Who's A Rat?

Brian, Are you one of the accused?? Let's see what happens when someone gets killed over this site and it is found that the killer used this site before the killing. I say throw Sean or whatever his name is (COWARD, can't use real name on TV, scared..bully on the playground)under a bus in the center square. On another note, this makes Boston look bad. This is a prime example of terrorism on our on soil by one of our own. Sad state of affairs....so Brian once again what have you done?????????????????????????????????

Giselle

Very Interesting....

Brian, after all I think you're right, but the case you refer to isn't really on point. The government in that case wasn't alleging that the guy's website was false or defamatory - they just wanted it banned because of the pendency of his trial. In the case of whosarat.com, the issue is defamation, so I'm not suggesting that anyone would necessarily be able to censor the website, but the website operator might have to pay damages if he knowingly published falsehoods and those falsehoods caused someone actual harm (e.g., if their reputation were ruined and couldn't get a job or something). See White v. Blue Cross and Blue Shield of Mass., Inc., 442 Mass. 64 (2004) ("To prevail on a claim of defamation, a plaintiff must establish that the defendant was at fault for the publication of a false statement regarding the plaintiff, capable of damaging the plaintiff's reputation in the community, which either caused economic loss or is actionable without proof of economic loss").

The reason I think you're right that the guy who runs whosarat.com couldn't get sued, though, is not because of his free speech rights per se, but but because Congress has passed a law specifically giving broad protection to people who publish the letters or other work of third parties over the internet. The law is 47 USC s. 230(c), and federal courts have held that it applies to ISPs, see Ben Ezra, Weinstein, & Co. v. America Online Inc., 206 F.3d 980, 985-86 (10th Cir.2000) (this makes perfect sense, I think, because the ISPs really have no control over the content) and, more importantly, to editors of internet newsletters who publish the e-mails of others. Batzel v. Smith, 333 F.3d 1018, 1026-27 (9th Cir.2003).

Josh,

The mall was mentioned because it is a place where large groups of people gather a park beach etc would also make my point, the website is no different from going door to door with a picture and profile of a persons accuser only the Internet is todays technology. Whosarat does not participate in any part of the posting process, it is no different than this board, would this webmaster be responsible for something we said in our message postings? no they would not each person is responsible for his own message. Here is the federal case law that protects the site.

1 of 2 DOCUMENTS

UNITED STATES OF AMERICA v. LEON CARMICHAEL, SR.

CRIM. ACTION NO. 2:03cr259-T

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

2004 U.S. Dist. LEXIS 13742

July 22, 2004, Decided

PRIOR HISTORY: United States v. Carmichael, 2004 U.S. Dist. LEXIS 13675 (M.D. Ala., July 20, 2004)

DISPOSITION: [*1] Request for protective order denied.

CASE SUMMARY:

PROCEDURAL POSTURE: Defendant was charged with drug conspiracy and money laundering. Shortly after his arrest, defendant set up an internet website and newspaper advertisement related to the case. The Government renewed its motion for a protective order directing defendant to remove the website from the internet. The government's motion was denied, and it appealed.

OVERVIEW: An exact reproduction of the website as it existed as of late April 2004, the third version, appeared as a full-page newspaper advertisement in a local weekly newspaper. The Government's requested relief went beyond the internet, as it asked the court to restrain defendant from taking any action that would harass, intimidate, or threaten any witness or prejudice the proceedings in the case, including, without limitation, placing the photographs or personal information of any prospective witness or informant on a poster, advertisement, or website. The Government indicated that its concerns about the website would apply equally to newspaper advertisements containing the same content. Defendant's website and newspaper advertisement were constitutionally protected speech because they fit within neither the "true threat" nor the "incitement" exceptions to the First Amendment's protection. Also, the Government did not show that its proposed protective order was the least restrictive means of eliminating the possible effect on jury members.

OUTCOME: The motion was denied.

