The second anniversary of the death of Anna Nicole Smith is upon us. She died two years ago today on February 8^th, 2007. I was a fan of her reality show and watched her personal appearances. I saw radio shock jock Howard Stern berate her for weight gain and I celebrated with her when she debuted slim and triumphant as the spokeswoman for Trimspa. She then ended up having the second child she always wanted only to have her beloved son Daniel die three short days after the birth of baby girl Dannielynn Hope. Five months later Anna Nicole Smith was also gone.

That’s why I started this website. It was called “A Mothers Last Wishes”. I already told the story of this blog and the blog war that ensued in this series of articles. A year has passed but what I said then is what I would say now if I were to write that part all over again.

The deaths of Anna Nicole and her son Daniel have spawned not one but several civil legal actions. First there was an inquest into Daniels death. Many were thinking that criminal charges could have been pressed in the Bahamas against Anna’s attorney and friend Howard K. Stern for Daniels death. The jury, who were instructed to come back with a specific verdict in that country known for corruption found Daniels cause of death to be non-dependent drug use.

Stern has been a busy man though. He has sued TV journalist and book author Rita Cosby for her book, Blonde Ambition. Ms. Cosby’s book outlined the suspicious circumstances of Anna Nicole and Daniels deaths. That suit is still ongoing in the United States Southern District Court of New York .

Stern sued Houston Texas billionaire attorney John O’Quinn. O’Quinn represented Anna’s mother Virgie Arthur in Florida Broward County Court as she fought for the right to take her daughters remains back home to Texas. But Daniel was buried in the Bahamas. Early reports from the funeral home handling arrangements indicated that Daniel’s body was being prepared for shipment back to the United States. It’s rumored that Anna Nicole was told she could not afford to do this. This was even after photos were sold for several hundred thousand dollars of Daniels last hours with his mother and sister. Anna’s remains went back to the Bahamas with Daniels and there they rest alone. Stern’s defamation lawsuit against O’Quinn he says, arose from statements that O’Quinn made to the press during and after those hearings.

Stern vs O’Quinn has settled. There was no statement from either party but speculation continues because there was a continuance granted to the defense on the date set for settlement talks. To the surprise of followers of the case, settlement talks proceeded anyway.

Stern as executor of Anna Nicole’s estate sued G. Ben Thompson and Ford Shelley who were former friends of Anna Nicole. They sold her a house in the Bahamas which they were never paid for. When Anna Nicole died, Ford Shelley entered the home and took things belonging to Anna Nicole. Shelley said she told him to do that in case anything ever happened to her. Which it did. What has been revealed has sparked worldwide controversy as to how much responsibility Stern should share regarding the deaths of Anna Nicole and Daniel.

Via Ford Shelley and Geraldo, Americans were treated to the infamous “Clown Video” where Anna Nicole is eight months pregnant and apparently under the influence… Just about every instance of that video has been removed from the internet even though Stern says the video was supposedly a joke that Anna Nicole planned to publish on her website. From a still publicly unknown source, pictures circulated the internet of Anna Nicole purple, hysterical, weeping and devastated while she held her dead 20 year old son Daniel in her arms in the Bahamian hospital where she just gave birth to her beautiful daughter.

In the meantime, Anna Nicole’s mother, Virgie Arthur, sued Howard K. Stern, CBS Studios and KRPC Houston for the Entertainment Tonight segment that will forever be called “The Mommy Dearest” video. It’s actually what brought me to this story. The sight of Anna Nicole weeping and seething in anger at her mother, whom I had never read or seen anything about was heartbreaking. It was that show which prompted me to start this blog. Only to later find out that Anna Nicole was deeply impaired during the taping of the show. According to those close to her (including baby daddy Larry Birkhead),  she was being kept drugged and out of it and told things that were just not true. Although Birkhead has changed his tune these days and is said to be a very close friend to Stern.

Mrs. Arthur’s lawsuit started in Texas State Court and was then removed to Federal District Court . Neil McCabe, Arthur’s lead attorney petitioned the court to add other parties to the case. The court denied the request but declared any case against the proposed added defendants “cognizant”.

That brings us to Virgie Arthur’s Houston Texas case for defamation. Mrs. Arthur through the O’Quinn Law Firm is suing Howard K. Stern and his sister Bonnie Stern. TMZ.com, Harvey Levin, its managing editor, Art Harris who is a special correspondent for CNN and other programs and networks, one blog owner, Nelda (Rose) Turner and two of her moderators who are Teresa Stephens and Lyndal Harrington.

Defendant Rose Turner of rosespeaks.com has an “entertainment blog”. She says she likes to cover various high profile legal cases. Rose wrote almost exclusively about the Anna Nicole Smith debacle until she was served with the current defamation suit. Now she covers other issues as well.

After attorney William Ogden who was representing four of the defendants in that case decided that he could not afford to continue defending at least two pro bono defendants, Rose and Lyndal Harrington, (per Turner) he resigned from the case also leaving those two and  two other clients, Bonnie Stern and Art Harris without representation.

Rose, finding herself without an attorney was faced with having to either cooperate with Neil McCabe’s requests for discovery or the judge in the case, The Honorable Tony Lindsay was going to issue an order compelling Turner to surrender her computer to forensic expert Craig Ball who has been appointed for this case. Turner decided to cooperate with McCabe rather than turn over her computer. The other defendants have been ordered to turn their computers and emails over to the forensic expert due to possible spoliation meaning possible destruction of evidence.

Turner had in her possession an email from Bonnie Stern that was enough for attorney Neil McCabe to bring one more party into this lawsuit which not only charges defamation but conspiracy to defame Mrs. Virgie Arthur. That party is the father of Anna Nicole’s baby daughter Dannielynn. In the court documents, McCabe charges it was Larry Birkhead who gave a mean spirited story TMZ published that implied that Mrs. Arthur married her step-brother with Howard K. Stern “sourcing” that story. In reality, Mrs. Arthur did not marry nor have a child with her step-brother. Their respective parents married later on. Millions of readers saw that story and voted on a poll all designed to humiliate Mrs Arthur.

And then another twist to the story. Defendant Nelda Turner last week, filed a motion to bring CBS into the State case. The Federal case against Stern and CBS had been dropped with costs being attributed to each party. Onlookers suspected a defamation case against CBS was not over but no one ever thought it would be Turner who brought them back in by way of the existing state case. Turner then announced that one of the defendants, Bonnie Stern has filed for bankruptcy. Research shows that this action will stay the Texas State case however there are legal remedies that I am assuming will be discussed in future hearings that may allow the case to continue while Bonnie Stern follows through with her bankruptcy petition.

The suit against Cosby continues. On the eve before former Los Angeles police officer and former body guard of Larry Birkhead, Mark Spear was to give a deposition in the Cosby case, Howard K. Stern filed a lawsuit against Spear and Jackie Hatten who was a personal friend of Anna Nicole’s. Stern claims both parties libeled him and caused false information to be published in Crosby ’s Blonde Ambition.

