Final thoughts on supermodel-blogger catfight

A few final thoughts on the "skank" blogger case. I was on The Jeff Farias Show Friday talking about this story. Jeff asked me if I was concerned about courts stomping on Internet anonymity and I said, generally, no, that courts must strike a balance between First Amendment rights of anonymity and the rights of plaintiffs to seek remedies for wrongs. That in several decisions the courts had defined reasonable, balanced, multi-step tests that seem well-crafted to strike that balance.

While I'm glad to speak up for the courts, when so many on the left and the right are ready to castigate judges for creating balanced rules, I do regret not looking more closely at whether the federal judge in this case struck such a balance.

I don't think she did.

In a recent decision by the D.C. Circuit Court of Appeals, which created a five-step process in that circuit (but doesn't control in New York's Second Circuit), the fourth test is this:

Require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control

I have a hard time believing that the court required Liskula Cohen to show evidence supporting her case, because her case seems so thin. Rosemary Port engaged in name-calling, ranting and generally bad online behavior. If you peruse her statements, I don't see anything more than that and I doubt Cohen was able to produce anything resembling a statement of fact that would harm Cohen's reputation.

As Cohen's lawyer, Steven Wagner, admits, the most damaging postings were not Port's words but the photos of her simulating simulating sex with a man (both were fully clothed). But a photo is not libel, although it might be false light invasion of privacy.

I'm still not sure this case amounts to a CyberSLAPP case, but a judge's failure to demand the plaintiff give compelling, or a least solid, evidence of her case is troubling. Port's failure to appeal the judge's decision means we won't have a Second Circuit ruling on this judge's ruling, which is not precedential but I still think most of the appellate cases so far give proper balancing to both interests.