Many Questions Left Unanswered in TX Supreme Ct. Refusal to Protect its Citizens from Corporate Censorship

Just in from: http://www.fortbendnow.com/news/645/texas-supremes-side-with-siennajohnson-deny-bid-to-seal-deposition


Supremes Side With Developer, Deny ACLU Bid To Seal Deposition
by Bob Dunn, Jan 28, 09:53 am



The Texas Supreme Court has ended a Missouri City man’s attempt to protect identities of anonymous posters to his web site forums, denying his petition for writ of mandamus without comment.

In denying his petition, the court left forum operator Matthew Feinberg’s key questions – whether Texans have a constitutional right to make anonymous postings on the Internet, and whether a web site forum operator can be compelled to reveal the identities of those posters – unanswered.

An attorney for Sienna/Johnson Developers, which opposed Feinberg and the American Civil Liberties Union of Texas in the case, said the petitioners were misguided in construing the matter as a First Amendment case.

“Sienna believes that the ‘right’ Mr. Feinberg’s counsel argues they are attempting to protect is not a right that is implicated by this case,” said John Keville of Howrey LLP. “The ACLU, through Mr. Feinberg, says they are trying to protect the identities of all the people who used Mr. Feinberg’s website, but Sienna has never sought this information.”

Last summer, postings on Feinberg’s forums, many anonymous, criticized Sienna/Johnson, developer of the Sienna Plantation community where Feinberg lives.

The developer also had been criticized during Missouri City Council meetings as the city considered the developer’s plans to add apartment units at Sienna Plantation. Chris Calvin, a community activist also living in Sienna Plantation, spoke out against the apartment plans several times, and posted criticisms of Sienna/Johnson on Feinberg’s forums.

In August, Sienna/Johnson filed a petition with the 240th District Court in Fort Bend County seeking to take sworn testimony in the form of depositions from Feinberg and Calvin.

In its petition, Sienna/Johnson said it and its employees “have been the subjects of false and disparaging statements, including malicious accusations of criminal conduct,” made anonymously on Feinberg’s web sites.

The petition also said Sienna/Johnson believed Calvin repeatedly posted on Feinberg’s web sites using multiple pseudonyms “to create the impression that large numbers of residents of Sienna Plantation and Missouri City oppose further development by Petitioner, and thereby affect Petitioner’s economic interest.”

Among other things, the petition asked that Feinberg produce “all documents concerning the identities and IP addresses for the registered users” of Feinberg’s web sites.

Despite opposition, and last-minute appeals by Feinberg’s attorneys, the two men were deposed.

Feinberg’s petition asked the Texas Supreme Court to order Fort Bend District Judge Thomas Culver to seal the record of Feinberg’s deposition and prohibit its use in any lawsuit the developer might pursue.

However, by the time the high court considered Feinberg’s petition, Sienna/Johnson already had filed suit against Calvin for defamation and business disparagement.

“The question Mr. Feinberg wishes to raise is whether he can be required to disclose the identity of anonymous web site users in a pre-suit deposition,” Sienna/Johnson noted in its response to Feinberg’s Supreme Court petition. “That question is moot because Mr. Feinberg appeared at his deposition and answered questions (and revealed only that he did not know any such identities).”

The high court apparently agreed.

“Sienna/Johnson is certainly pleased with this proper result, and the court’s quick disposal of the petition,” Keville said. “Their petitions and appeals having been denied in every possible venue, we hope that the ACLU’s barrage of court filings is now finally completed.”

“I am disappointed that the court did not address the constitutional issue, but hope that it does so in a future case,” Laura Hermer, Feinberg’s attorney, said after the ruling. “Given the widespread use of the Internet and the growing prevalence of Internet-related SLAPP suits, it’s probably just a matter of time.”

She referred to a legal tactic that has become known as Strategic Lawsuit Against Public Participation, in which an entity might attempt to blunt criticism against it by burdening opponents with the cost of a legal defense.

“In their repeated court filings, the ACLU has not been shy about its desire to make new law, but this is the wrong case in which to make it because the facts don’t fit,” Keville said. “Please keep in mind that the gist of Sienna’s complaint has nothing to do with whether one can find out the identity behind a screen name, much less the right to anonymous free speech.”

“This case is about whether Chris Calvin has a right to make up dozens of fictitious names to create the false impression of widespread support for his disparaging statements, his false facts, and his disguised opinions,” Keville said. “We believe such fabrications have harmed and continue to harm the community, and that is what the lawsuit is about.”

“The ACLU’s appeals and petitions are about something else entirely – their desire to make law, without regard for the real families who live in Sienna Plantation and at the expense of Sienna/Johnson.”


Comment: I wonder if this means that the complaints Keville and JDC filed against the ACLU and Matthew for frivilous appeal and/or sanctions (to silence them) were also refused?