Sterns suit against Thompson and Shelley continues as does Anna Nicole’s lawsuit against the estate of J. Howard Marshall which she took all the way to the Supreme Court of the United States and prevailed in allowing it to be heard. Anna Nicole’s surviving child Dannielynn would be the beneficiary of anything won in that action but also big legal fees would go to Howard K. Stern.

Larry Birkhead with daughter Dannielynn appeared as a surprise guest on Larry King Live the other night which was featuring “the crying judge” from the Anna Nicole burial hearing, Larry Seidlin. Birkhead and Stern are spotlighted in a television special that is airing  on “E!” television called, “Anna Nicole, Tragedy in Paradise”.

Birkhead said he and Dannielynn are set to star in their own television reality show on the same network which just happend to be the network which created Anna Nicoles reality show back in 2002. It appears on all fronts that Birkhead is the new Anna Nicole Smith. He does not say who his manager is but for all intensive purposes, he has her possessions, her child and now he wants her stardom.

An investigation into the prescribing practices of one Los Angeles doctor and the psychiatrist who prescribed eleven medications of which eight were prescribed in Howard K. Sterns name was announced by California Attorney General Jerry Brown in October of 2007. Dr Kristine Erosovitch and Dr. Sandeep Kapoor had their offices and storage units raided by the California AG.

The much anticipated investigation continues and another bomb shell was dropped just days ago.The offices of Dr. Sandeep Kapoor were raided again and this time TMZ is reporting that United States Drug Enforcement Administration  assisted in serving a search warrant along with the California Medical Board. They are looking for a connection between the doctor and Howard K. Stern.

As for me, I have been named as a cooperating witness but former co-conspirator in Virgie Arthur’s defamation lawsuit in Houston Texas. It is said that evidence I and one of my former moderators, “Havana“, submitted to the O’Quinn firm has made this state case possible. We being tiny links to a larger chain of conspiracy.

My opinion of the sad deaths of Anna Nicole and Daniel has changed drastically. However as a witness, I find it best to keep my thoughts to myself. I have been maligned and attacked by Turner and the members of her website on the internet. I refuse to engage. The truth and substance of this case will be sorted out in a court of law. I stand by all I have said and will quietly remain until the final gavel falls.

There are many who desire to know the whole true story behind the lives and suspicious deaths of Anna Nicole and her son Daniel. Her adorable daughter Dannielynn deserves to know.

Hopefully with the latest raid in California and the ongoing investigation, the world will get some answers as to why two people had to die too young and too soon.

Part II.

In writing these articles we hope to alleviate fears, encourage individuals to stop posting harassing threats of imminent lawsuits and educate ourselves and others as to exactly what constitutional protections are afforded to each of us. We also hope that these articles stimulate debate on the topic of internet postings, the right of free speech and the limits imposed by the current case law.

Freedom of speech is at the heart of America’s unique sense of liberty and democratic values. Justice Louis Brandeis wrote in Whitney v. California (1927), that

“freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth… order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones… the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Great legal minds in our nation have recognized the instinct of both government and individuals towards censorship and have struggled to imbue into our culture and our laws tools to withstand the temptation. Jurist such as Justice Oliver Wendell Holmes who wrote in his dissenting opinion in Abrams v. United States (1919), “persecution for the expression of opinions seems to me perfectly logical. . . If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.”

First Amendment decisions handed down by the United States Supreme Court have strenuously rejected the impulse to censor. Consider some of the rights that we as citizens have according to the highest court in the land:

• Desecrate the national flag as a symbol of protest.
• Burn the cross as an expression of racial bigotry and hatred.
• Espouse the violent overthrow of the government as long as it is mere abstract advocacy and not an immediate incitement to violence.
• Traffic in sexually explicit erotica as long as it does not meet a rigorous definition of “hard core” obscenity.
• Defame public officials and public figures with falsehoods provided they are not published with knowledge of their falsity or reckless disregard for the truth.
• Disseminate information invading personal privacy if the revelation is deemed “newsworthy.”
• Engage in countless other forms of expression that would be outlawed in many nations but are regarded as constitutionally protected here. [1]

Legal debate that impinges the right of free speech has focused on such areas as; obscenity laws protecting minors from offensive speech; granting the state the right to arrest individuals who use speech to incite others to violence; the area of copyright infringement; restricting the influence of money through political contributions in order to curb the unequal influence of the wealthy; and the areas of law involving slander, defamation and libel.

So while we recognize that limits on the freedom of speech must exist to protect society (in some cases) and individual rights (in others) over the course of time the courts in the United States have approached such limits with caution and embraced the doctrine of free speech as an essential component to a free and democratic society

In cases of defamation that occurs via the Internet there is a well established process that a litigant must follow in order to discover the identities of an anonymous speaker. A “John Doe” lawsuit can be filed against the speaker in question. Before the information as to the identity is revealed the litigant must obtain a subpoena to be served on the ISP conduits of the speech that is at issue in the matter. The anonymous speaker is then notified that a subpoena has been issued seeking his identity. He then has an opportunity to respond by filing what is called a motion to quash. If successful this motion would bar the revelation of the anonymous speaker’s identity to the litigant. It is up to the court to decide whether or not this should happen because of the absolute guarantee of free speech afforded to each of us under the First Amendment to the Constitution. The party seeking the subpoena must demonstrate beforehand that the speech in question truly creates a liability and that as a result he or she as suffered true damage and harm. This must be done before any information about the personal indentify of the speaker is “given over” to any party in the case.

The courts have struggled with these issues and over time have attempted to balance a citizen’s right to protect himself from defamatory speech that creates real and damaging effects to his person and/or business while at the same time protecting the cherished idea of free speech in our society. This balancing act is evident in all of the important decision regarding free speech handed down by the courts. For example; the courts have ruled that facts verses opinion does not just apply to media defendants but to all citizens.[2] In this case where the defendant wrote an allegedly defamatory letter to the editor of a local newspaper the court decided that if the statements under question were opinion rather then fact, then they are not actionable. [3]

“To determine whether a statement is an opinion or fact, the Court must look at the totality of the circumstances. This entails examining the statement in its “broad context, which includes the general tenor of the entire work, the subject of the statement, the setting, and the format of the work.”[4]

In essence what the court decided is that the specific context and content of the statement under scrutiny has to be examined, “analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the audience in that particular situation.” Finally, the Court must determine whether the statement is “sufficiently factual to be susceptible of being proved true or false.” (see above cited case).

In the case of postings on Internet entertainment sites under headings (or threads) with titles such as:

From TMZ :

AG on Anna Nicole — “Serious Crime Has Been Committed” (October ‘07)

Stern Still Pimpin’ Out Anna Nicole (December ‘07)

Dannielynn’s Daddy Gets Down and Dirty (January ‘08)

Stern Says He Never Gave Daniel Drugs (March ‘08)

From Topix:

Who’s the father of Anna Nicole’s baby? (June ‘06)

Tell me this Inquest is not full of bull (December ‘07)

Larry Birkhead had a swelled head (from December ‘07)

Howard Stern Took Pics Of Anna Nicole’s Dead Son (from February ‘08)

Who thinks Anna and Daniel were killed (June ‘08)

What court would find that any statements posted anonymously meet the rigorous requirements necessary under case law for the issuance of a subpoena in order to reveal the identity of the author? In the words of Justice Thurgood Marshall in the 1974 case Procunier v. Martinez, “The First Amendment serves not only the needs of the polity but also those of the human spirit – a spirit that demands self-expression.” We have the right to speak irreverently, sarcastically, ironically, with humor, defiance and passion because that’s way we as individuals think.

