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NY Times and 11 media organizations file amicus brief supporting Daily Kos in Kennedy Jr. lawsuit

The brief was written by The Reporters Committee for Freedom of the Press, joined by 11 media companies and organizations: The E.W. Scripps Company, First Amendment Coalition (the nation’s fourth-largest local TV broadcaster with 61 stations), The Media Institute, MediaNews Group (which owns over 100 newspapers and 200 other assorted news platforms), New York News Publishers Association, New York Public Radio, The New York Times Company, Online News Association, Radio Television Digital News Association, Society of Professional Journalists, and the Tully Center for Free Speech at Syracuse University. This means the full weight of the media establishment has joined in on our side. As they write in their brief, “Amici thus have a strong interest in ensuring that New York courts apply a standard for pre-suit disclosure of anonymous online speakers’ identities that appropriately accounts for the First Amendment interests in such speech.”

To recap, the New York trial court ruled that there was no harm in unmasking DowneastDem because she or he could then defend against defamation in court. The judge was unpersuaded by our argument that the unmasking was the sole purpose of Kennedy’s lawsuit, not defamation, and would impact both the diarist, and everyone else’s ability to comment on current events anonymously without fear of public reprisal—a right enjoyed from the very founding of our nation. The media orgs write:

Indeed, as the Supreme Court has underscored, anonymous speech has played an important role throughout U.S. history. Revolutionary writers garnered public support through tracts published under pseudonyms such as “Common Sense” or “Farmer.” After the Revolution, Federalists and anti-Federalists relied on the cloak of anonymity to debate the Constitution, writing under names like “Publius” and “an American Citizen.” As this history demonstrates, anonymous speech has “an honorable tradition of advocacy and of dissent.” [Citations omitted]

The brief notes that anonymity is important for voicing unpopular opinions, to avoid “social ostracism” or physical harm. To allow unpopular messengers to write without being prejudged. To protect organizations they work for from damage by association. To protect from retaliation—particularly salient in today’s acrimonious political climate. I don’t have to tell you why anonymity is so important. You guys get it. This site is built on protecting its participants’ rights to freely speak their minds without fear of personal reprisals. And these organizations want to protect their own sources and commenters from the likes of Kennedy.

Media entities have a First Amendment interest in protecting the speech of those who contribute information and commentary to their websites. Media entities do more than report the news; they allow for outside comment on op-ed pages and in letters to the editor, engaging the community in discussion of public affairs. Online—where the space constraints of print do not exist—news outlets can foster even more speech; readers publish commentary, criticism, and praise, and those who disagree can respond immediately. However, if readers’ speech is chilled by the fear that their identities will be exposed, news sites’ contribution to public discourse lessens.

Ultimately, the brief focuses on a legal test (Dendrite) first established in New Jersey courts by Public Citizen. The test has been adopted in some form by appeals courts in California, Connecticut, Indiana, Kentucky, Minnesota, Nevada, New Hampshire, North Dakota, Pennsylvania, Utah, and Washington. The test requires the following formulation before allowing the unmasking of an anonymous commenter:

  1. The plaintiff must attempt to notify the anonymous speaker and allow time for response;
  2. the plaintiff must specify the speaker’s allegedly defamatory statements;
  3. the plaintiff must adequately plead each element of the claim, such that it would withstand a motion to dismiss;
  4. the plaintiff must produce sufficient evidence to establish each element of a prima facie defamation claim; and
  5. the court must balance the speaker’s First Amendment right of anonymous free speech against the strength of plaintiff’s prima facie case and need for disclosure.

In layman’s terms: The plaintiff has to prove it has a real case, with a real chance to succeed, and a judge must still consider its impact on First Amendment protections, before any unmasking is allowed. It would preclude Kennedy’s effort to reveal DowneastDem’s identity with a mere promise of a case against that individual.

Read the full brief if you’re interested. It’s actually quite fascinating reading if you’re into First Amendment matters.

Meanwhile, Public Citizen is licking its chops at the chance to establish the Dendrite standard in such an important media state as New York. In addition to representing DowneastDem in the litigation, it has joined in the New York litigation with its own amicus brief. The lawyers writing it clearly had some fun with it. For example, while arguing that Kennedy filed the case in the wrong state, Public Citizen mocked Kennedy for requiring vaccination at his Christmas party.

DowneastDem has argued in California that, given New York’s limitations on long-arm jurisdiction to pursue libel claims, she is not subject to personal jurisdiction in New York, and she does not wish to subject herself to personal jurisdiction in New York by filing in this case. There is, indeed, additional reason to question whether Kennedy can proceed against her in New York given media reports that Kennedy lives in California. Guests urged to be vaccinated for party at anti-vax Kennedy’s home: report. 

That is some delicious shade!

(Note, Public Citizen used “she” as a generic pronoun, clarifying at the start that it did not necessarily identify DowneastDem’s actual gender.)

This brief focuses mostly on Dendrite, which makes sense given it’s Public Citizen’s baby. And it’s fun reading, truly! Here’s the link again.

Additionally, Daily Kos submitted its own reply brief yesterday on the appeal, which you can find here. It’s a great read as well, deep in the weeds of the hypocrisy underlying Kennedy’s arguments.

Daily Kos would fight this fight alone if it had to. It is righteous, and it’s an existential threat to the premise of the Daily Kos project. Anonymity is at the very core of this site. It’s even the reason it was named “Daily Kos” and didn’t use my actual name. I had a job when I started it! I didn’t want them to think I was shortchanging my work with them for this site. Without anonymity, Daily Kos wouldn’t exist. And without it, you all wouldn’t have the freedom you do to comment on our nation’s politics without fear of reprisal.

That said, it feels amazing to have such great company in our efforts to advance the ball on First Amendment protections. This is a serious case, with serious consequences, and the firepower now lined up on our side speaks to its importance. This fight matters.

This litigation, spanning two states, has been incredibly expensive. But we’ve been able to go toe-to-toe with Kennedy’s wealth and privilege because you all have had our back. We’re not done, this could drag out for years, but you’ve made it possible for us to even get to this point and persist.

Public Citizen has stepped up to defend pro bono the community member Kennedy is trying to unmask, as well as lending their expertise to our own case in New York with their amicus brief. As always, I urge you to donate to Public Citizen for their courageous defense of our rights to political participation, as well as us here at Daily Kos so we can continue to fight this as long as Kennedy insists on trampling on our rights. (As if killing people by scaring them away from lifesaving vaccines wasn’t enough damage already.)

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