The following (bolded and italicized) is taken from Pamela Greenbaum's own affidavit
as presented to the court in her motion to retrieve information Google might have as to my identity. My comments and rebuttals are interspersed:
1. I am a resident of the State of New York, County of Nassau, and reside at [address redacted], Woodmere, New York 11598. I bring this petition for pre-lawsuit discovery so that I may identify that author of an anonymous weblog ("blog") and anonymous commenters who have used this blog to defame me by calling me a "BIGOT", implying that I am an "ANTI-SEMITE", and spreading lies about my character and actions.
And the misrepresentations begin.
3. I have no other means by which to identify the people who are responsible for the assault on my character that has been an ongoing feature of the website blog in question, known as "ORTHOMOM". Accordingly, I request that the Court Order the Respondents to disclose the information set forth in my attorney's affirmation, annexed hereto, so that the appropriate lawsuit can be filed against the responsible parties. In addition, a Court Order preserving the information is necessary because the blog is a voluntary endeavor that may be discontinued and deleted at any time by the anonymous "ORTHOMOM". I understand that this relief is authorized by the New York State Civil Practice Law and Rules, Sec. 3102.
Right, The blog comments could be deleted at any time. Just as they would have been had you e-mailed me, asking me to do so, Ms. Greenbaum. Unfortunately, now they will have to sit up there, due to this action. Too bad.
6. In commenting on local issues, "ORTHOMOM" and her readers in the comments have posted false, slanderous and defamatory statements anout me alleging among other things, that I am a "BIGOT" and an "ANTI-SEMITE" for my positions advocating against the use of public school district funds for private school interests and other outside interests beyond what is allowed by law. The most recent of these postings was written by "ORTHOMOM" and posted on January 11, 2007; the commenters' posts are undated (EXHIBIT "A").
" and her readers"? That is a blatant, flat-out lie. "ORTHOMOM" has never
made any of the statements that have been attributed to her above regarding Ms. Greenbaum. Never said she was bigoted. Never said she was an anti-semite. NEVER.
7. In the January 11, 2007 article "ORTHOMOM" takes issue with my reservations about the legality of using school district funds and teachers to provide free extracurricular classes for private school students. "ORTHOMOM" wrote that my concern revealed an anti-semitic agenda, given that over fifty percent of the district's students attend private school, and the vast majority of those attend Yeshivas.
Really. Well. Let's look at Ms. Greenbaum's words as they were quoted in the post of mine that Ms. Greenbaum referenced, regarding private school students participation in public-school funded extracurricular activities:
Does Greenbaum, who has criticized numerous proposals by Mansdorf in the past, like the idea? “Why not?” she asked. ”They could do it now,” so long as public school teachers are not being paid public funds to teach non-public school students.
Did Greenbaum address in any fashion the legality
of the issue raised in this particular quote, as she claims she did when she recounts this exchange in her complaint? Nope. She flatly rejects the notion of paying teachers for private school student extracurricular activities out of hand, with no explanations or discussions of legality. Another blatant misrepresentation by Greenbaum.
Yet another good one is in how she characterizes my response. She says I "wrote that [her] concern revealed an anti-Semitic agenda, given that over fifty percent of the district's students attend private school, and the vast majority of those attend Yeshivas." Hmm. Would all of you like to see the actual comment that I made? Here goes:
Um...what? Unless I'm mistaken, there is no law against district private school students being taught on public school property by public school teachers. The reason such an arrangement generally does not occur is a matter of the choice private school parents make to send their children elsewhere to be educated. In this case, we are discussing the prospect of private school students receiving extracurricular education from public school teachers on public school property. There is no connection whatsoever to the religious education these students may receive in another venue during the school day. I just don't see how Greenbaum can object on principle to the concept of district children being taught by district teachers on district property. Anyone remember Super Sunday, the (now-defunct) program where district teachers were paid to provide extracurricular activities to private school students on public school property? That was legal. And if she's discussing her personal preference as opposed to some legal issue with Dr. Mansdorf's suggestion, then...wow. Way to make it clear that you have no interest in helping the private school community in any fashion.
Anyone see anything there that shows that ""ORTHOMOM" wrote that [Greenbaum's] concern revealed an anti-semitic agenda", as Greenbaum states in a sworn affidavit?? I never mention the phrase "anti-semitic" (or bigot, for that matter) in reference to Ms. Greenbaum. There is also nothing here that shows I even mentioned a word about which percentage of the district's students attend private vs. public school, as Ms. Greenbaum states as fact that I "wrote"? I think Ms. Greenbaum is writing in a bit too much between the lines here - and making up full sentences out of whole cloth, and putting these completely invented writings of mine into a sworn affidavit
. This actually is far worse than a simple misrepresentation. It's a flat out lie. Again.
In addition, this is about my stating my opinion on a public official's policies and actions. If said public official cannot see that this of all things should be well within my First Amendment rights, well, that it truly scary.
8. At some point after the January 11. 2007 article was posted, an anonymous commenter wrote that I am "BIGOT" because my position on the use of public funds runs contrary to the interests of local Yeshivas. Other commenters repeated and discussed this bigot label.