Various courts have applied a test when reaching a decision on whether or not the identity of an anonymous online speaker should be released. Columbia Ins. Co. V. Seescandy.com in the Northern District of California adopted a four-part test that a plaintiff must meet prior to obtaining discovery into the identity of an anonymous online domain name registrant. The court rule that this type of discovery is inappropriate unless the plaintiff could meet the following criteria;

1. Must be able to identify the sought party with sufficient enough specificity so that the court can determine that the defendant is a real person or entity who could be sued in federal or state court.

2. Must establish and indentify all the previous steps taken to locate the defendant.

3. Establish that the suit against the defendant would withstand a motion to dismiss.

4. Should file a discovery request along with a statement of reasons justifying the specific discovery requested as well an indentifying those persons or entities on whom discovery might be served and for which there is a reasonable likelihood that the discovery process will lead to identifying information. [5]

In another California Superior Court case in 2001 the Court granted a motion to quash a subpoena being sought for “Doe” because the party issuing it failed to show a compelling need for the information that outweighed an anonymous online speaker’s constitution rights to free speech and privacy. In this ruling the court stated that absent a showing of a compelling need to reveal the speakers’ identities, the speakers “have constitutional rights to free speech and privacy which allow them to express themselves in a public forum, such as the internet, while keeping their identities secret.”[6] Building on previous case law the court has also ruled that a plaintiff would not be allowed to pursue discovery into Doe’s identity in situations where the plaintiff had failed to prove to the court that the anonymously online speaker had abused the constitutional right of free speech in an unlawful manner or in such a way that would warrant the courts revocation of the protection afforded to them under the First Amendment to the Constitution.[7] Other courts have adopting a two-part test that the plaintiff must meet prior to issuance of a subpoena that would indentify an anonymous online speaker.[8] The necessity for such a showing was articulated by the court in Columbia Ins. Co. (cited above):

“[T]his need [for identity information] must be balanced against the legitimate and valuable right to participate in online forums anonymously or pseudonymously. People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one’s mind without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate. Furthermore, it permits persons to obtain information relevant to a sensitive or intimate condition without fear of embarrassment. People who have committed no wrong should be able to participate online without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court’s order to discover their identity.”

Court decision have thus made it clear that a litigant has to establish a legitimate and defined need for information leading to the identity of an anonymous speaker on the internet when requesting a subpoena to avoid discovery whose primary purpose is to chill speech, rather that to rectify any actionable wrong on the part of the speaker.

Most of the posters in this case consciously chose to post messages under a pseudonymous “username.” Furthermore all of the sites in question did not even require registration before access to posting. Courts have held that a litigant must obtain a subpoena before the identity of an anonymous poster is given over to them. This is necessary to preserve the constitutional right of free speech. To have personal information turned over without the benefit of a subpoena would have a deleterious effect on a citizen’s desire to participate in online forums, chat rooms and discussions. This is the “Chilling Effect” that has been much talk about during this saga, but little understood. That a person would limit or abstain from participation on a message board for fear that their identities would be disclosed to outside entities. Thus the courts have held that litigants are first required to make a showing of cause before a judge before any indentifying information is turned over.

The new deciding case law on anonymous internet speech: Doe v Cahill

Previous to Doe v Cahill, most courts had held that a plaintiff must be able to present enough evidence to survive “a motion to dismiss” before being able to learn the identity of an anonymous speaker. This is considered a very low standard because most cases easily survive a motion to dismiss, unless it is entirely frivolous and Courts are reluctant to declare this to be so before discovery is completed.

The Plaintiff is this case Patrick Cahill, a city councilman in Smyrna, Delaware, brought a defamation action against the defendant for allegedly posting defamatory statements about him anonymously on an Internet blog. Doe posted among other things that Mr. Cahill had “obvious mental deterioration” and was “paranoid.” Because Doe had posted the comment anonymously, in order to serve process, Cahill sought to compel the disclosure of Doe’s identity from a third party, Comcast. This actions was in accordance to the Federal Cable Communications Policy Act of 1984 with requires in situations where the issue in the disclosure of personally identifiable information.

(1) . . . a cable operator shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned and shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the subscriber or cable operator.

(2) A cable operator may disclose such information if the disclosure is-

(B)… made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed; [9]

What Cahill was asking was that, Comcast provide him with the information he needed to link Doe’s postings to his IP address. Comcast notified Doe that Mr. Cahill was seeking to obtain the information from them and Doe went to court to prevent the disclosure of his identity. A Superior Court judge applied “a good faith” standard and ordered the third party (Comcast), through the use of a subpoena, to disclose Doe’s identity to the Plaintiff. Doe filed an interlocutory appeal in the Supreme Court of Delaware

The Delaware Supreme Court reversed the lower court’s ruling, finding that “the good faith” standard “namely, that disclosure was warranted because Cahill had established through his pleadings that he had a legitimate, good faith basis on which to bring the defamation claim” [10] applied by the judge did not sufficiently protect Doe’s First Amendment right to speak anonymously. The Delaware Supreme Court ruled that the “motion to dismiss” standard did not adequately protect the right to speak anonymously in a case where the plaintiff is suing for defamation. Instead the Court ruled that the plaintiff must satisfy a “summary judgment standard” in order to compel the identity of the anonymous speaker. This is a much higher standard of evidence required by the judge before a subpoena would be issued to the third party. The plaintiff must show that there is a genuine issue of “material fact” involved and that there is enough evidence to justify why the case should proceed to a jury. This is all before the subpoena can even be issued to the Third Party to compel the release of the speaker’s identity. The Court weighed the balance of “one person’s right to speak anonymously against another person’s right to protect his reputation.” In overturning the lower courts decision the Delaware Supreme Court ruled that Cahill was required to (1) undertake reasonable efforts to notify the anonymous poster that he is the subject of a subpoena or application for an order of disclosure, and (2) submit sufficient evidence to establish a genuine issue of material fact for each essential element of its claim within the Plaintiff’s control. In its ruling the court found that the lower standard previously applied “might encourage meritless lawsuits brought merely to uncover the identities of anonymous critics.”

This is a landmark case on the rights of anonymous posters (and bloggers), and it marked the first time that a state high court addressed the issue.

Anti-SLAPP laws

“Powerful entities are learning that they can use the courts to silence their critics. When individuals choose to participate in a public debate anonymously, they should not have to worry that their identities will be divulged to anyone who doesn’t like what they have to say.”[11]

One person’s slander or defamation suit can be another person’s SLAPP. SLAPP stands for A Strategic Lawsuit Against Public Participation. It is a lawsuit or the threat of a lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Winning the lawsuit is not necessarily the intent of the person filing the SLAPP. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate.[12] The object of these suits is not always to win, but to administer punishment to someone for their speech. It also serves a secondary purpose of quieting others who may want to similarly speak out.

