Oops is in a way how FBC Jax Watchdog was robbed of his anonymity.
Formerly anonymous blogger Thomas A. Rich's identity was made public after an unnecessary investigation whose details are still being unearthed in court.
Although some evidence pertaining to the involvement of Florida State Attorney Angela Corey was somehow inadvertently destroyed.
Really, and that destruction is cited as part of an argument against deposing Corey as part of the proceedings.
"Oops!" indeed.
Another injustice.
A Florida federal district court refused this week to dismiss the claim by blogger Tom Rich (FBC Jax Watchdog) that Assistant Fla. State Attorney Stephen Siegel violated Rich's right to speak anonymously, and trampled on the Establishment Clause because defendants had no secular purpose for their actions.
The lawsuit alleges Siegel issued subpoenas that helped Jacksonville police officer Robert Hinson -- who was a member of First Baptist Church of Jacksonvilla, Fla. -- identify Rich when there was no evidence of criminal activity.
Dismissed in the same action were civil claims against State Attorney Angela Corey for her office’s role.
Rich’s claims against the police officer and against First Baptist were unaffected because they weren’t involved in this motion to dismiss.
Emerging standards for unmasking anonymous bloggers were certainly not met in Rich's case.
To prevail in this instance, Rich must now prove the violations he alleges. But even at this juncture, the case is a caution for those who would twist legal authority to unmask an anonymous blogger without compelling legal justification. Abuse of power has a price.
[H/T: Religion Clause]
Pastor Mac Brunson of FBC Jacksonville, Fla., preached on Nov. 1 a sermon expressing decidedly limited remorse, apparently for statements he made in April about Thomas A. Rich, the formerly anonymous blogger who blogs at FBC Jax Watchdog.
FBC Jax Watchdog is more confident than we that the sermon is something more than a pass at damage control in the face of a lawsuit Brunson precipitated may see lost.
Review the sermon [Itunes podcast] and read FBC Jax Watchdog's view here.
Douglas Baker of the Oklahoma Baptist Messenger has penned a blog On Baptists and Blogging without linking to a single Baptist blog and without naming a single Baptist blog, although in a paragraph about ChurchRelevance's top 100 church blogs he does allude to some Baptist bloggers by name.
Whew! What a relief.
Because, despite his headline, the primary named focus of Baker's writing is on Joshua Micah Marshall's decidedly secular Talking Points Memo.
After an eerie exercise in reading Marshall's mind, Baker incorrectly describes Marshall as a "a junior editor at The American Prospect" while writing about the period during which Marshall was Washington editor. That was after Marshall served as associate editor. Not "a junior editor" in either case.
Having both lost track of the facts and demonstrated a failure to grasp the hyperlinked nature of blogs (by failing to do any linking himself), Baker proceeds to warn us, it seems, that blogs are somehow innately deceptive:
The challenge for the Christian blogger is to both expose and edify in a manner that obeys Jesus' process of log and speck (Matt. 7:5). Far too often blogging can be both anonymous and autonomous, tricking the writer into thinking that what they write and how they respond represents true community and reality. The real test for great writing is not its spontaneity or immediacy. Rather it is the ability to write in a manner consistent with Christian doctrine and communicated in a manner that seeks to be salt and light in the midst of a very dark world. With this as the goal, there is hope that blogging might truly be used to the glory of God.
Speaking of deceptions, that paragraph is one.
It makes unproven, undocumented, unlinked and otherwise unillustrated assertions about blogs, effectively finding some unmeasured group of blogs guilty of "tricking" someone. It then proceeds immediately to reach a vague yet effectively irrebuttable conclusion about what these possibly nonexistent blogs should do.
Okey-dokey.
Seriously? The First Amendment means the church is above the law?
First Baptist Church of Jacksonville attorneys argue that a fraud, misrepresentation and defamation suit by the formerly anonymous author of FBC Jax Watchdog should be dismissed because ruling “require excessive entanglement [by the courts] in church policies, practices and beliefs.”