Greenbaum is really digging her own grave with this one. If she is asserting that her public policy led the anonymous commenters in question to call her a "bigot", then this is truly a case for the garbage bin. This is so clearly about Greenbaum's stated views on a public matter, and the commenter's opinion in response to those views clearly fall under free speech protected by the First Amendment.
9. I was horrified to discover that my legitimate concerns about the use of public funds were the springboard for a widespread discussion about me being a "BIGOT". I was even more horrified when I discovered the blog reported over 300,000 visitors!
Right. That's why you never contacted me privately to ask me to remove the offending comments. You were so horrified that you went to court, ensuring that the comments would not be able to be deleted so as not to destroy evidence. You also ensured, by placing this story in the NY Daily News, that far more people would read the comments which so horrified you.
10. The article and the comments remain on the internet for all to see up to the present time.
Again, had you contacted me, I might have taken them down. Now I am in a situation where if I do so, I can be accused of destroying evidence. At this point, it's far safer for me to leave the comments in place.
11. I believe I have a valid claim against the anonymous writers who are responsible for spreading these unfair lies but without the requested information there is no way for me to find out who is responsible and to bring a lawsuit. Accordingly, I request the Court's assistance in directing the Respondents to produce information containing the identities of those responsible.
Now here's the crux of the matter. The bottom line is that an anonymous commenter calling someone a "bigot' in an an anonymous forum is simply not defamatory (or, as a matter of fact, in any forum, as Krum points out here
). The statement is clearly one of opinion, not fact, and it is further tempered by the fact that an anonymous commenter is not considered a credible source by the vast majority of readers. In addition, the bar is even higher to prove a statement as defamatory when one takes into account that Ms. Greenbaum is a public official, as the commenter would have had to show malice - which is legally defined as "falsity or reckless disregard of the truth". I would hardly think that within the context of the comment I quoted from Ms. Greenbaum in the January 11, 2007 post, that type of malice could be proven by any stretch of imagination or legal posturing.
Then there's the really sticky point that Ms. Greenbaum is looking to have Google provide her with my identity, but based only on my commenter'
s statements and nothing that I myself
said at all. (Of course, Ms. Greenbaum is trying to make the case that the offensive comments were made in my name, but I think we all have sufficient proof at this point that her claim as to that is completely
fabricated). Knowing that, Ms. Greenbaum's case weakens further still, as Section 230 of Title 47 of the United States Code (47 USC § 230)
makes it quite clear that blog hosts are protected from liability against claims arising from comments left by a third party on any site they might host. Quite the slam dunk.
Another point that Ms. Greenbaum and/or her supporters may not have considered is the risk of their getting hit right back. Recently, a group of anonymous bloggers in a similar case (aside from a difference that in this particular case, I am not even the party who made the allegedly defamatory statements, which makes my case even stronger), filed a SLAPP motion against the party who was looking to unmask them, and the plaintiff was found liable for the anonymous bloggers' full legal fees. The lawyer in that case noted:
"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 about the misconduct or corruption of big companies or public figures," said Paul Alan Levy, the Public Citizen attorney who filed the motion. "Those who want to intimidate their critics with the threat of identification, but who have no real basis for suing, should learn from this case that they cannot file suit and then expect to withdraw if the critics are ready to fight back. Companies and powerful individuals who try this trick should be prepared for the financial consequences."
Another funny little tidbit is in the part of the motion written by Greenbaum's attorney:
12. This application also seeks a Temporary Restraining Order to prevent the Respondent from disposing of, altering, and/or modifying, records regarding the blog and commenters so that the evidence is properly preserved.
followed immediately by:
13. This matter is brought on by Order to Show Cause since time is of the essence. Every day that the defamatory material remains on the internet for all to see, Petitioner is harmed and continues to be harmed..
Um, Mr. Adam B. Feder, Esq.? Perhaps you should make up your mind. Do you want me to keep the darn comments up so badly you are trying to slap a retraining order on me - or do you want the "defamatory material" down as fast as possible because "time is of the essence".
Now that I have taken this case apart, and putting all of the legalities aside, I have a more pressing issue with this development. When I first received notice of this motion, I thought Ms. Greenbaum was simply displaying some awfully bad judgment or had received some pretty bad advice in actually taking this litigious approach over such a mild example of offensive commenting. After all, she is a public figure, and a defense I would expect to see from the vast majority of public figures in the face of such a mild insult from an anonymous commenter is either ignoring the comment, or making a statement that explains the offending comment to be erroneous or misguided. I mean, an elected official's constituents are entitled to express their opinions as to the way they feel said elected official does her job. But then I saw Ms. Greenbaum's actual filed statement. And I realized how much worse this actually is that it first seemed on its face.
How in the world does an elected official who expects to command the respect of her constituents put these falsehoods and blatant fabrications in a legal document, where disproving them in a court of law will be about as easy as it was here in this post? Is this the type of school board member we expect to present as a representative and role model to our students? Someone who would not hesitate to perpetuate falsehoods in a legal setting?
Quite shocking, actually.