This is again the “Chilling Effect” that has been discussed ad nasuem. This is especially troubling when wealthy and powerful individuals and/or entities bring lawsuits against the “little guy” in order to stifle perceived criticism. In the arena of civil litigation the playing field is not equal. Those with means can afford a coterie of lawyers to bring suit and to keep the suit going over time while the “little guy” is lucky to even find an attorney that will take the case and when they do, they can spend their life savings defending themselves. Even if the “little guy” eventually prevails in court, he may never recoup his financial losses. The misuse of the court system is the very antithesis of the spirit behind the constitution and the rights it affords to each of us. According to New Your Supreme Court Judge J. Nicholas Colabella, “short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.”

Electronic Frontier Foundation (EFF) is an organization that has taken a leading role in protecting the rights of free speech on the Internet. Staff Attorney Matt Zimmerman recently stated,

“The right to engage in anonymous communication is fundamental to a free society. It’s critical that judges resist attempts by anyone – public officials especially — to turn courtrooms into vehicles to harass and intimidate people out of speaking their minds. Thankfully, court after court has recognized that a plaintiff doesn’t have an automatic right to pierce anonymity just because he doesn’t like what someone has said.”[13]

In 1992 The California State Legislature recognizing the “Chilling Effect” that such lawsuits engender passed a bill intended to provide relief from this type of ligation abuse.

[T]here has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.[14]

Conclusion We acknowledge that sometimes “less is more” but felt the issues at stake were of such importance that they merited a full and comprehensive review of the relevant case law and its foundation. While “ignorance is no excuse in the law” it was obvious that many did not fully comprehend the rigorous standards that the courts apply when anyone seeks to “unmask” the identity of anonymous posters on the Internet. We hope that by fully exploring the legal issues and court decisions many of the fears that have been expressed to us can be alleviated and that the continued misguided threats of pending litigation will be quieted.

That said, there are some things that appear to have taken place involving fellow bloggers that raise real constitutional and legal issues. We hope to explore these issues with all of you (from both sides of the debate) in further articles on this site. Questions remain as to the harvesting of IPS’s, and the way in which this was undertaken. For what purposes was it done? Was that information turned over to anyone? Was this act requested by litigants and/or their legal representatives? Did these actions violate the spirit of court decisions and procedures set in place to protect the identity of anonymous speakers?

That is just one area that requires further exploration. We are sure that there are other relevant topics that can be addressed. We welcome any input, questions or concerns that ANYONE may have. Thanks for your patience as we all try to figure out together exactly what happened and why.

[1] The First Amendment Center, By Rodney Smolla Dean, University of Richmond School of Law

http://www.firstamendmentcenter.org/speech/overview.aspx

[2] Nicosia v. De Rooy, 72 F. Supp. 2d 1093, 1101 (N.D. Cal. 1999)

[3] Rudnick v. McMillan, 22 Cal. App. 4th 1183, 1191, 31 Cal. Rptr. 2d 193, 197 (1994)

[4] Nicosia, 72 F. Supp.2d at 1101 (citing Underwager v. Channel 9 Australia, 69 F.3d 361, 366 (9th Cir.

1995).

[5] Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999)

[6] Varian Medical Sys. Inc. v. Delfino, et al., Case No. CV 780187 (Cal. Super. Ct., Santa Clara Cty., March
7, 2001)

[7] Dendrite Int’l, slip. op. at 19

[8] re Subpoena Duces Tecum to America Online, Inc., 52 Va. Cir. at 36

[9] Cable Communications Policy Act of 1984, at 47 U.S.C. §551(c)(2).

[10] Deleware decision defines standards for protecting anonymous internet speech

October 11th, 2005 by Evan Brown

[11] http://w2.eff.org/legal/cases/RMC_v_Does/20010207_eff_pressrel.html

[12] Strategic lawsuit against public participation

http://en.wikipedia.org/wiki/SLAPP, From Wikipedia, the free encyclopedia

[13] http://www.eff.org/press/archives/2006/07/18

[14] 2992 California State Legislature Anti-SLAPP Section 425.16

By Einy and Kerry

Those of us who have been following the investigations and subsequent lawsuits surrounding the deaths of Anna Nicole Smith and her son Daniel Wayne Smith have at one time or another been threatened with exposure to lawsuits, physical violence and other sundry unmentionable acts. At times, I have felt embarrassed, humiliated, angered, outraged, amused and frustrated. But lately the dominant emotion has been disbelief. Disbelief, that human beings can behave in a manner that I never imagined before joining the list of interested citizens reading and voicing my opinion on the subject.

Many have expressed their frustration over the perception that their fundamental right to free speech has been threatened and at times thwarted by persons involved in this whole mess of a media and legal circus. Most of these rants have no basis in fact or law and the problem is easily remedied by simply clicking on the “red x” in the corner and retiring with a good book. But not all the concerns expressed can be so casually dismissed. As tawdry and at times silly as some of this is, there are profound legal and moral issues involved.

( Need not be registered to comment but see rules below. Thank you.)

As soon as Mr. Lin Wood signed on as Howard K. Stern’s attorney, he issued a statement that many [at that time] believed was meant to intimidate the media and bloggers into silence. That’s a “chilling effect”.

Web sites such as RoseSpeaks and The Bald Truth started researching anyone who publicly uttered damaging information about Howard K. Stern. No one was off limits. Not even Mr. Ford Shelly’s child. These web sites then published that information no matter how irrelevant or immaterial the “uncovered” information was. As long as it was damaging to the person, it was fair game. That’s a “chilling effect”.

Back in September of 2007, about 20 to 30 regular posters on TMZ were banned en mass at the same time for no discernable reason. “Butterfly” posted a comment that she was asked to compile a list of names of those posters who were “anti-stern”. She said that she subsequently did so and, “poof” they were gone. That’s a “chilling effect”.

I know that Kerry and I were warned by Rose Turner after she misidentified us, that we were now “fair game” as limited public officials. That’s a “chilling effect”.

Both Mr. Harris and Ms. Turner published false information that the Magistrate presiding over the Bahamas inquest into the death of Daniel Smith had asked the public to identify themselves and that bloggers who did not do so might be arrested and sent to jail. The only motivation that I can even begin to imagine was that they did not want anyone to attend a public hearing into the death of an American citizen in a foreign country. That’s a “chilling effect”.

Mr. J. Nazarian, the private investigator for Mr. Howard K. Stern began to openly post comments on numerous websites read and visited by bloggers interested in the story. Suffice to say that his posts were not warm, fuzzy vignettes about life as a P.I. That’s a “chilling effect”.

Someone stole the contents of garbage cans from in front of the home of Wilma Vicedomine who is involved in Mrs. Arthur’s legal defense. Mr. Harris bragged that pictures of the garbage might soon be available via his website and Mr. Nazarian wrote about the contents in a post. That’s a “chilling effect”.

Professionals used their state licenses to obtain personal information and then posted that information on public message boards and internet sites. That’s a “chilling effect.”

