Alan Kluger vs. Marc Randazza in Anonymous Blogger Free Speech Fight!

I've not been shy in my admiration for the clever, snarky wit and attendant legal and writing skills of internet warrior/trailblazer Marc Randazza.

(Note to Surfside city attorney Lynn "Rage Against the Bloggers" Dannheiser -- your hilarious funny confusing Marc with the Italian place Randazzo's in the Gables remains a kneeslapper -- keep 'em coming!)

As Popehat documents, it is also a fact that Marc happens to find himself in the middle of lots and lots of interesting cases.

Marc's latest finds him before Judge Cooke in an important battle to preserve the rights of citizen journalists to blog anonymously -- does that sound too high-faluting for the kind of crap that passes for content here on this humble, time waster of a blog?

Yes, it does.

(Tim Elfrink provides all the background here).

But Marc eloquently lays out the larger principles involved in his motion to dismiss:

Plaintiffs, a series of real estate holding and management companies, and their directors,
accuse DOE of publishing defamatory statements concerning their business practices and other dealings through Google's Blogger service. Blogger is a service that allows users to create their own web blogs, or "blogs," on which they can express their opinions on numerous issues. Some blogs are general interest, while others may address specific, local issues, such as problems within a community, political matters, or topics of concern to consumers. Users of Blogger who create content - themselves known as "bloggers" - have the option of publishing their writings anonymously, as DOE has done in this case. Plaintiffs sued DOE for alleged defamatory material in a blog located at www.rkassociatesusa.blogspot.com and for false advertising under the Lanham Act 15 U.S.C. 1125(a).1 Plaintiffs have subpoenaed Google for its records relating to DOE in an
effort to learn his true identity. Plaintiffs' request is improper, and implicates fundamental Constitutional protections.

Free speech is a central Constitutional value, and one of great historical significance. The Federalist Papers, for instance, were all written anonymously while being pointedly critical of the policies and leaders many people championed during America's move toward adopting a written constitution. The United States Supreme Court has further sanctified anonymous speech in an honest and open society through decisions including McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) and Talley v. California, 362 U.S. 60 (1960). See also City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (noting that "the identity of the speaker is an important component of many attempts to persuade").

With these principles as a backdrop, courts have grappled with the First Amendment significance of subpoenas used to unmask anonymous speakers who speak via the internet on message boards, review services and other forums. Here, Plaintiffs' Complaint demonstrates no basis upon which a defamation or false advertising action can proceed, and they have not made the required prima facie showings.

Marc's adversary is longtime fave Alan Kluger, ably assisted by Todd Levine, who warned Tim over at New Times to be very very careful -- did I mention careful? about what he writes concerning the case: 

In the meantime, Levine has strong words for anyone who would consider writing about Katz's lawsuit. "I'd ask you not to publish anything about this," he says. "Even pointing people toward that blog could constitute further defamation."

How precisely?

Or will that just lead to another interesting Randazza defense?

Alan's vigorous response to the motion to dismiss is here, in which he describes Marc's argument as "specious" and his client's blog postings as "vile and defamatory per se."

To which I simply say -- carry on gentlemen, the yacht case can't continue forever!

Tell Office Supply to Order More Post-Its -- Mr. Levine Is About To Head Home!

I have long contended that concerns about "texting while driving" are really concerns about "other people texting while driving."

I say this because every morning and evening on my way downtown I see just about everyone texting and checking their emails, deep in phone conversations, looking at websites, watching movies(!) and typing away like maniacs.

I don't personally object to this practice, assuming you are competent at performing more than one task at the same time and know when to focus more on the road at the appropriate moments.

Of course we know many people who fail at this, and who fail at driving even without any distractions whatsoever.

But not Kluger Kaplan partner Todd Levine, who is all about the driving while post-its:

It’s 7 p.m. and Todd Levine saunters out of his office, opens his car door, flips on his Bluetooth, and starts his nightly routine of sticking Post-It notes to his dashboard. As he heads north on the highway, one by one he peels off the Post-Its with phone numbers scribbled on them and makes the return calls.

 “I conduct my business and by the time I hang up, I’m in my driveway,” Levine says.

Levine, a Miami trial lawyer, has a similar routine in the morning. “By the time I get to my office, I have done at least 45 minutes to an hour of work.” 

Question for Cindy -- was Todd really "sauntering" out of his office?

Maybe he just had a lot of post-its on his fingers he needed to put on his dashboard? 

Actually, Todd's driving habits are fairly routine, nonobjectionable even, and we've all seen way way worse.

I'd like to see Todd incorporate his post-it practice into his official firm bio:

Todd uses his analytical skills and creativity to find the winning angle other lawyers might overlook. Sometimes that means honing in on that one key piece of buried evidence that will make or break a case. Other times, that means formulating the one legal argument that will give clarity to an otherwise murky dispute.  Even more other times, it just means picking the right post-it and knowing how to Bluetooth successfully without killing anybody on the way home.  This is not as easy as it sounds.

See, I really should do more law firm marketing.