Cape Cod blogger who criticized a group of Barnstable residents for filing a lawsuit aimed at stopping a dredging project in Barnstable Harbor has himself been sued — for libel.

Peter Robbins, who describes himself on his blog as a retired homicide investigator, wrote a post this past March 11 in which he referred to the anti-dredging suit as “this, NIMBY, frivolous, malicious action is doing nothing but stalling the inevitable and costing us the taxpayers unnecessary time and money.” (“NIMBY” stands for “not in my backyard.”) And he identified by name the people who brought the suit, saying that “these are the people who are costing you.”

I’m not going to wade in too deeply until more information becomes available. So far, the only account of the suit is this one, on the Web site Cape Cod Today, which hosts Robbins’ blog. It’s impossible to know precisely what constitutes the alleged libel, because Cape Cod Today publisher Walter Brooks reportedly removed “certain phrases and sentences” at the request of Paul Revere III, the lawyer for plaintiff Joseph Dugas, one of the people identified by Robbins as suing to stop the dredging project.

Presumably all parties agree that what’s there now is not libelous, so there’s no sense in analyzing it. What would be telling is to see what got deleted.

There are several interesting aspects to this suit, and they will be worth following as we learn more:

1. The legal liability of the lone blogger. Under federal law, a Web site such as Cape Cod Today can be considered an Internet service provider exempt from liability if it merely acts as a host for bloggers such as Robbins, and is not involved in actively soliciting, editing and publishing their work. As long as a publisher such as Brooks responds to a request to remove allegedly libelous material, he is free and clear.* That leaves the blogger in an incredibly vulnerable position.

That doesn’t mean Cape Cod Today has thrown Robbins over the side of the boat. The site continues to host Robbins’ blog, and Brooks himself has been calling people’s attention to the suit. But the situation is very different from a reporter for a news organization getting sued, a situation that invariably leads to the organization’s being named as a defendant as well.

2. The privacy of anonymous commenters. According to the Cape Cod Today report, Dugas is suing not just Robbins but also an anonymous commenter who posted under the name “noggin.” The comment has been removed. Cape Cod Today requires registration before anyone can comment, which means that Brooks and company may know who “noggin” is. That, in turn, could lead to a legal battle over whether to reveal his or her identity. (Presumably “noggin” could have registered under a phony name, too, which would make tracking him or her down much more difficult, but not necessarily impossible.)

3. The role of the anti-SLAPP statute. Robbins’ lawyer, Peter Morin, is quoted as saying, “This matter is a textbook example of the justification for an anti-SLAPP statute that protects the right of individuals to comment on matters of significant public concern.” The term “SLAPP” stands for “strategic lawsuit against public participation.” Morin is claiming that the intent of Dugas’ suit is to silence Robbins and prevent him from participating in a matter of public interest. (Judith Miller — yes, that Judith Miller — has written a good piece on anti-SLAPP laws.)

This is of particularly interest to me, as I recently wrote an affidavit on behalf of a defendant in a libel case who was claiming protection under the Massachusetts anti-SLAPP law. In Massachusetts, unlike, say, California, it is not firmly established that anti-SLAPP protection extends to the media — it’s aimed more at community activists.

But with small, independently owned newspapers (yes, there are some) and bloggers, the dividing line between community activism and journalism doesn’t always exist. Advocacy journalism, after all, is both advocacy and journalism.

To be continued — I’m sure.

*Correction: Not exactly. See the comments of David Ardia in this update.

Photo of Sandy Neck Light in Barnstable Harbor (cc) by Mark Crosby, and republished here under a Creative Commons license. Some rights reserved.

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  1. Doug Shugarts

    Not sure if you saw this story from the U.K. last year.A blog written by Boris Johnson, a Tory candidate for mayor of London, was removed by his ISP on the demands of Alisher Usmanov, a foreign national described by the Guardian as a ‘metals magnate,’ who claimed that Johnson had used his blog to libel Usmanov.The money quote from the ISP, in the piece:“The customer was repeatedly advised of the breach and upon failing to permanently remove the content in question.”Their customer account was terminated, the unfortunate result being the possible downtime of other unrelated websites … of which we understand was one.”The controversy in the U.K. has drawn the attention of the U.N. committee on human rights, with the Guardian reporting that “libel tourism,” or the practice of wealthy foreign nationals suing over “…articles that would not warrant action in their own country,” has become a serious legal issue in the U.K.I am not a legal scholar, but I am aware that libel laws in the U.K are much stricter than here in the States. If suits similar to the case in Barnstable are successful in U.S. courts, I wonder if U.S. libel laws will become similarly draconian.Doug Shugarts

  2. Dan Kennedy

    Doug: The libel laws in the U.K. are absolutely draconian. I’ve written a couple of pieces for the Guardian that actually had to be lawyered, even though they would be considered innocuous by U.S. standards. The difference: We have the First Amendment.