But the one that bothers me the most is the constant refrain from Rose Turner, Art Harris, J. Nazarian and members of her site that “we have your IP information and we know who you are. That is not just a “chilling effect”. That’s an, I’m going to scared the hell out of you effect.

Kerry and I wanted to write an article titled “Share & Compare” exploring the possibility that information was exchanged between site owners and then turned over to legal representatives of Mr. Stern. We reached out to many of you and asked that you share your personal story with us. The response was overwhelming and frankly a bit frightening.

I was deeply troubled by the universal belief that an orchestrated attempt had been made to stifle free speech and to scare citizens into silence. Because so many of you took the situation so seriously, I decided to do no less. It was obvious that a short article was not going to suffice. So instead Kerry and I began to research, ask questions and prepare a detailed analysis of the issues involved.

I reached out to QV and asked if she would be willing to provide a forum to discuss what did and did not happen. What the legal ramifications are. Why it is important. And whether or not there is any available redress for those who feel victimized by this whole mess.

Hopefully we will all learn what the legal limits are. The moral limits are the responsibility of the individual.

Amendment 1 – Freedom of Religion, Press, Expression.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [1]

Freedom of Speech

The First Amendment of the Bill of Rights to the U.S. Constitution guarantees four freedoms: freedom of religion, speech, press and assembly. The Bill of Rights was ratified on December 15, 1791. With these words The Founding Fathers sought to establish a government under which its citizens could speak and write freely without fear of reprisal. The dictionary defines “speech” as “the faculty or act of expressing or describing thoughts, feelings, or perceptions by the articulation of words”[2]

The French Historian and writer, Voltaire famously articulated the philosophy behind the principle of free speech in the 1700’s with these words, “I disapprove of what you say, but I will defend to the death your right to say it.” Voltaire understood that if someone can be censored today for expressing an unpopular idea, then tomorrow you or I could suffer the same fate.

As early as 1644, John Milton spoke of the supreme significance of free speech in society when he said, “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”[3]

In 1689 the English Parliament secured a Bill of Rights from the Monarchs William and Mary. One of the rights that they fought to obtain was the “freedom of speech in Parliament.” Under our Constitution that freedom was taken further and granted to all citizens.

George Washington himself addressed the issue of Free Speech stating,

“If the freedom of speech is taken away then dumb and silent we maybe led, like sheep to the slaughter.”

The fact that “freedom of speech” is contained in the first amendment to the Constitution is no accident. President Thomas Jefferson reaffirmed this principle in his inaugural address in 1801 stressing that censorship should never be used as a means to change pubic opinion. Instead he argued that Reason is the only legitimate tool.

“If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”

In “The First Freedom,” Nat Hentoff quotes from a letter by Thomas Jefferson:

“I am really mortified that the sale of a book can become a subject of inquiry, and of criminal inquiry, too. Are we to have a censor whose imprimatur shall say what books may be sold and what we may buy? Whose foot is to be the measure to which ours are all to be cut or stretched?”

In an address to the Congress during World War II, President Franklin D. Roosevelt reiterated the importance of free speech. He spoke of his desire that the four freedoms articulated in the First Amendment to the Constitution be expanded and embraced throughout the world.

“We look forward to a world founded upon four essential human freedoms. The first is freedom of speech and expression-everywhere in the world.”

More recently Salman Rushdie fourth novel, “The Satanic Verses, published in 1988 led to violent protest in several Muslim countries and a fatwa issued against him by Ayatollah Ruhollah Khomeini, then the Supreme Leader of Iran. This religious edict called for Mr. Rushdie’s death and as a consequence he was forced to live in hiding for nearly a decade.[4] In spite of this, Mr. Rushdie is unwavering in his defense of Free Speech saying,

“Free speech is the whole thing, the whole ball game. Free speech is life itself.”

The Foundation of Free Speech in the Fight for American Independence

In order to understand how important the framers of the constitution and the courts viewed the right of anonymous speech one must look to the historical media prevalent at the time. Before the advent of electronic communications ideas and opinions were expressed through speeches, books and pamphleteering. .

Historically, a pamphlet is a small unbound booklet or leaflet comprised of a few pages loosely stitched together. They were brief and written in such a style that they were easily understood by the masses. They were sold very cheaply and used to disseminate information and as a means for the expression of opinions on the important issues of the day. Pamphlets usually had large printings and wide circulation. They could be read aloud, discussed and passed from one person to another. “Pamphlets became a significant means of mass communication and an essential vehicle for carrying on political debates in colonial America.”[5]

George Orwell a prolific pamphleteer wrote,

“The pamphlet is a one-man show. One has complete freedom of expression, including, if one chooses, the freedom to be scurrilous, abusive, and seditious; or, on the other hand, to be more detailed, serious and “high-brow” than is ever possible in a newspaper or in most kinds of periodicals…”[6]

Pamphleteering enjoyed its greatest success and popularity during the 17th and 18th centuries. Pamphlets were widely used as a means of political dissent and debate during the English Civil War and the American and French Revolutions. They were also a common tool employed to spread the ideas of the Enlightenment. During this time period writers such as Joseph Addison, Richard Steele, and Jonathan Swift produced numerous pamphlets. The French Revolution was fiercely debated among intellectuals in England; Edmund Burke’s Reflections on the Revolution in France 1790, a vehement denunciation of the revolt, was answered by Thomas Paine’s Rights of Man 1791-92, addressed to working people, which became the most widely read work of its time.[7]

“From pamphlets may be learned the genius of the age, the debates of the learned, the bevues of government, and mistakes of the courtiers. . . . they carry a reputation of wit and learning to allthat make them their companions.”[8]

It was in this form — as pamphlets — that much of the most important writings and ideas were disseminated during the American Revolution. The use of the pamphlet allowed one to do things that were not possible in any other form. They were used by many to express a heated personification of the larger conflicts and issues of the times. This would then result in a contentious serious of individual exchanges through pamphlets — arguments, replies, rebuttals, and counter-rebuttals. These characteristically proceeded with increasing shrillness until it ended in bitter personal vituperation. First and foremost, the American pamphleteers, were amateurs and it is this amateurism, this lack of practiced technique that explains much of the crudeness of the Revolutionary pamphlets.[9]

In 1776, American writer and human rights advocate Thomas Paine published a radical pamphlet called, ‘Common Sense’. This pamphlet is the most coherent statement to date of American independence views and historical scholars believe that its writing and dissemination changed the course of history in the United States.[10]

A very important feature of pamphleteering was that the author could remain anonymous if they chose to do so. Even if the writer(s) of the pamphlet claimed authorship of the document they could escape retaliation by the Crown and its representatives because of the ‘on the run’ nature of publishing that the pamphleteer employed. The role of anonymous pamphleteers in the building of our nation has been recognized by the highest court in the land.

“Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.”[11]

Free Speech = Anonymous Speech

While most of us are aware from basic American Civic classes that the Constitution contains an amendment guaranteeing the right to free speech, when talking to many of you it was apparent that the right to “anonymous speech” was not fully understood by everyone. The tradition of anonymous speech is older than the United States. In fact, “…all of the Federalist Papers were signed by Publius, a pseudonym representing the trio of James Madison, Alexander Hamilton, and John Jay .”[12] Anonymity of speech is important because without it a person(s) would hesitate to say certain things or expose unpopular ideas for fear of retribution.

