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On Ben Domenech And Tucker Max

Much like Jeff Jarvis, I somehow missed the beginning and end of the story of The Washington Post's new Red America blog (though we did link to it), and the early retirement of its author Ben Domenech over allegations of past plagiarism.

If you're looking for criticism from the right you can start with Michelle Malkin and move on to Don Surber, JimK, and Dan Riehl - a compendium that wouldn't gain much from my two cents. No one is perfect, least of all bloggers, but his transgressions were well documented and his initial denials and attempts at explanations just dug the hole deeper.

What struck me about the whole affair is the initial hate-filled thrashing on the left, cheered on by powerful lefty bloggers who could hardly be characterized as squeaky clean. While, in the end, they found something substantive it was only by a scorched-earth approach, hunting his every utterance and mention for a collection of damaging items. Josh Trevino (a former colleague of Domenech's) summarizes the kind of anonymous (and non-anonymous) venom spewed at sites like Eschaton, Daily Kos, and Firedoglake, here and here.

And it's that part of the story that got me thinking about another case of a blogger in the news... Tucker Max. While Tucker Max may be to to blogging as Larry Flynt is to journalism, he is the author of a widely read series of stories of drunken debauchery. The forums at TuckerMax.com have engaged in some bashing of Anthony Dimeo III, a New Jersey blueberry heir whose Renamity PR firm threw a New Year's Eve party in Philadelphia art museum that made national news when the bar ran dry at 10:00PM. The patrons weren't very happy and took out their frustration on some of the museum pieces...

As Philly Metro notes, Dimeo is suing Max, in part based on the Violence Against Women and Department of Justice Reauthorization Act.

DiMeo is suing Max for more than $1 million.


Weisberg said the comments on Max's Web site aren't protected by the First Amendment under a law passed by Congress last year that outlaws anonymously posting or e-mailing messages intending to annoy.

As Declan McCullagh noted in January posting annoying Web messages or sending annoying e-mail messages without disclosing your true identity is now a federal crime.

In Max's case, it appears that DiMeo's lawyer is misusing the law in a civil action, as it's federal crime, not the basis for a libel lawsuit.

What is interesting is that in the Domenech case the anonymity of the comment section at Eschaton and the hidden identities of diarists at Daily Kos made many of those who pursued him (often profanely and scurrilously) potential lawbreakers.

A lot of really nasty stuff that would appear to fall squarely within province of the expanded law was published by anonymous sources. Imagine the chaos in the blogosphere that would ensue if a federal prosecutor decided to look into those anonymous publishers...


Note: In order to prevent the inevitable misreading and/or misquoting this piece is bound to produce, let me state very clearly that I'm not advocating for criminal investigation of anyone in the case of Ben Domenech. I'm simply looking at a new federal law which has the potential to very negatively affect the blogosphere if it is used as it was intended.

I believe the law, as amended, is ridiculous. The vague use of "annoy" invites its misuse. Perhaps it will continue to be unenforced by lack of application, but more likely it will have to be struck down by a court. In that case some poor schmuck (or collection of schmucks) will bear the burden of fighting a federal criminal indictment. For now that schmuck appears to be Mr. Max, but it's just a matter of time before it's a blogger or a commenter.


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Comments (6)

The law seems not to distin... (Below threshold)
Dan S:

The law seems not to distinguish between "anonymously" and "pseudonymously" too. If a poster always uses the same, relatively unique pseudonym for posting, would the law consider that "anonymous?" Considering how easily the blogosphere has already shown that pseudonyms can be linked to real identities, I think it rather WRONG to consider a pseudonym to be the same as anonymous. But I bet that is the way it will trend at least in any early cases based on this law (which is a BAD law).

Hmmm.My biggest gr... (Below threshold)
ed:

Hmmm.

My biggest gripe over this plagarism scandal is that a lot of Rightwing bloggers piled on as well without giving Domenech a chance to respond.

Frankly there's a certain level of cannibalism on the part of many Rightwing bloggers that's hidden behind the facade of "ethics", which evidently excuses anything and everything as long as you can be righteous about it.

WHY? For the PARTY!---The w... (Below threshold)
bryanD:

WHY? For the PARTY!---The whole premise of red-state/ blue-state, Democratic/ Republican and left-wing/ right-wing is inheritly flawed since such over-arching descriptions become self-identifiers instead of a consistantly applied philosophy, though "philosophy" is what led to their personal adoption in the first place.(For the Rubes as opposed to the Adepts---that's another story). Thus, the tenets most closely held are trumpeted and those dissonate tenets sublimated to reinforce the first.(Admitting a confluence with the opposite party would nullify the grand schema of THE party) It's little suprise then that , as if to over-compensate in their own mind, extreme positions within one's own comfort zones are staked-out and vigilantely protected. Protected PROACTIVELY. Within one's OWN party. Ex: Trent Lott was forced to resign by REPUBLICANS over-compensating for POTENTIAL accusations of racism. Self-defeating, no? The result? A laundry list of taboo topics behind a few talking points , preaching to the choir while the whole world passes by. And all in the name of (ARTIFICIAL) UNITY.(suckers!) P.S. Examples in the blogosphere: the back-stabbers at dKos vs. the Lobodomites at Blogs for Bush(homo?dunno.)

(1) Thanks for the link... (Below threshold)
Sean:

(1) Thanks for the link

(2) Really top-notch synthesis here. I've been immersed in both stories for the past week, and never made the connection. Good stuff.

Setting aside the federal prosecution (which, though unlikely, might be possible for a politically motivated prosecutor), there's also the question of what would happen if Ben (who I understand has some financial resources) decided to pursue a defamation lawsuit against Atrios and certain unnamed John Does, and then filed discovery seeking to obtain the names of Atrios's posters. There's actually a fair amount of caselaw out there going both ways, and that uncertainty shows just how damaging this potentially could become.

You just accused me of spew... (Below threshold)

You just accused me of spewing "anonymous venom." I do not need a new law for this to be considered libel.

Of which you are now guilty. Your moral high ground is a farce.

"I do not need a new law fo... (Below threshold)
Sean:

"I do not need a new law for this to be considered libel."

Actually, you kind of would. Saying someone "spewed venom" in a post might not be a pleasant characterization, but it almost certainly is a statement of opinion, not of fact.

FWIW, nothing in your post itself is probably libellous either. Nor are the vast majority of your comments, though some (eg "would it be fair to ask Ben if his dad is still in the mafia? Is Ben the "Christopher Soprano" of the Post?") arguably come close. That's what is so troubling about the suit.




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