That's the wrong issue.
The core issue is abuse of power to unmask the until-then anonymous author of the blog FBC Jax Watchdog, and subsequent events and statements. The suit by blogger Tom Rich appears to make no allegations with regard to protected "church policies, practices and beliefs."
Under the circumstances, the "excessive entanglement" argument seems to imply that freedom of religion is somehow attended by a right to immunity by churches from the legal consequences of their actions.
Bad argument/bad idea.
The most important general public issue is the failure of law enforcement officials to meet or attempt to meet readily available ethical and legal standards for unmasking an anonymous blogger.
Anonymity "is sometimes required if one is to both make responsible contributions to public discourse, and also put bread on the family table." As a result, protecting blogger anonymity is a part of "protecting the discourse itself," which is at the core of our democracy. Protection of that overarching public interest in anonymity of expression has resulted in successful legal battles to prevent unmaskings whose palpable goal was to suppress free expression. But not all bloggers survive unscathed simply because they deserve to do so.
The general public interest in the protection of anonymous expression should have been addressed in court with regard to FBC Jax Watchdog, not circumvented by way of a criminal investigation which was officially closed without charges or meaningful official report. There is we feel a general public interest in seeing the debate joined in open court not, not dismissed on the basis of the FBC Jacksonville freedom of religion pretext.
Had the New York Times been able to call in the Jacksonville, Fla., sheriff's department to do the job, it would most assuredly not have mis-outed the anonymous author (or authors) of the NYTPicker blog.
They then compounded the error by deleting the offending blog entry, even though copies of the text had already traveled the online world an could not be recovered [Copy here].
Who cares? We do, although we mostly agree with Zachary M. Seward at Nieman Journalism Lab:
To be honest, I don’t really care who the NYTPicker is. The site’s Twitter feed has denied the Times’ aborted report, and they’ll no doubt have something to say about the ethics of pulling a post. I just think this is a lesson that removing content from the web is a futile task, particularly for big news sites. And if a story needs to be retracted, if that’s the case here (update: it is), then we need better ways to do it than just pulling content off the web.
There remains a lingering question:
Why did write the story at all?
The author does perform a service, although having your glaring errors regularly reported to the world may not feel like a services to those who err. Thus attempting to report the author's identity has the scent of revenge about it. And basing the failed revelation on an anonymous source, without securing appropriate confirmation before reporting, is both overeager and bad reporting.
Bad as all that is for The Times' reputation, it isn't manipulation of a law enforcement agency and trampling of available legal standards to unmask a critic.
There are available if evolving ethical and legal standards to help law enforcement officials decide whether to identify anonymous bloggers. Yet accounts suggest that none were applied when Jacksonville, Fla., Sheriff’s Detective Robert Hinson unmasked FBC Jax Watchdog to First Baptist Church of Jacksonville (FBC Jax) leadership.
Jacksonville Times-Union reporter Jeff Brumley wrote:
It was also proper for [Detective Robert] Hinson to provide First Baptist’s leadership with [Thomas A.] Rich’s identity despite finding no criminal evidence, [Undersheriff Frank] Mackesy said, so it could take whatever internal action it felt necessary for its own safety.
Mackesy's allusion to "safety" may be read as an attempt to excuse his department for an error, since nothing Detective Hinson reports finding provides reason to believe the safety of either the church or any of its members was at risk from Rich. A close reading of the FBC Jax Watchdog blog reveals no threats of violence. Nor is there anything other than restrained self-expression in the Watchdog's words we have seen quoted elsewhere.
Hinson could not have escaped knowing, however, that his minister yearned to identify the author of the anonymously penned FBC Jax Watchdog blog which regularly called him to task. Hinson, who is a member of FBC Jax Pastor Mac Brunson's security detail, surely knew Brunson would be grateful for that information.
The ties between charismatic pastor and protective parishioner, and the attendant natural desire to please the pastor, created an appearance of conflict of interest which overshadows this matter.