The courts have consistently upheld the concept that free speech and anonymous speech are bound together and protected under the constitution. Anonymous communications have an important place in our political and social discourse. The Supreme Court has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment.

1919

The best test of truth is the power of the thought to get itself accepted in the competition of the market.” [13]

1974

Don’t underestimate the common man. People are intelligent enough to evaluate the source of an anonymous writing. They cansee it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message. And then, once they have done so,it is for them to decide what is `responsible’, what is valuable, and what is truth.[14]

1978

“Inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.”[15]

1995

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society. [16]

1999

“People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one’s mind without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate.” [17]

Limits on Free Speech

United States First Amendment theoretically grants absolute freedom, placing the burden upon the state to demonstrate when (if) a limitation of this freedom is necessary.[18] The courts have ruled that both state and federal governments have the right to enact statues that limit certain narrowly defined types of speech but these limits are very specific and the courts have generally been reluctant to impede the free exercise of speech.

Unlike many other democracies the government in the United States of America is expressly forbidden from restricting speech. Court rulings that involve limitations on the free exchange of ideas and thoughts have broadly followed the philosophy that reason and free speech should prevail over fear and censorship.

“Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears.”[19]

Our society accords greater weight to the value of free speech than to the dangers of its misuse.[20]

Though government cannot regulate the content of speech it has an obligation to its citizens to provide remedy for parties that sustained injury as a result of such thing as defamation and hate speech. Through time the judicial system has developed a body of law to specifically address these issues. That is why suits such as defamation and libel are civil torts and not criminal. Laws regarding defamation only apply to specific individuals who have been victimized by the acts of others. The Courts have struggled to find a balance between the constitutional right to speak freely and anonymously with the right to secure legal redress through civil litigation.

Simply put if someone says something that isn’t true about another person and as a result of that false statement the person is “injured”, then that person has the right to seek legal redress through the court system. The courts will rule on liability and award money to address the damages incurred. In the context of what has been happening in this saga, it is of utmost importance to remember that a process has been established through the courts to address these issues precisely because of the value that the courts and society place on freedom of speech. Those that seek a way to circumvent the process do a great injustice to the very foundation of our constitution and the courts.

Free Speech on the Internet Where the internet is concerned case law is new, but the courts have held that the right to speak freely includes the liberty of anonymous speech on the Internet. Reno v. American Civil Liberties Union, was the first major Supreme Court ruling regarding the regulation of materials distributed via Internet. The Court voted to strike down anti-obscenity provisions of the Communications Decency Act (the “CDA”), finding they violated the freedom of speech provisions of the First Amendment..[21] In an opinion written by Justice John Paul Stevens, the high court decided,

“Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-judge district court that the statute abridges the freedom of speech protected by the First Amendment.”

The court further stated that a speaker on the Internet is the modern-day equivalent of a pamphleteer.

Through the use of [online] chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.[22]

Other courts have also recognized and affirmed that the right to speak anonymously without retribution and censor extends to speech on the Internet. In ACLU v. Johnson the court extended the right to anonymous free speech to the Internet.[23] In a 2000 case the court stated that,

“To fail to recognize that the First Amendment right to speak anonymously should be extended to communications on the Internet would require this Court to ignore either United States Supreme Court precedent or the realities of speech in the twenty-first century” [24]

Although the case was later reversed on other grounds the court found in America Online, Inc, v Anonymous Publicly Traded Co. that, “Inherent in First Amendment protections is the right to speak anonymously in diverse contexts,” including on the Internet.” [25] America Online, Inc. v. Anonymous Publicly Traded Co., 2001 Va. LEXIS 38 (Va. S. Ct., Mar. 2, 2001)

The Constitution Also Protects Our Freedom of Association on the Internet. The ability to bring people together who share a common interest and to provide a means for them to communicate with each other is one of the most valuable tools that the Internet has provided to modern society. Message boards and chat rooms create a community or association of people and forum in which they can come together regardless of geographical locations the exchange and debates ideas in their common area of interest.

The Supreme Court has recognized the synergy of freedom of speech and assembly.

“[T]he practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process. The 18th-century Committees of Correspondence and the pamphleteers were early examples of this phenomena and the Federalist Papers were perhaps the most significant and lasting example.[26]

The court ruled that the release of a membership list violated the constitutional right to freedom of association.[27] In Gibson v. Florida Legislative Investigation Committee the held unconstitutional a subpoena intended for us in discovery of alleged co-conspirators by compelling the release from the NAACP of its member’s identities. [28] The U.S. Supreme Court in Gibson affirmed the importance of protecting citizens from having their private associations disclosed through the use of a subpoena in a civil case.

It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when [it] tends to impinge upon such highly sensitive areas of freedom of speech. . . freedom of . association, and freedom of communication of ideas.How does this apply to the current litigation and threats of litigation

We’ve already shown that the American tradition of protecting and honoring anonymous speech can be traced back to the Founding Fathers of our country through the use of pamphleteering and that the courts have ruled that the internet in analogous to that.

Many people chose to communicate their ideas and opinions on line using pseudonyms (assumed names) or anonymously (no name at all). “[T]he free exchange of ideas on the Internet is driven in large part by the ability of Internet users to communicate anonymously,”[29] yet in the internet we rely on Web sites or ISPs to protect our anonymity so when should our ISPs be turned over to a defendant or his attorney during the discovery process in civil litigation? Ann Beeson, Staff Counsel of the American Civil Liberties Union has stated that, “unless online anonymity is protected, whistleblowers who want to criticize their employers, parents who want to criticize the principal of their children’s school – and many others – may be afraid to speak out. That would be a loss for our country.”[30]

In terms of civil suits that would involve the “unmasking” of anonymous posters on the internet the courts have determined that strict procedural safeguards must be imposed “as a means of ensuring that plaintiffs do not use discovery procedures to ascertain the identities of unknown defendants in order to harass, intimidate or silence critics in the public forum opportunities presented by the Internet.”[31]

Following this procedure a litigant must first apply to the court for a subpoena seeking the identity of the individual whose statements are the subject of the suit. This safeguard was put in place because the courts found that, “Against the backdrop of First Amendment protection for anonymous speech, courts have held that civil subpoenas seeking information regarding anonymous individuals raise First Amendment concerns”.[32]

Accordingly, “the constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded.”[33] Otherwise, “[i]f Internet users could be stripped of that anonymity by a civil subpoena enforced under the liberal rules of civil discovery, this would have a significant chilling effect on Internet communications and thus on basic First Amendment rights.” [34]

By Kerry and Einy

[2] “Speech.” The American Heritage® Dictionary of the English Language Fourth Edition 2000.