  3. O-FISH-L

    Dan, this case and others like it make me curious as to what you’d do if the authorities came to you looking for identifying info (e-mail or IP addresses, etc.) on any of us who post here under a pseudonym? I know that many journalists would go, and some have gone, to jail before outing a source, but are there any rules yet on outing a regular poster to a blog? How much thought have you given it?

  4. Peter Porcupine

    DK – we are both acquainted with Mr. Brooks, and what is going to sink him is lack of consistancy.He’s been asked in the past to eliminate items in posts which were false – and his response was to reply in comments! It reminds one of the old saying about wrestling with pigs…and Walter gets dirty. He also has a regrettable habit of encouraging flame wars via email, claiming that somebody said THIS!! and what are YOU going to say back?But when a liberal or lawyer asks, he has no problem with deleting posts and comments.If there was a protocol and all were treated equally, he would have a grape leaf. As it is, he may not have saran wrap.

  5. Dan Kennedy

    Fish: That’s a very good question. I have no access to anyone’s identifying information. A subpoena-bearing lawyer would have to go to to the service with which you registered, such as Blogger, in order to get your identity. I have no access to the private registration information or IP addresses of commenters.I do know who some of you are, because we’ve corresponded privately. (And you will notice that I’m not saying who.) But that’s a different matter.Federal law makes it clear that I can moderate comments without taking liability onto myself. I do try to eliminate comments that strike me as libelous.

  6. Dan Kennedy

    PP: In this case, it would appear that the plaintiff’s lawyer is conceding up front that Brooks has no liability, since he’s not a party to the suit.There is a “good Samaritan” provision in the federal law that says just because you edit or delete objectionable material sometimes, it doesn’t mean you can be held liable for those times when you fail to delete. So Walter may be standing on pretty solid ground.

  7. Bugsy

    Dan, You are wading in shark infested waters with this post. Be careful.I’ve been told that this suit names a who’s who of Cape pols including Town Council President Janet Joakim, Town Manager John Klimm, Town Attorney Ruth Weil, Town Councilor Ann Canedy and others. ..The suit is for $25 million in damages and has some serious legal fire power behind it. A RI firm has been called in to do the heavy hitting.Brooks may slip through the net because he is throwing his blogger under the bus, but the consequences of this suit in Barnstable will be far reaching.It appears that Janet Joakim’s network of hate-bloggers picked on the wrong individual. Joe Dugas is a stand-up guy. You can’t arbitrarily attack an individual like this just because you think you are a journalist and know how to type.

  8. Dan Kennedy

    Bugsy: Well, that’s fine. As I said, it appears that both sides agree what’s still online is not libelous. I have no opinion on the merits because I don’t know what was removed.I appreciate your concern for my legal health. Not sure I appreciate your implication that I shouldn’t write about this.

  9. Bugsy

    Dan,I made no such implication. We appreciate your attention to this matter.You need to understand that a very fine individual has put $1 million dollars on the table to stop the senseless hate-blogging that has been going on down here.Joe is a stand-up guy. Regardless of how you may feel about his position on the dredging of the Barnstable harbor, you can’t attack the character of anyone and everyone who opposes your position politically.There are some sick puppies down here on the Cape. Bloggers organized a recall of Town Council President Janet Joakim for her hate blogging. We’re trying to take back our Town. All I ask is that you look past Walter’s personal concerns at whole picture.Arf. Arf.

  10. Dan Kennedy

    Bugsy: My bias is toward doing away with libel suits altogether and discussing public issues in public, as caustically as the participants would like. Shouldn’t we trust that the truth will win? Why does it have to come down to lawyers and money?Believe me, I have no position on the dredging of Barnstable Harbor. I’m not even sure where it is!

  11. Bugsy

    Dan, We respect your position and that’s where we’re headed. We’re all big fans of your work.Barnstable bloggers have organized a Meeting of the Voters and a recall election this year.Previously, we supported tax equity and charter reform referendums. We ran seven candidates for Charter and Council last year.We’ve still got some ground to cover, but we’re making progress.The problem we have is the hate bloggers. These are establishment players (and, their puppets) who will say anything online to attack decent folks who oppose the status quo.We live in a small town and you can’t imagine some of the things that have been said about decent folks.This guy Robbins stepped into a pile when you took on Joe. Joe is a good guy.

  12. mike_b1

    Dan, here’s what’s relevant: Solaia v. Specialty Publishing. While the Illinois Supreme Court ultimately found for Specialty Publishing (after several years and who knows how much dinero in legal fees), what prompted the whole mess to begin with was Solaia suing Specialty for defamation for reporting on a lawsuit against Solaia. I won’t go through all the particulars here (Mike Miner of the Chicago Reader probably nailed it best, anyway), but the bottom line is it serves as reminder that anyone can get sued at any time and for any reason.

  13. Dan Kennedy

    I have deleted several comments here. I now consider this comment thread to be closed. Any further comments will be deleted. And if there are any comments here that are still problematic, please send me an e-mail and I’ll delete those, too.

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