COUNSEL: For Leon Carmichael, Sr. aka Beaver Leon Carmichael, Defendant: Amardo Wesley Pitters, A. Wesley Pitters, P. C., Montgomery, AL. Lisa Monet Wayne, Denver, CO. Mary Elizabeth Anthony, Anthony & Pratt LLC, Birmingham, AL. Ronald Wayne Wise, Law Office of Ronald W. Wise, Montgomery, AL. Stephen Roger Glassroth, The Glassroth Law Firm, PC, Montgomery, AL.



For United States of America, Plaintiff: A. Clark Morris, U.S. Attorney's Office, Montgomery, AL. Matthew S. Miner, U.S. Attorney's Office, Montgomery, AL. Stephen P. Feaga, U.S. Attorney's Office, Montgomery, AL.

JUDGES: Myron H. Thompson, UNITED STATES DISTRICT JUDGE.

OPINIONBY: Myron H. Thompson

OPINION:

SUPPLEMENTAL ORDER

Defendant Leon Carmichael, Sr. is charged with drug conspiracy and money laundering. Shortly after his arrest, Carmichael set up an internet website related to this case. The government argued that Carmichael's website is threatening to witnesses and government agents [*2] and renewed its motion for a protective order directing Carmichael to remove the website from the internet. In an order issued two days ago, on July 20, 2004, the court denied the government's renewed motion. United States v. Carmichael, F. Supp. 2d , 2004 U.S. Dist. LEXIS 13675, 2004 WL 1616446 (M.D. Ala. 2004) (Thompson, J.).

The dispute in this case is not limited to the internet, however, and the court writes separately to address the government's motion as it applies outside of cyberspace. An exact reproduction of the website as it existed as of late April 2004 (the third version) appeared as a full-page newspaper advertisement in the Montgomery Westside Weekly, a local weekly newspaper that targets primarily the African-American community; n1 also, there is no reason to doubt that the advertisement has appeared again repeatedly in that paper and in other similar papers. The government's requested relief, therefore, went beyond the internet; the government asked the court to restrain Carmichael "from taking any action . . . that would harass, intimidate, or threaten any witness or prejudice the proceedings in this case, including, without limitation, placing the [*3] photographs or personal information of any prospective witness or informant on a poster, advertisement, or website." n2 Similarly, at the May 21, 2004, hearing, the government indicated that its concerns about Carmichael's website would apply equally to newspaper advertisements containing the same content.

n1 See Order, filed May 7, 2004.

n2 Government's renewed motion, etc., filed April 27, 2004, p. 18 (emphasis added).



The court's reasoning regarding Carmichael's website applies with equal force to his newspaper advertisements. Accordingly, to the extent that the government's renewed motion includes a request for an order that Carmichael cease publishing the content of his website as newspaper advertisements, the motion is due to be denied.

Carmichael's website is constitutionally protected speech because it fits within neither the 'true threat' nor the 'incitement' exceptions to the First Amendment's protection. Carmichael, F. Supp. 2d. at , 2004 U.S. Dist. LEXIS 13675, 2004 WL 1616446, at *. [*4] There is no reason to reach a different conclusion regarding Carmichael's newspaper advertisements because the First Amendment analysis does not turn on the medium involved. The court explicitly declined to find the fact that a website was at issue constitutionally significant. 2004 U.S. Dist. LEXIS 13675, 2004 WL 1616446, at *. Carmichael's newspaper advertisements are neither a 'true threat' nor an 'incitement' under the First Amendment.

The court also held that it could not order Carmichael to take down his website because the government did not meet its burden to show that a prior restraint on Carmichael's speech rights was warranted. Carmichael, F. Supp. 2d., 2004 U.S. Dist. LEXIS 13675, 2004 WL 1616446, at *. The government did not show that its proposed protective order was the least restrictive means of eliminating the website's possible effect on jury members. 2004 U.S. Dist. LEXIS 13675, 2004 WL 1616446, at *. The same is true of Carmichael's advertisements. A juror or potential juror is more likely to come across Carmichael's newspaper advertisements inadvertently than to come across his website inadvertently, so [*5] a jury instruction not to view the advertisements will be somewhat less effective than an instruction not to view the website. Nonetheless, voir-dire questions and clear jury instructions will adequately address any possible impact that Carmichael's newspaper advertisements might have on the jury. Second, the government did not show that the website posed a serious and imminent threat to its witnesses and agents. 2004 U.S. Dist. LEXIS 13675, 2004 WL 1616446, at *. The government has not shown that the newspaper advertisements pose such a serious and imminent threat.