Dictionary.com. 19 April 2006. http://dictionary.reference.com/search?q=speech

[3] Areopagitica: a Speech for the Liberty of Unlicensed Printing to the Parliament of England

[4] Salman Rushdie, From Wikipedia, the free encyclopedia

http://en.wikipedia.org/wiki/Salman_Rushdie

[5] US History Encyclopedia: Pamphleteering http://www.answers.com/topic/pamphlet

[6] George Orwell, (“Introduction”, in George Orwell and Reginald Reynolds, eds., British Pamphleteers):

[7] [Pamphlet From the Hutchinson Encyclopedia of World History. © Research Machines plc [2006] All

Rights Reserved, Helicon Publishing is a division of Research Machines.]

[8] [Myles Davis, Icon Libellorum (1715), as quoted in H.L. Mencken, A New Dictionary of Quotations

on historical principles from Ancient and Modern Sources 883 (Knopf ed. 1991) (1942).]

[9] Bernard Bailyn’s “The Ideological Origins of the American Revolution”. published in 1967,

[10] [Robert C. Berring, Deconstructing the Law Library: The Wisdom of Meredith Willson,

89 Minn. L. Rev. 1381, 1405 (2005)].

[11] And as the Supreme Court stated in Talley v. California, 362 U.S. 60, 64 (1960):

[12] http://en.wikipedia.org/wiki/Pseudonymity

[13] (Abrams v. United States, [250 U.S. 616, 630 (1919) (Holmes, J., dissenting)]).

[14] New York v. Duryea, 76 Misc. 2d 948, 966-967, 351 N. Y. S. 2d 978, 996 (1974)

[15] First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978)

[16] McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995)

[17] Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999).

[18] Freedom of speech, From Wikipedia, the free encyclopedia

http://en.wikipedia.org/wiki/Freedom_of_speech

[19] Justice Louis Brandeis opined in Whitney v. California in 1927,

[20] Abrams v. United States, 250 U.S. 616, 630-31 (1919) (Holmes, J., dissenting).

[21] Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)

[22] Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)

[23] ACLU v. Johnson, 4 F. Supp. 2d 1029, 1033 (D.N.M. 1998), aff’d, 194 F.3d 1149 (10th Cir. 1999)

[24] re Subpoena Duces Tecum to America Online, Inc., 52 Va. Cir. 26, 34 (Va. Cir. 2000)

[25] America Online, Inc. v. Anonymous Publicly Traded Co., 2001 Va. LEXIS 38 (Va. S. Ct., Mar. 2, 2001)

[26] Citizens Aginst Rent Control/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 294 (1981):

[27] NAACP v. Alabama, 357 U.S. 449, 466 (1958)

[28] Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 558 (1963)

[29] http://www.eff.org/issues/anonymity

[30] http://w2.eff.org/Censorship/SLAPP/20020711_eff_pr.html

[31] Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756, 771 (N.J. Super. A.D. 2001).

[32] Sony Music Entertainment v. Does, 326 F.Supp.2d 556, 565 (S.D.N.Y. 2004).

[33] Doe v. 2themart.com Inc., 140 F. Supp. 2d 1088, 1097 (W.D. Wash. 2001).

[34] 2theMart.com, at 1093 http://ilt.eff.org/index.php/Speech:_Anonymity

****Anyone can comment. Need not be registered. But if anyone attacks another poster, the authors or the site owner, your comment will be removed without warning.

As I wrote a few days ago, there are many facets and people from all walks of life involved in the story of the deaths of Anna Nicole Smith and her son Daniel Wayne Smith. One sector is the infinite world of the internet and its bloggers.

Howard K. Stern's attorney Lin Wood wrote a piece entitled "Litigating in the Court of Public Opinion". 

I personally have not read any of his work but the title is intriguing in that some of the folks in the internet part of this story are what I consider warriors for the truth. Their truth. These warriors come from all over the world.

Those of like minds who have gathered together to discuss this case are very passionate about it. They are shaping public opinion. Some realize it and work hard at it. Some just like the discussion and arguing. However they indeed are making a difference concerning what the public thinks about the premature deaths of Anna Nicole and Daniel. And they do matter and will be heard in the various lawsuits. Maybe not right out front but they are there. And so am I.

I suppose that is why Mr. Lin Wood checks in on my site most every day. He knows from experience that we are a part of these cases. I’m kind of busy in the summer time so I don’t have too much to say. Things will be more active as we move into fall Mr. Wood, so keep checking back.

Without further commentary from me, I would like to present another article written by the blogger known as Einy. Her group experienced first hand how involved and even scary this case has become for some of us that are said to be unimportant. And as these civil lawsuit cases move on, I fear more of the same of what Einy is writing about.

Click on over to The Red Couch to read “Trick or Treat, Why Go to a Costume Party Without a Costume?” Written by Einy..

In the United States District Court, Southern District of Texas today, the honorable Judge Lee H. Rosenthal filed a thirty-one page order dispensing with several motions before her, in the civil suit of Anna Nicole Smith’s mother, Virgie Arthur vs Howard K. Stern and CBS Studios and KPRC Houston.

The attorneys for Mrs. Arthur had sought to add additional defendants to the lawsuit after her attorneys had discovered that there was defamation ongoing not only on television but also on the internet.

Attorney Neil McCabe of the O’Quinn Law Firm in Houston TX filed a motion to add Art Harris, a journalist and blog owner of artharris.com, Bonnie Stern, sister of Howard K. Stern, Harvey Levin, managing editor of TMZ.com and also TMZ the internet site and company. Also requested to be added were bloggers Nelda Rose Turner, owner of rosepeaks.com, Lyndal Harrington, a moderator of rosespeaks.com and Teresa Stephens a former moderator of rosespeaks.com.

The motion to add the additional defendants was denied. However, anticipating a denial, McCabe and colleague Attorney Michael Meyer filed a lawsuit in the 190th District Court of Harris County Texas against the additional defendants. There are presently jurisdiction objections from the non Texas residents. Also there are motions pending in that court and requests for documents and examination of computers used to allegedly defame Mrs. Arthur.

Judge Rosenthal lists the various reasons for denial however, she recognized the validity of the claim of defamation and conspiracy and went as far as to write in her opinion that the added claim appears cognizable to pursue in state court. Cognizable The power, authority, and ability of a judge to determine a particular legal matter. (click on the highlighted words for more in depth definitions). The state court claim was also filed in a timely manner and can now commence.

KPRC was dismissed from the suit. Cited was the studio had a contractual obligation to broadcast the Entertainment Tonight interview and had no way of knowing in advance the subject matter of the interview.

Howard K. Stern’s motion to dismiss for lack of personal jurisdiction was denied. For specific personal jurisdiction, Judge Rosenthal differentiates and writes that “the court must assess Stern’s forum contacts independently from the contacts of the other alleged conspirators. The question is whether Stern himself, not the alleged co-conspirators had the requisite minimum contacts.”

The Judge states the claim against Stern is not that he himself made the defamatory remarks about Virgie Arthur by arranging the ET interview but that he urged Anna Nicole to make the statements about Mrs. Arthur. The Judge writes the alleged defamatory remarks concerned Arthur’s treatment of Anna Nicole when she was a child in Texas and about her experiences in Texas.

Stern knew that Arthur lives in Texas and has lived in Texas her whole life even though he has denied that fact in a sworn statement. He knew that Entertainment Tonight is broadcast in Texas and the events discussed were purported to occur in Texas. Arthur lives in Texas and that is where the harm has occurred and had “foreseeable effects” there. Stern worked to arrange to broadcast statements to the nation including Texas about the Texas activities of a Texas resident.

