Defrocked Rabbi Cannot Violate Anonymous Bloggers' First Amendment Rights, Public Citizen Tells Court
Subpoena to Reveal Writers' Identities Is Unconstitutional
All American Patriots
July 9, 2006
Washington, D.C. – A rabbi's petition to disclose the identities of anonymous bloggers who wrote on the Internet about his alleged sexual misconduct should be denied, Public Citizen said in motions being filed today in the California Superior Court for Santa Clara County.
The plaintiff, Orthodox rabbi Mordechai Tendler, who served a congregation in New Hempstead, N.Y., was accused of sexual abuse and harassment by some of the women whom he had been advising. The controversy garnered much mainstream media attention when Tendler was expelled from the Rabbinical Council of America in March 2005, sued by one of his accusers in December 2005 and dismissed from his rabbinical post by his congregation in 2006.
Many Internet blogs also covered the investigation of Tendler's alleged misconduct. In an effort to fight back against the accusations, Tendler has sought to reveal the identities of four bloggers who wrote about his case on the following Blogspot sites: www.rabbinicintegrity.blogspot.com , www.jewishsurvivors.blogspot.com , www.jewishwhistleblower.blogspot.com and www.newhempsteadnews.blogspot.com .
Tendler filed a petition in February 2006 in Ohio to identify three of the bloggers, stating that he had been the subject of false and defamatory statements but identifying no particular statements and no evidence that the postings were false, a requirement to prove defamation. After the Ohio court granted his petition, Tendler filed a new case in San Jose, Calif., in order to obtain enforceable subpoenas directed to Google, which operates Blogspot, compelling it to disclose information identifying four bloggers.
"Full First Amendment protection applies to communications on the Internet, and longstanding precedent recognizes that speakers have a First Amendment right to communicate anonymously, so long as they do not violate the law in doing so," the Public Citizen motion reads.
Public Citizen urges the court to adopt a test to balance the interests of a plaintiff who claims that his reputation has been tainted by Internet speech against the interest in anonymity of the Internet speaker who claims to have done no wrong, while making provisions for online speakers who post truly defaming or libelous comments about public and private figures. In addition, Public Citizen is filing a special motion to strike the California case under California's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute.
"The right to criticize anonymously on the Internet is a fundamental free speech right and an important tool for whistleblowers and consumers who speak out against big companies or public figures for misconduct or corruption," said Paul Alan Levy, the Public Citizen attorney who filed the motion.
Cindy Cohn of the San Francisco-based, non-profit Electronic Frontier Foundation serves as local counsel for Public Citizen.
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