Rights of Bloggers As Journalists – Barton v. Berry & Kaidan

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by Stephen Ames Berry

What are the rights of bloggers as journalists? Case in point: our neighbor Curtis Cool’s (aka Curtis Dolan) female caretaker mentioned the captioned lawsuit the other day during an exchange of pleasantries. (Curtis rents 328 Pleasant Avenue from Harriett Tangorra, Herkimer Supreme Court clerk of court, upon whom he apparently relies for legal advice.)

There is yet no lawsuit. We await.

We received a letter about a month ago from Herkimer attorney Todd D. Bennett, written for 333 Pleasant Avenue’s Douglas and Joyce Barton. The Bartons allege that they’ve “suffered damages to their reputation (sic) as a result of your publication.” (“What reputation?” asked my wife. “As drug dealers?” “Harassment? Arson? Menacing?” I suggested. “But surely our posts would only enhance those reputations?”) The Bartons demand we take down all Herkimer Post articles regarding them. It bewails the worldwide notoriety our postings have brought them. (And obviously  Herkimer itself, which has long failed to protect the Barton’s neighbors from them. Some Herkimer police officers have seemingly acted in league with the Bartons to intimidate us.)

The letter further alleges that our articles “have exposed the Bartons and their family members to contempt and ridicule.” If true, the Bartons have only to look in a mirror see the source of that contempt and ridicule. Attorney Bennett states that “according to my clients, your published statements are false and constitute defamation per se.”  Mr. Bennett does not offer his own opinion as to whether or not such statements would constitute defamation; that would have required reading the posts.

The Final Threat: Copyright Infringement?

Lastly, Attorney Bennett states that his law firm does not “attempt to restrict freedom of speech…”, then in his letter’s last sentence attempts to restrict our freedom of speech by vaguely threatening “that the publication of this legal correspondence…is unauthorized and may subject you to further causes of action.”

There is no law protecting legal correspondence per se from publication. That would be an infringement of the 1st Amendment. What Mr. Bennett may be implying is that his letter to us is protected from publication as a copyrighted work. This is often the parting shot in Cease and Desist letters, meant to further intimidate recipients into silence.

We’ve posted Attorney Bennett’s letter on The Herkimer Post because:

• It’s only possible to understand our letter in response to his  by seeing Attorney Bennett wrote; we believe its publication clearly falls under the protection of the Fair Use statute;
• We think his letter a fine example of a typical meritless threat often used by attorneys to attempt to silence their clients’ critics;
• We don’t believe the copyright laws prevent us from posting Attorney Bennett’s letter: It’s not register with Copyright Office. Until it is, Attorney Bennett cannot sue to enforce a copyright claim.  (17 U.S.C. § 411(a) His law firm could still register the work and then sue for infringement, but even if it could get past the fair use defense, his damages would be limited by his failure to register his letter with the Copyright Office before the alleged infringement.
  
  Posting Attorney Todd Bennett’s Cease and Desist letter is a clear example of Fair Use. Attorneys should not be able to make threats and then hide from criticism behind the Copyright Act. Copyright laws are intended to protect writers, not be perverted into a tool of intimidation meant to squelch freedom of  speech.

Mr. Bennett’s letter on behalf of the Bartons and our letter in response are posted at the end of this article.

SLAPP Suits and Freedom of Speech

Attorney Bennett’s letter was a typical SLAPP suit threat letter. A strategic lawsuit against public participation is a lawsuit intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. SLAPP suits are illegal in many jurisdictions as they impede freedom of speech and as such are a violation of the First Amendment.

We are grateful to Herkimer’s Joyce Barton and  Douglas Barton for their SLAPP suit threat. It inspired us to find fresh case law that grants us, as bloggers writing on matters of public concern, the same protections as that accorded traditional journalists, including the protection of New York’s awesome shield law for journalists. Under the shield law, as de facto journalists, we cannot be compelled to reveal our sources. We can and will cite as anonymous and protected, tips and information that come our way and are used in our posts. (Feel free to write us anonymously at herkimerpost@gmail.com.)

A Double Burden of Proof of Libel and Slander by Bloggers as Journalists Now Lies with the Plaintiff

Those itching to hit bloggers with SLAPP suits must now meet a huge burden of proof:

In 2014, in Obsidian Finance Group LLC and Kevin Padrick vs. Crystal Cox, 12-3523, the 9th Circuit Court ruled unanimously for the Cox, who appeared Pro Se: “We hold that liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages,” wrote Judge Horowitz. “Bloggers gets same speech protections as traditional press: U.S. court,” headlined Reuters.

Joyce  Barton, Douglas Barton or anyone else shrieking slander, would have to not only prove our posts were false, they would also have to prove that we had actual knowledge that a post was false when we published it, noted UCLA School of Law professor Eugene Volokh commenting on the Obsidian ruling in the Reuter’s article. This is a tall hurdle. 

And the same ruling noted that as bloggers on matters of public concern, such as crime, we’re free to express our opinions as to what our posts may imply. Did former East Herkimer Deputy Fire Chief Douglas Barton burn down his own garage? Our forensic video analysis of key moments of the fire would seem to imply that. If so, why? In our opinion, it was triggered by last winter’s huge state and federal crackdown on Herkimer narcotics trafficking, notably meth amphetamine production and distribution. As word of arrests near and far spread, panicked Herkimer meth cookers would have rushed to destroyed and remove evidence, such as garages, sheds and woodland sites. (Apparently even a meth cookery under 24/7 video surveillance. )

Were the Bartons involved in drug trafficking along Herkimer’s Pleasant Avenue? Our video posts seem to strongly imply that. (Just Google Joyce Barton Hekimer.) Did Joyce Barton egg on some thug and some of her family members to harass our pregnant daughter as she walked on a public sidewalk, then revel in their depraved antics? If you don’t think this video post shows that, I’ve a bridge in Brooklyn to sell you.

Possible New Source of Legal Advice for the Bartons: Harriett Tangorra?

As noted at the start, the Barton’s friend and neighbor Curtis Cool (aka Curtis Dolan) has cited his landlord, Harriett Tangorra, as the source of his advice on the illegality of our surveillance cameras. Mrs. Tangorra is the Senior Court Clerk of the Herkimer Supreme Court. Maybe Joyce Barton should give her a call for legal advice?

Here’s Curtis on June 11th, quoting Harriett Tangorra to the police in yet another failed attempt to have us arrested for being on a public sidewalk, and for monitoring his yard for dangerous late night fires:

The Herkimer police were unmoved. Video surveillance continued, and more illegal fires were recorded, reported and responded to. This week Curtis Cool, aka Curtis Dolan, escalated to almost hysterical threats of bodily harm against my wife and I following a fire department and a police visit the previous night–visits in which as usual no Herkimer police or fire official cited him.

Why Curtis Cool’s overreaction and such fear of surveillance cameras? Reviewing our data and observations with new eyes, we think Curtis may have feared exposure of deeds far darker than fire. Stay tuned.

Update – 11/11/16. Shortly after this post was published, Curtis Cool, aka Curtis Dolan, cut and ran, abruptly moving to an undisclosed location. Curtis may have thought our hints of dark deed’s were related to our observations of his interactions with small children.  If so, he was right. 

Bartons’ SLAPP suit letter and Herkimer Post’s response

Stephen Ames Berry and Linda Kaidan live in Pleasant Avenue’s landmark Camera House.