Concerns about that apparent conflict should in our view have led Hinson to recuse himself from any investigation involving his church and pastor.
Legal ethics, most evident in judicial standards, generally require such recusal. For even if an officer behaves with unwavering professional objectivity, the appearance of conflict still tends to undermine public confidence in the department and thus in the law.
Even so, had Detective Hinson not given up Thomas A. Rich as the anonymous author of the FBC Jax Watchdog blog, that appearance of an ethical conflict of interest would not have congealed into an argument for its reality. That appearance is unreduced by the sheriff's failure address his subordinate's role, even if unintentional, in the pillorying of Rich by FBC Jax which followed Hinson's disclosure.
In addition, emerging legal standards regarding blogger anonymity suggest that Rich should have been given notice of Hinson's intended erasure of his anonymity -- notice attended by ample time to respond. Rich's legal counsel could then have argued in court for the protection of his privacy and First Amendment rights.
Recent cases also suggest that those seeking an anonymous blogger's identity must demonstrate to a court that their claim will withstand both a motion to dismiss and a motion of summary judgment. That is, they must plead facts necessary to succeed in their claim, and show the sufficiency of those facts.
Thus far there appear to have been no facts sufficient to have persuaded a court of competent jurisdiction to strip Rich of his anonymity. Nor to have seriously considered doing so. There are instead contradictory accounts of the causes for the investigation -- with the Rev. John Blount, who filed the complaint, differing from Hinson -- and an apparent dearth of facts.
We are left with abiding concern about Hinson's possible conflict of interest, the lack of appropriate legal regard for Rich's rights and the chilling effect on free expression which can result from such a public trampling of an individual's rights.
FBC Jax Watchdog's anonymity was silently demolished by an unsatisfactorily explained and, from the point of view of the blogger, secret criminal investigation.
Anonymous blogs permit the relatively powerless to speak what they believe is truth, to power. Sometimes the power is a church, as we see in the confrontation between First Baptist Church of Jacksonville, Fla. and FBC Jax Watchdog, and risk still attends attempting to say to power things it would prefer not to hear.
The unmasking of Thomas A. Rich as Watchdog, detailed in Florida Times-Union, closely resembles the July attempt by the Bronx (N.Y.) District Attorney to use a grand jury subpoena to unmask and silence critical anonymous bloggers and commenters on the NYC political blog site called Room 8. With the help of Public Citizen, Room 8 successfully resisted disclosure.
We do not know how Google responded to the subpoena it received. Not only does Google have an official policy of not commenting on subpoenas or other legal processes, but also, subpoenas associated with criminal investigations are typically attended by gag orders (Room 8 responded by threatening the Bronx DA's office with a countersuit). Nor has Watchdog thus far been able to obtain a copy of the subpoena he believes Comcast honored.
We do know that no wrongdoing was found, yet the investigating Jacksonville Sheriff's Department officer apparently chose to breach the blogger's anonymity by disclosing his identity to FBC Jax. We also know that Thomas A. Rich's life was disrupted as a result. He was denied access to his (now) former church, publicly excoriated in an official church action and this week was described as a "sociopath" by the pastor who has been the principal subject of his blogging.
We don't know in persuasive detail what criminal allegations were believed to justify that intrusion of police power into Rich's life and the lives of two other bloggers. As a result, whether those allegations can withstand the light of day is an open question. Serious issues of conflict of interest (the investigating officer is an FBC Jacksonville member and apparently among those who provide security there) and as a result abuse of power, have been raised by the association of the detective's investigation with attempts to silence the then anonymous blogger.
Such issues are typically best resolved by full disclosure, for this has become in considerable part a debate over public policy, and specifically over whether the force of law was properly applied. Given the issue's visibility, the local and state public officials involved must tell the truth and trust the people, or absent a thoroughly compelling explanation for silence, find themselves indicted by the appearance of concealment.
If the purpose of the investigation and disclosure was to end Watchdog's commentary on matters of general interest to his audience, it failed and those who applied the pressure have put themselves in the fire.