Finally, the harm posed by the website did not warrant restricting Carmichael's Fifth and Sixth Amendment right to investigate his case. Carmichael, 2004 U.S. Dist. LEXIS 13675, 2004 WL 1616446, at *. Not only is the same true in the case of Carmichael's newspaper advertisements, but his Fifth and Sixth Amendment interest is actually entitled to more weight here. Carmichael's website is hard to find on the internet even if one is looking for it, and it is very hard to imagine that someone could stumble upon his website by accident. Thus, to the extent that there exist people [*6] who have material information beneficial to Carmichael and who would be willing to share that information with him but do not know about this case or do not already know how to contact Carmichael, it is unlikely that the website will reach those people. On the other hand, Carmichael's newspaper advertisements are more likely to attract the attention of a person who has--perhaps without being aware of it--material information useful to Carmichael's defense. Accordingly, the newspaper advertisements are more likely to lead to information, and this tilts the balance yet further in Carmichael's favor. n3

n3 Moreover, if the newspaper advertisements (which essentially reproduce the internet site) are allowable, surely the internet site is also.



Accordingly, it is ORDERED that the request for a protective order barring defendant Leon Carmichael, Sr., from publishing his website as a newspaper advertisement, which request was included in the renewed motion for a protective order filed by the government on April 27, 2004 (doc. [*7] no. 181), is denied as well.

DONE, this the 22nd day of July, 2004.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

Brian, you make a good point about the website's lack of direct responsibility, but I think you're mistaken on the legal point. I should admit that my drunk driving example is not so accurate, but your mall example is lacking too: a mall provides space for retail, it doesn't sell itself as a place where folks can go to overhear gossip, nor does the mall do anything to disseminate the message (i.e., they don't broadcast it over the PA or print it up on flyers). Whosarat, by contrast, is in the business of providing a forum for spreading information about informants - it's what they do, and they are actively publishing the information to a broad audience. The fact that the site doesn't edit the posts doesn't necessarily matter - it's no different than if a newspaper got an anonymous story in the mail and published it without looking at it. Whosarat can make a disclaimer that they don't vouch for their content, but of they're disseminating information that's so obviously false that they really should have noticed, they might still be on the hook for libel. (There's no first amendment protection for knowingly publishing a false statement.)

It's about time, that type of site should have been one of the first types of websites to hit the net, everyone has a right to investigate their accusers anyway they see fit. People also have a right to free speech and yes that does include the topic of informants. I would like to comment on the post by Josh, Whosarat.com is no different from a message board, the websites "members" post the profiles themselves, whosarat.com takes no part in the posting of profiles they only provide the forum. So your comparison of tossing back 5 pints makes no sense, Another words would Ford be responsible if you tossed back 5 pints and hit someone? after all they provided the forum (vehicle), The important thing to understand is that when a member makes a post it is added to the database immediately, the whosarat staff take no part in the posting of profiles, it is the same as if you were to talk loudly in a mall, near a group of people about an informant, would the mall be responsible for what you said? NO.

who's a rat used for revenge? who'da thunk it.

Sean Bucci may want to read up on libel law. His site's disclaimer boldly says, "In no event shall this web site and this web site owner be liable to a user or third party for any slander, libel, damages, injuries or death resulting from the use or inability to use the information or materials in this site." That's like tossing back five pints before driving and putting a bumper sticker on your car that says, "In no event shall damages caused by my drunkenness be my fault."