Vivian Paige and Eileen Levandoski were the first Virginia bloggers to report on the rather disturbing actions of Norfolk (Va.) Vice-Mayor Anthony Burfoot against a blog that was critical of his candidacy for City Council:
A judge Wednesday forced the removal of a website attacking Vice Mayor Anthony Burfoot and the city’s treatment of downtown clubs.
Circuit Court Judge Charles E. Poston ordered an immediate removal of the website May4thCounts.com, stating that other legal action “is not adequate under the particular circumstances of this case.”
GoDaddy.com, the site’s host, removed the content later in the day.
The website appeared last week, about a month before City Council elections. Burfoot, a target of the website, brought the suit in Circuit Court.
Burfoot said he wants to discover the site’s anonymous author or authors and sue for slander. “This is just an attempt to try to destroy a person,” said Burfoot, who is seeking a third term on the council.
Norfolk City Attorney Bernard Pishko, who represented Burfoot, said he found the site to be “slander on the whole community.”
The site mentioned city officials, the Bar Task Force and Burfoot’s campaign supporters.
After you do, ask yourself how Judge Poston’s decision can possibly be squared with the Supreme Court’s decision in New York Times v. Sullivan:
The Court held that a public official suing for defamation must prove that the statement in question was made with actual malice, which in this context refers to knowledge or reckless lack of investigation, rather than the ordinary meaning of malicious intent. In his concurring opinion, Justice Black explained that “‘[m]alice,’ even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment.”
The term “malice” was not newly invented for this case, but came from existing libel law. In many jurisdictions, including Alabama (where the case arose), proof of “actual malice” (actual knowledge of falsity, or reckless disregard for the truth) was required in order for punitive damages to be awarded, or for other increased penalties. Since proof of the writer’s malicious intentions is hard to provide, proof that the writer knowingly published a falsehood was generally accepted as proof of malice, under the assumption that only a malicious person would knowingly publish a falsehood. In Hoeppner v. Dunkirk Printing Co., 254 N.Y. 95 (1930), similarly, the court said: “The plaintiff alleges that this criticism of him and of his work was not fair and was not honest; it was published with actual malice, ill will and spite. If he establishes this allegation, he has made out a cause of action. No comment or criticism, otherwise libelous, is fair or just comment on a matter of public interest if it be made through actual ill will and malice.” (p. 106)
Or, how his issuance of a Preliminary Injunction without the Defendant being given a reasonable opportunity to dispute the allegations of the Complaint could possibly be squared with the holding in the Pentagon Papers Case.
The answer, of course, is that they can’t.
There was insufficient evidence in the Complaint of the actual malice that Sullivan requires, and the case met none of the requirements needed to justify a prior restraint on speech.
Which is, perhaps, why Judge Poston took the somewhat unusual step of reversing himself the day after the Order was entered:
A Circuit Court judge reversed his own decision Thursday to shut down a website criticizing Vice Mayor Anthony Burfoot, clearing the way for the site to reactivate.
Circuit Court Judge Charles E. Poston reconsidered the day-old motion without legal prompting and concluded “that the temporary injunction should not have been granted.”
Judge Poston deserves credit for revisiting this decision so quickly and admitting that his initial order was a mistake, and the reasoning in his letter opinion (beginning on Page 2 below) is spot-on:
I am a bit disturbed that Burfoot was able to convince Judge Poston to issue the initial order in the first place, and that GoDaddy was so quick to comply with the Order without conducting their own investigation.
What is more profoundly disturbing, though, is that Vice-Mayor Burfoot was able to use the resources of the government to shut down one of his critics. That’s something that should never happen.