Judge Rosenthal’s decision rendered means that Arthur will be able to pursue her claim against Howard K. Stern and CBS in her Texas Federal Court.

The Judge also says that Mrs. Arthur will be able to move forward with her defamation and conspiracy claim against Howard K. Stern, Bonnie Stern, Art Harris, Harvey Levin, TMZ, Nelda Rose Turner, Lyndal Harrington and Teresa Stephens in Texas State Court.

You can read the full text of the Memorandum and Order here.
190th State District Court of Houston Texas, Arthur vs Stern et al Docket here

*Edited to strike reference that there is a motion in the 190th Houston TX court for production of documents and examination of computers. That was in the Federal case and declared moot.

Thanks to Trixie for the watermark!

Today, a compelling argument was presented by Virgie Arthur attorney Neil McCabe of the O’Quinn Law Firm. This concerns the late Anna Nicole Smith mother’s lawsuit against bloggers Rose and Ken Turner in conjunction with her defamation action against Howard K Stern and CBS Studios. Other defendants requested to be added to the suit include journalist Art Harris, Harvey Levin and TMZ.com, Bonnie Stern, Howard’s sister and two moderators from the Turners website, Lyndal Harrington and Teresa Stephens.

The Turners, seeking to transfer venue in a manuver to sidestep a subpoena requesting their computer records, cite First Amendment objections. At the same time, McCabe outlines how Mrs Turner on her website “objects to the subpoena in religious terms relating to her domestic practices”. For those not aware, Mr and Mrs Turner practice the BDSM lifestyle and apparently have attempted to claim the lifestyle as a religion in statements made on their internet site.

An interesting notation is how Turner’s commentary sparked internet discussion prompting the creation of an article published on The Red Couch by bloggers known as Kerry and Einy. The article title pretty much says it all.

Read; Why Being Made To Sit In The Corner Is Not Foreplay Or Worship,The Anna Nicole Smith Saga Through Rose-Colored Glasses.

The Sur-Reply filed in the United States District Court of Eastern Texas. 060408_Arthur_Sur-Reply_Turner was provided by one of our members. Thank you.

Review the latest legal documents and see what you think?

A history making document concerning the Anna Nicole Smith story was filed today in the defamation lawsuit, Virgie Arthur vs Howard K. Stern, CBS Studios, INC. and KPRC Houston.

Arthur’s attorneys today requested to add additional defendants to the suit. Those persons/entities are as listed in the filing, Bonnie Stern, the sister of Howard K. Stern, TMZ Productions, Inc. and its managing editor Harvey Levin, Nelda Turner the owner of the website RoseSpeaks and Art Harris an Atlanta, Georgia based professional journalist. Arthur’s attorney Neil McCabe of the O’ Quinn Law Firm is asking the court to add the additional parties by March 28, 2008.

The document lists as related cases, Howard K. Stern vs John O’ Quinn and The O’ Quinn Law Firm which is also a defamation case that is being adjudicated in the US District Court, Southern District of Florida. Also, Howard K. Stern vs Rita Cosby and Hatchette Book Group which is being heard in the US District Court, Southern District of New York.

Attorneys for Arthur anticipate taking oral depositions from Howard K. Stern, Bonnie Stern, Art Harris, Harvey Levin, Nelda Turner, Mark Steines, the producer and crew of the Entertainment Tonight show, the corporate rep for CBS and the corporate rep for KPRC. Others may be identified later.

Attorneys for Howard K. Stern led by L. Linn Wood anticipate deposing Virgie Arthur and certain relatives and friends of Vicky Lynn Marshall (aka Anna Nicole Smith) and also may identify others later on that they wish to depose.

Discovery beyond initial disclosures for the purpose of establishing personal jurisdiction have been a deposition taken by Howard K. Stern. There are additional subpoenas anticipated to be issued to Nelda Turner, Kenneth Turner, Lyndal Harrington and Teresa Stephens for the purpose of conducting jurisdictional discovery. The defendants reserve their right to object to those subpoenas.

CBS and KPRC are open to mediation to resolve the matter but at this time, Stern does not believe the dispute between himself and Arthur can be resolved in that manner.

The details of the plan can be read here.
*Additional documents added to include the “Memorandum in support of Plaintiff’s motion for leave to amend original petition (complaint) to add additional party defendants and jurisdictional facts”, and three supporting exhibits.

Arthur_memo_amend_suit_additional_defendants_03142008.pdf

Arthur_Exhibit1_03142008.pdf

Arthur_Exhibit2_03142008.pdf

Arthur_Exhibit3_03142008.pdf

This article is dedicated to “Jitterbug”. May she rest in eternal peace and light.

Things have finally settled down at least for awhile in the Anna Nicole Smith chronicle. The message boards that are active more or less seem to be rehashing the same old news and the same old arguments. Save for a stray bit of drama or attempts to sensationalize trivial matters.

The announcement from Howardsville that IP numbers were being collected and bloggers who slander Howard K Stern will be held accountable, seemed to make people wonder just who is watching what hen house. It was the beginning of a cooling off period that is now seen internet wide. A professional journalist abruptly stopped his coverage of this story and many familiar nick names are not heard from anymore.

Then the first subpoena for an internet blogger was served and revealed, although not exactly in that order. It seemed to send even more of a hush though out our communities. The bloggers themselves that are so aptly called the “Sterniods” and the “Antinoids” on the large celeb gossip site TMZ have shrunk in numbers as well. By the way, whomever invented those monikers was spot on. My observation in this story is that either you are for Howard K. or against him. I can see three trains of thought most prevalent out there. Pro-Virgie, pro Howard or anti-Howard.

So, what was to come reaching into the depths of the Anna Nicole internet neighborhood, was quite poetic. It was “who” in particular, ended up with the subpoenas after IP threats and the creation of the “wall of shame”. After the publication of the story of this website and what was going on behind the scenes it should be no surprise.

Anyone that was worried and thought that their first amendment rights were in danger by the likes of Neil McCabe or L. Lin Wood can relax. Blog on. What lawyers are looking for are not bloggers but people that have taken their involvement in this case to the depths of inviting actionable consequences. There are just a small handful, but they exist.

The lack of activity has been nice for me. I got mine and some family member’s income taxes filed and a couple of projects done around the house. My point is, if you are tired of the story, by all means step back. I have to an extent. Just be sure to check in every once in awhile so we don’t lose touch. And it goes without saying that we will gather for activities and happenings worthy of comment. But if you have fear that you are going to attract a subpoena for simply expressing your opinion, it’s not going to happen.

*New legal documents posted.
Filed 02/21/2008

Virgie Arthur v Howard K Stern, CBS Studios and KPRC Houston

Order granting Arthur’s unopposed motion to amend response to Stern’s rule 12(b)(2) motion to dismiss.

Order_granting_amended_response_02212008.pdf

Filed 02/14/2008

Stern v. Cosby et al

Stern-v-Cosby-protection-order-02142008.pdf