Ethical/legal standards not followed by law enforcement in FBC Jax case
For a quick and cautionary-to-eye-popping review of defamation law across the globe, visit Article 19's interactive defamation map.
"Mouse over the color-coded world map to compare criminal and/or civil defamation penalties in different countries, and open windows that provide updates to new and pending legislation," explains First Amendment Law Prof Blog.
Thursday brought us Watchdog coverage of the drive to strip him of his anonymity.
You may recall that Watchdog aggressively blogged First Baptist Church of Jacksonville, Fla.'s, policies and repressive governance, especially the pastor's accumulation of power. The deacons adopted a resolution directed at him and it was approved in a vote by the congregation [video] -- after he was no longer a member there. Etc.
BaptistLife.com site administrator William Thornton observed that FBC Jacksonville conducted a "public flogging of a former member" -- a process which sounds "less Biblical than it does medieval." [Amen to that.]
We did not celebrate the earlier caesura in self-expression about matters which at every step have appeared to be legitimate public concerns. It is good to see the hard questions asked now about privacy, conflict of interest and (still) church governance. Such public debate can be redemptive by revealing the truth.
Wade Burleson is asking important, hard questions about the collapse of FBC Jax Watchdog's anonymity. The legal circumstances do seem disturbing. The questions raised about the potential misapplication of power do require answers.
For those who say it's none of Burleson's business (or perhaps ours), on the World Wide Web, Enid, Ok., is right next door to Jacksonville, Fla.
Church blogging ain't beanbag there and could easily take similar twists on your computer desktop, in your sanctuary and perhaps in a courthouse nearby.
Watch and question. If you need anonymity in this country you have it, if you can keep it.
Disclousure of defendant's identity is not somehow automatic in Maryland, and may require an overarching federal statute. So argues FindLaw columnist & First Amendment specialist Julie Hilden.
Advised to fall silent about First Baptist Church of Jacksonville, Fla., "until certain on-going events run their course," the Watchdog has proclaimed himself "muzzled."
Watchdog promises to tell his story then, and it sounds both interesting and illustrative of what can befall anonybloggers:
When I tell my story, it will be the entire story of what has occured regarding this blog, the legal proceedings, Comcast subpoenas, field reports, official JSO trespass warnings ... all of it. It isn't pretty, and many people will be sorely disappointed at what has transpired in the last few months behind the scenes.
Public-spirited anonymous blogging deserves our support and defense. After all:
Do we not protect the discourse itself by protecting this one blogger?
A collapse of anonymity appears to have led to this silence -- a caesura in self-expression about matters which at every step have appeared to be legitimate public concerns.
Do not look here for a celebration of such silence.
Anonymous blogging is part of a tradition of protective self-expression whose origins predate electronic communication, as an anonymous comment at Enid, Ok., pastor Wade Burleson's blog eloquently explains:
All of this talk about anonymity has got me thinking. The term “coward” is sure getting thrown around a lot, and that is unfortunate. I wonder if anyone here has ever read or heard about the Marprelate tracts? They were written by (anonymous) Puritans in 1588-89 criticizing the abuses of Anglican bishops and clergy. They knew the consequences if they were discovered, but they could not remain silent. In fact, two men (both ministers) died (1 executed, 1 died in prison) because they were linked to the printing of the tracts. The printer, Waldegrave, had his press confiscated and was financially ruined. It is debatable whether or not the authors were ever really discovered. When the Anglican Star Chamber issued an edict in 1586 declaring that the Anglican church had the power to license and/or forbid all printing in the country, these men knew that they must speak out, but they didn’t necessarily want to die for it. After all, when a “trouble-maker” is discovered and dealt with (i.e. ruined by those in power that he critiques), then the criticism is silenced and people remain in the dark about the issues.
Read the rest here.
Anonymous blogging does permit the less powerful to constructively express themselves about the powerful. It does honorably trace its heritage to the anonymous pamphleteers, like those who wrote during the American revolutionary era.
