law – Jim Eltringham

The 40th anniversary of Roe vs. Wade, like several others before, marks an annual clash between those who support abortions and those who do not. Issues of life are very important, and the abortion issue very literally is a matter of life and death – the whole debate should center on the origin point of life and what rights are extended to whom and when. In moments of calm, good people on both sides should be able to rationally debate those points. (Those moments of calm tend to be fleeting.)

Here’s another point, separate from the abortion debate: from a legal perspective, the majority opinion in Roe v. Wade is a really bad decision.

A couple years back, the Washington Examiner’s Tim Carney memorialized the Roe anniversary with a litany of quotes from pro-choice legal scholars who recognized Justice’s Blackmun’s opinion as, in the words of Michael Kinsley, “constitutional origami… a muddle of bad reasoning and an authentic example of judicial overreaching.”

Read the opinion, and really think about it. Blackmun – not a doctor, by the way – reasons that dividing pregnancy into trimesters is the best way to handle the issue of conflicting rights. One man wrote that opinion, even if he fielded input from others, and that opinion is now the legal definition of when life starts.

Let’s just think about that idea of a judge, sitting in his office in Washington, D.C., deciding that whatever is in his head will be the law of the land. The absolutism of it recalls that Twilight Zone episode where “The State” deems Rocky’s trainer obsolete (and sentences him to death) for being a librarian.

It’s not the only example of an absolutely ridiculous Supreme Court decision, but it’s the only one whose anniversary is marked every year.

Manhattan’s Supreme Court has ruled that Google must surrender the name of the blogger behind Skanks in NYC, which was hosted on their Blogger platform (but is no longer active). The ruling came in response to Canadian model Liskula Cohen, who the blogger allegedly accused of being a skank (apparently while she was in NYC).

The first reaction of many freedom-loving people upon seeing a story like this is to worry about limits to the first amendment – especially as it pertains to emerging online environments. After all, doesn’t an individual have the right to post anonymous speech? This particular case, however, isn’t quite so simple.

First, the blogger in question was posting on someone else’s platform – in this case, Google’s – so they transfer many of their rights to that host. Google fighting to keep their identity private was probably a good business decision, but in no way an obligation.

Second, the court ruling did not force the blog to stop publishing or stay down (which could have violated the US Supreme Court’s ban on prior restraint of speech). All it did was ask the person to come from behind the curtain.

Cohen and her legal team will likely pursue a defamation of character suit against the blog – claiming that she is not, in fact, “a psychotic, lying, whoring, still going to clubs at her age, skank” – as the blog describes her.

The Manhattan Supreme Court Ruling doesn’t judge Cohen’s defamation case – and, based on previous US Supreme Court case law, as a public figure her burden of proof is high. Essentially, Cohen must prove that Skanks in NYC acted with “actual malice” – that they knowingly portrayed her as a skank even though they knew, factually, that she was in fact not a skank.

It’s a tough case but one Cohen has every right to pursue – but there can’t be a case without a defendant, and the identity of that defendant has implication on their knowledge of Cohen’s skankiness or lack thereof. The Manhattan ruling is the equivalent of a search or arrest warrant – since there may have been an offense committed, they are allowing Cohen’s legal team to pull back the curtain and investigate.

Depending on the circumstances, I would tend to side with the blogger – for many of the reasons outlined by his or her attorney, according to CNET:

The lawyer also offered the view that blogs have “mere venting purposes, affording the less outspoken a protected forum for voicing gripes, leveling invective, and ranting about anything at all.”

I doubt anyone will look at Cohen any differently because of this blog. Most smart people take blogs with a grain of salt commensurate in size with the reputation of the blogger. I never saw Skanks in NYC (at least, not the blog) but would imagine most of its fan base read the posts to laugh.

The US Supreme Court has warned about the “chilling effect” limits on free speech would have, and for that reason all courts must be careful – especially when considering cases like this. Popular free speech rarely has to be defended; it’s the unpopular speech that tests our societal resolve for open discussion.

The Manhattan Supreme Court has ruled that the case is at least worth taking a look at – and that Cohen deserves her day in court, regardless of the outcome. And, so far, that is all they have ruled.

Tag: law

40 Years of Bench Law