A lawsuit intended to unmask the blogger known as “Orthomom” has failed, preserving a closely guarded secret of the online world.

Former Lawrence School Board trustee Pamela Greenbaum, once a frequent target of commenters on the site, filed suit against Google, which hosts the Orthomom blog, seeking the blogger’s name. Her intent, she said, was to file a lawsuit directly against the writer of the blog, who she claimed had called Greenbaum a bigot and anti-semite.

New York State Supreme Court Justice Marcy Friedman disagreed, writing in an eight page decision dated October 23, 2007, that, “The relief sought by Greenbaum, on the eve of a school board election, would have a chilling effect on protected political speech.” The judge also found that a commenter on the blog, not the blogger, had used the term bigot which, in any event, the judge found, was protected speech.

  Some bloggers say that Google stood up for the privacy of their users this time, as opposed to another recent case in India that made news. The blogger called Orthomom herself sees things a bit differently, writing a piece on the court ruling in the Jewish Star (my emphasis):

If it hadn’t been for a tip from a concerned reader, the case quietly filed against Google by Pamela Greenbaum to have me unmasked might have been over before it started. One day I’m happily blogging along between carpool runs, the next I’m looking for a good First Amendment lawyer. And it was a good thing I managed to procure once, as I soon found out that Google, Inc. was not prepared to do much in the way of defending me against the false and frivolous claims presented by Ms. Greenbaum and her attorney.

 Orthomom adds that the US Supreme Court had ruled before that anonymous free speech must be protected. “It is crucial to the free exchange of ideas, whithout any fear of reprisals or retribution for holding opinions that are potentially unpopular,” she says.

[Thanks Tadeusz Szewczyk!]

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Manhattan Supreme Court Justice Marcy Friedman equated ex-Lawrence school district (Nassau County, Long Island) board member Pamela Greenbaum’s request for those identities as one that would go against protected speech. The Law.com report said Friedman ruled against Greenbaum’s request for the identity of blogger ‘Orthomom’ and commenters on that blog.

"The relief sought by Greenbaum, on the eve of a school board election, would have a chilling effect on protected political speech," Friedman wrote in her opinion.

Google had agreed to release the information to Greenbaum, provided Orthomom consented to that disclosure. Instead, Orthomom, identified as an Orthodox Jew and a mother of five, intervened to stop that from happening.

Orthomom objected to Greenbaum’s stance on the use of public funds to teach private school classes. Blog commenters called Greenbaum a ‘bigot’; Greenbaum lost the subsequent election.

"Greenbaum’s defamation claim against Orthomom reduces to the insupportable assertion that Orthomom implied that Greenbaum is an anti-semite merely because Orthomom disagreed with Greenbaum’s position on the use of public funding for a program that could have affected the Orthodox Jewish community," Friedman wrote.

Though Google’s service, Blogger, was at the core of the dispute, their legal counsel did not comment further on the case, according to Law.com.

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Google Asked To Reveal Blogger Identity

And Google says they’ll do it, too, if the court says so, at a cost to the petitioner of $75 per hour. "Orthomom," the blogger in question, has until April 5 to file an objection.

The full details of this case are not so interesting – it’s a local school board cat fight. As the son of two public school teachers, I can speak from experience that these things, more often than not, devolve into bloodthirsty, political cheap shots. So I’ll spare you the background.

But the case again brings up the important question of what constitutes libel, the limits of free expression, and the right of anonymity. More specifically, it addresses these issues as they pertain to blogs, forums, social networks, and websites.

An important fact up front is that Orthomom made none of the questionable comments. Yet, Pamela Greenbaum, the offended school board member is seeking to have her identity revealed as well, in order to file a defamation lawsuit.

Greenbaum is petitioning Google to release data and/or printouts identifying the person responsible for the blog, including registration records, renewal, and IP addresses, and also data identifying the person(s) attributed to "Anonymous."  

On January 11, 2007, following a heated local debate involving public and private schools, some of the Long Island Orthodox Jewish community, 300,000 of which it is claimed follow Orthomom’s blog, began hurling insults directed at Greenbaum.

These insults included anonymous statements like:

_{Pam Greenbaum is a bigot and really should not be on the board.}

greenbaum is not to be believed

If history is a guide, She will make it a dirty campaign, so be prepared.

Pam Greenbaum, refusing to ever agree with an Orthodox Jew, now opposes protecting children.

Orthomom and her attorney have put forth a few arguments against Greenbaum’s demands, not the least of which is that Orthomom herself never made the comments, and that, as a provider of an online forum, she is protected from actionable third-party comments by the oft-cited Section 230 of the US Code.

In a subsequent blogpost, Orthomom defends herself this way:

The bottom line is that an anonymous commenter calling someone a "bigot’ in an an anonymous forum is simply not defamatory… 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".

And it’s difficult to prove malice, if the statement is an opinion, which everyone, in the US at least, is entitled to. For precedent, let’s look at an opinion statement as it has been questioned in the past. There are a number of words to examine, like "ugly" or "racist," but the host of the blog Krum As A Bagel wins the prize for libel research with a legal explanation of "dumb ass":

A statement that the plaintiff is a "Dumb Ass," even first among "Dumb Asses," communicates no factual proposition susceptible of proof or refutation… depending on context, it may convey a lack less of objectively assayable mental function than of such imponderable and debatable virtues as judgment or wisdom.

Here defendant did not use "dumb" in isolation, but as part of the idiomatic phrase, "dumb ass." When applied to a whole human being, the term "ass" is a general expression of contempt essentially devoid of factual content. Adding the word "dumb" merely converts "contemptible person" to "contemptible fool."

Plaintiffs were justifiably insulted by this epithet, but they failed entirely to show how it could be found to convey a provable factual proposition. … If the meaning conveyed cannot by its nature be proved false, it cannot support a libel claim.

So yes, you can, legally call someone a dumb ass, or pretty much any other vague insult.

Paul Alan Levy, attorney for Orthomom, probably says it best though, as he pushes for dismissal (which most seem to think is likely):

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.

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.

Which, I take to mean, there will be a countersuit. Should be interesting to watch.