Through anonymity authors may escape intimidation and other retaliation that would silence them and as was the case in 2007 with a New Jersey blogger, "daTruthSquad", legal action is sometimes required to preserve their anonymity and thus their continued self-expression.
Demeaning anonymous self-expression as "cowardice" is in such cases merely additional pressure on the blogger to fall silent.
As gwfrink3 wrote at the time:
Democratic government cannot be well-conducted in the dark, and this anonymous author is casting good light.
Yet anonymity is sometimes required if one is to both make responsible contributions to public discourse, and also put bread on the family table.
Do we not protect the discourse itself by protecting this one blogger?
Frink recently argued the public service case for FBC Jax Watchdog .
Aware that like all examples (ourselves included) he is imperfect, we have defended him as well. Anonymity and all, the less powerful critic's risk is real. Care is required.
We back up today on all of this not a single step.
After the advent of BushTapping, you may well have begun to wonder how to protect some precious fraction of your private data from prying government eyes.
Enter the Electronic Frontier Foundation with the Surveillance Self-Defense site.
There, you can find the information and tools you need to evaluate the threat and protect against it.
Learn what the government can legally do to snoop on you, and what you can legally do to protect yourself. It's "all about risk management" with regard to data stored on your computer, data on the wire and data about you stored by third parties.
Today is a good time to surf over there and get started. Not after some secret subpoena has swept every crumb of your privacy into a dust bin.
The possibility of future, public-service anonyblogging isn't all you have to loose.
Trust whom?
Anonymous blogs are one answer the relatively powerless have when speaking what they believe is truth, to power.
Power is typically governmental. So it was when the help of the Electronic Frontier Foundation was required to help an anonymous New Jersey blogger, "datruthsquad," face down the township of Manalapan when it sought to unmask him in 2007.
Sometimes power is corporate. The corporation may be, as we see in the confrontation between First Baptist Church of Jacksonville, Fla. and FBC Jax Watchdog, a church. In every case, some risk attends attempting to say to power things it would prefer not to hear.
As gwfrink3 documents, not all serious, careful bloggers who come under direct fire from the powerful emerge from it in good condition. That's why it is important for anonymous bloggers to attend to the technical details of their anonymity.
With or without the cloak of anonymity, some fear of retribution, not always legal retribution or even retribution for a real offense, is legitimate.
The nature of the modern blogging landscape suggests that FBC Jax Watchdog is exercising due caution, as explained by Wade Burleson in a blog which relates an interview with Watchdog:
The Watchdog has not gone public with his name, receiving a great deal of criticism for blogging anonymously, but explained to me he remained anonymous out of fear of retribution from powerful civic leaders who are members of the church and could intentional[ly] seek to ruin his name and business. He told me his compelling story, details of which are startling, because he said he trusted me.
Matters may not go that far, but thinking ahead and guarding against any number of possible unfortunate possibilities is simply due caution.
Before taking a single step down that path, read the legal guide[s]. Read and apply the technical guide. Make sure it's worth the risk.
Aggressively blog a church's policies and governance, and the deacons may adopt a resolution directed at you and see it approved in a vote by the congregation [video].
Some approve of the action at First Baptist Church of Jacksonville, Fla.
Some do not and defend the anonymously penned FBC Jax Watchdog blog, which is the target of the resolution.
FBC Jacksonville attracted considerable attention by sponsoring blog posts calling Catholicism a cult [eventually removed from the site]. Although the grievances of Watchdog certainly neither began nor ended there.
The bylaws governing resolution of grievances within that church appear to be heavily loaded against dissent.
Whatever the merits of any particular issue there, that repressive approach tends to drive debate underground -- often into anonymous blogs -- not eliminate it.
William Thornton notes that FBC Jacksonville conducted a "public flogging of a former member" without, of course, "naming names." He goes on to say the disciplinary process sounds "less Biblical than it does medieval." [Amen to that.]
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