Grafix Avenger & Hoboken Horse Defend Free Internet Speech

Socrates said, “While I may disagree with what you say I will defend to the death your right to say it.” Socrates would be proud of Judge Patrick J. Arre in Hudson County.


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Socrates said, “While I may disagree with what you say I will defend to the death your right to say it.”  Socrates would be proud of Judge Patrick J. Arre in Hudson County.

Let’s face it, even those of us with Rhinoceros skin are bugged sometimes when anonymous blog posts misstate facts and say the most awful things.  Imagine the cottage industry for lawyers if everyone took them to court.  Worse yet, imagine America if people were afraid to speak their mind?

America without free speech is not America.  Don’t allege people commit crimes, have sexually transmitted diseases, engage in bad business practices or cheat on their spouse and the speech activity should remain protected even if it is an anonymous blog comment.

Public figures need especially thick skin. If the topic is a matter of public concern or the person discussed is a public figure, the law generally protects the First Amendment free speech rights of the poster so long as there was no malicious intent. The question of course is where to draw the line.

In New Jersey, a Hudson County Superior Court judge recently dismissed a defamation lawsuit against Hoboken bloggers Roman Brice and Nancy Pincus, who post under the names Hoboken Horse and Grafix Avenger. Plaintiffs Lane Bajardi and Kim Cardinal Bajardi alleged that the two bloggers damaged the Bajardi’s reputations through a series of posts that accused Lane Bajardi of being a political operative of Hoboken Second Ward Councilwoman Beth Mason and suggested he was involved in the theft of emails from Mayor Dawn Zimmer’s office.

The court ultimately concluded that the plaintiffs failed to prove all of the elements of a defamation claim, which include that the defendant communicated to a person other than plaintiff a false and defamatory statement of fact concerning the plaintiff with actual knowledge that the statement was false or with reckless disregard of its truth or falsity, thereby causing the plaintiff to incur actual damages. “The suit needs to sufficiently support the finding of actual malice or reputational injury,” Judge Patrick J. Arre held. “Therefore, the plaintiffs’ complaint is dismissed.”

Judge Arre applied a heightened standard after concluding that the Bajardi’s involvement with the “political factions” in Hoboken made them public figures. In the interest of protecting free speech, when a public figure brings a defamation lawsuit, he is required to prove that the defendant acted with actual malice, meaning he must present evidence that the defendant knew his statement to be false or that he had serious doubts as to the statement’s veracity. Private individuals need only prove that the speaker was negligent.

New Jersey is not the only court addressing defamation on the Internet. In the federal courts, the Ninth Circuit Court of Appeal recently held that bloggers are entitled to the same First Amendment protections as journalists with respect to defamation. Accordingly, plaintiffs must prove that the speaker was negligent when publishing the false statement.

“The protections of the 1st Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities,” the appeals court held. “In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue—not the identity of the speaker—provide the First Amendment touchstones,” the court added. While other federal courts have reached a similar conclusion with regard to other types of individuals, this was the first federal appeals court level ruling with regard to bloggers.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

Grafix Avenger & Hoboken Horse Defend Free Internet Speech