Bloggers Bash ‘Old Media’ Take on Libel Suit

BRATTLEBORO — Small-town rumor mills have always churned out juicy gossip. But when these often-personal grumblings make their way into the local media, they can sometimes turn into lawsuits. And while traditional newspaper editors are well acquainted with the line between lively and libel, bloggers typically aren’t. A lawsuit filed recently against the popular website iBrattleboro.com [1] suggests citizen journalists may have to think twice about letting it rip.

The lawsuit alleges iBrattleboro and its owners Lisa LePage and Christopher Grotke are responsible for defamatory comments posted there by user David Dunn, who is also named in the suit filed on November 16 in Windham County Superior Court. The 4-year-old website, which is frequently touted as a model for citizen journalism, provides an outlet for residents to post breaking news stories or local events — a sort of online town crier.

The suit’s plaintiff, Effie Mayhew, worked with Dunn at a Brattleboro-based community emergency-service agency known as Rescue, Inc., where Dunn served as executive director. The comments are part of what has become a very public spat over Dunn’s exit from his post.

Dunn was responding to what he interpreted as Mayhew’s public criticism of his leadership skills. According to the lawsuit, on September 30 Dunn posted comments alleging Mayhew took part in an adulterous on-the-job affair.

Mayhew says it isn’t true. “As a result of the defamation” the lawsuit claims, she “has received anonymous telephone calls using the foulest and filthiest language conceivable . . . Not only has she been deemed a ‘whore’ and a ‘slut’ but a ‘home wrecker’ . . .” The suit seeks unspecified damages.

Dunn stands by his claims. His version of the story, which is also filed in Windham Superior Court, reads like soft-core porn. In it, Dunn provides specific examples of Mayhew’s alleged on-the-job canoodling, and outlines a party he attended where Mayhew “became intoxicated, took off all her clothes, paraded around the house in front of multiple children, including her own minor children, and then jumped into the hot tub on the deck.”

Other than a brief posting on iBrattleboro, LePage and Grotke aren’t talking. “What we can say is that we believe the suit to be without merit and will be taking appropriate legal action,” the couple wrote November 27 on iBrattleboro. LePage and Grotke have since filed a motion asking that the case be thrown out of court. They also removed Dunn’s comment from the site.

Mayhew’s lawyer, Margot L. Stone, refused a request for an interview through a representative from her office, who also said Mayhew was not available for comment.

Indiscretions aside, the legal debate is about whether iBrattleboro, which doesn’t moderate comments, should be held responsible for an allegedly libelous web posting.

Not surprisingly, Vermont bloggers have strong opinions on the subject — and this specific case. IBrattleboro’s supporters argue the site will not be found liable for Dunn’s posting, citing Section 230 of the federal Communications Decency Act and established case law they said shields website operators from libel suits based on user comments.

Blogger David Ardia, who is director of Citizen Media Law Project [2] for Harvard Law School’s Berkman Center for Internet and Society, agrees. Ardia is a former assistant council for the Washington Post, where he provided pre-publication review and legal advice on First Amendment news-gathering.

In a November 28 blog posting, Ardia argued that CDA 230 clearly offers iBrattleboro immunity. “Generally speaking, the operator of the website will not be held liable for content that’s submitted by a third party,” he tells Seven Days. “There’s some very limited exceptions to that usually involving some extensive editing or changing of the comment . . . I don’t see any allegations in the complaint that Mayhew has filed that would make those exceptions applicable.”

Jim Maxwell, attorney for LePage and Grotke, questions whether Mayhew “has a leg to stand on.”

“Old media” has a different view. The Brattleboro Reformer published an editorial [3] about the iBrattleboro suit on November 30. On December 3, the Rutland Herald weighed in [4] — the same editorial appeared in the Times Argus on December 5. Citing disagreement among legal experts, all the newspaper editorials seemed to support Mayhew’s claim against iBrattleboro.

The case “hits at the center of a gray area in electronic law, and as such, may well wind up in the U.S. Supreme Court before all is said and done,” the Herald and Argus piece suggested. “In essence, [CDA 230] as it stands has created two classes of speech, with Internet speech protected in ways other forms of speech are not.”

The Reformer editorial noted that LePage and Grotke “are doing good work, but they are not immune to libel law. They unfortunately forgot an important principle that might have prevented this suit — a timely correction of false or defamatory information and a formal apology.”

Vermont bloggers have chalked up the newspapers’ reaction to “media envy.”

“This seems to be an opportunity for these folks to get their digs in,” says John Odum, who oversees greenmountaindaily.com [5], a left-wing political blog.

“Mainstream journalists, they’re still coming to terms with blogs, and this is something that lays bare the little bits of friction between these two content providers,” says Philip Baruth, a University of Vermont English professor and liberal blogger who publishes at vermontdailybriefing.com [6]. “It didn’t surprise me that both papers jumped on the opportunity to say, ‘You blogs have been having a high old time, but remember there’s a piper to pay.’”

“I’m sorry if the bloggers felt that this was an attack on them,” says Herald Editor Randal Smathers, who authored one of the editorials and describes himself as “a fan” of iBrattleboro. “I think there needs to be a level playing field.”

“Any medium should be held to the standards of accuracy,” adds Reformer Editorial Page Editor Randy Holhut. “If what gets published or what gets posted or what gets aired doesn’t meet the standards, then you’re legally liable for it.”

Ardia, Baruth and Odum agree the Herald’s prediction about the Supreme Court is highly unlikely and ignores the legal hurdles CDA 230 presents. There is no “gray area” in this case, they say.

“When I read the editorials in the Reformer and the Times Argus, I was just thinking, ‘What the hell are they talking about?’” says JD Ryan, who also blogged about the iBrattleboro case on his website, fivebeforechaos.com [7]. The Plainfield-based blogger says the newspapers are “spinning” the story to give the suit more credibility than it deserves.

“Yes, a lot of people think this is settled law,” acknowledges Smathers. But “with any innovation, it tends to take some time before all the permutations have been settled in the courts. I happen to side with the folks who think all the permutations have not been figured out.”

Interestingly, Odum did see fit to add a disclaimer regarding user comments to greenmountaindaily.com after the iBrattleboro case came to light, he says, as “a good-faith effort to make it clear we’re doing our due diligence.” Ryan is also considering adding a disclaimer, which some bloggers contend will be the only result of Mayhew’s suit.

“Overall, the CDA is intended to benefit society by creating an open, robust medium for speech,” says Harvard’s Ardia. If website operators faced liability for user comments and were forced to police their sites, he says many would simply turn off the commenting options.

If that happens, Odum says, “chest-thumping rivalries” between new and old media, and the tendency for traditional media to “look down their nose” at bloggers, can be held partially to blame. “They are only hurting us all,” he says. “God help us all if they invite further restrictions on freedom of speech.”

The Herald’s Smathers and the Reformer’s Holhut both say there’s a double standard when it comes to print media and Internet libel law, but don’t feel their stance on the iBrattleboro case has anything to do with a new-media rivalry.

“We don’t see this as the evil corporate media trying to slap down the plucky little citizen journalism website,” says Holhut. “They should be held to the same standard as everyone else,” says Smathers. “If they didn’t matter, nobody would sue them.”