Norfolk City Attorney tries to swat a gnat – and it swats back

Reading Christina Nuckols column in Sunday’s Virginian-Pilot, I found a kindred spirit who also thinks that campaigns spend way too much time paying attention to blogs. She even used the same terminology as I:

Blogs have real value, whether they’re generated by amateur political buffs or mainstream media. They can and do offer thoughtful analysis and poignant personal perspectives on important issues. The Internet increases access to information so voters can judge candidates for themselves. Voters can read McDonnell’s thesis criticizing working women in its entirety or watch Deeds snarl at a reporter for asking about taxes.


But blogs have had a huge and horrible effect on candidates and their staff. It’s too easy to become hermetically sealed in the campaign bubble and grow indifferent to the outside world.


A month from now, both Deeds and McDonnell will snap out of their trance and realize they wasted an opportunity to show Virginia that they are ready to lead this state for the next four years. The loser will regret that mistake for the rest of his life. The winner will realize he has a mandate to do exactly nothing.

But neither one is paying attention right now. They’re too busy swatting at gnats.

Given blog readership – especially when compared to the mainstream media – I often refer to paying attention to blogs as the equivalent of swatting gnats on an elephant’s rump (although I tend to be a bit more colorful than rump).

CALetter100909So you can imagine my surprise when I received by fax late Friday afternoon a letter from the Norfolk City Attorney’s office asking me to remove a comment from my blog. And if that weren’t enough, making the claim that if I failed to do so, it might subject me to “damages for for defamation and violation of privacy.”

Sorry – this gnat is swatting back.

Back on September 29, I wrote a post about a recent tax commissioner ruling. As of the date of this writing, it appears on page 3 of the blog, so you’d have to be looking for it in order to see it. On Sunday evening, nearly a week after the original post, someone made a comment. Despite my comment policy, I really don’t have the time to review every single comment posted on this site (which is why I don’t moderate comments). This is especially true on Mondays – my busiest day of the week at work – and whenever I’m approaching the 15th of the month, as it is a tax filing deadline. The lack of posts, as well as the content of those that were posted last week, should give you some hint as to how busy I’ve been.

The letter – with its vague threats – did nothing but make me angry. After a quick look at the Electronic Frontier Foundation’s Legal Guide for Bloggers, a link to which I keep in my sidebar, and a conversation with an attorney friend, I was convinced that the lawyer who drafted the letter must have thought me an idiot. The law is pretty clear:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

The plain language explanation of Section 230 (of Title 47 of the US Code) can be found in the EFF Guide.  In this case, as a provider of an interactive computer service – it’s my blog – I can’t be held liable for “any information provided by another information content provider,” that is, comments. There goes any claim that I could be subject to any defamation claim.

(Now, it’s possible that the person who commented might be. But the bar on proving defamation by a public figure is pretty high.)

As for the request to turn over the commenter’s name and email address – well, the name is in the comment. As for the email address – um, no.  First of all, what makes the City Attorney’s office think they have the power to ask anyone to turn over private information without giving a lawful reason? Even if they had offered a lawful reason for their request, I would not share this information unless ordered by a court. Just over six months ago, a Virginia blogger was issued a subpoena – not just a faxed letter containing threats – requesting the same thing. A legal team comprised of Public Citizen, the American Civil Liberties Union of Virginia and the Thomas Jefferson Center for the Protection of Free Expression filed a brief (pdf)  in which they argued that bloggers have the same protections as traditional journalists. One of these protections is a “qualified reporter’s privilege,” which generally permits reporters to keep confidential the sources of the information they come across.

As for the issue of privacy – the original comment contained the name of a current employee of the Commissioner of the Revenue’s office. I didn’t see it until I looked at the comment after receiving the letter and it has been redacted. I’m told that the offices of the City Attorney and CoR had monitored the comment for several days before sending me the letter.

Funny – they had no problem calling my office for my fax number but couldn’t pick up the phone to make me aware of the comment and their issues with it? I find that ludicrous. Instead of reaching out, they prolonged a situation unnecessarily. If they were truly concerned about protecting someone’s privacy, it would have made sense to contact me as soon as they saw it.

Instead, they tried to use a hammer.

In the interest of trying not to make them look incompetent, I gave them an opportunity to retract this letter to me. I could have used their tactics instead and posted this letter once I got it and left it up all weekend for everyone to see.  But I didn’t. I gave them until 10am Monday morning to issue a retraction. Had they done so, you wouldn’t have ever seen this.

But they didn’t – and you did.

There’s a lot that’s wrong about Norfolk. This is just one more piece of it.

14 thoughts on “Norfolk City Attorney tries to swat a gnat – and it swats back

  1. Nicely done. You might want to submit that letter to Chilling Effects, which is:

    A joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law clinics [that aims to] help you understand the protections that the First Amendment and intellectual property laws give to your online activities. We are excited about the new opportunities the Internet offers individuals to express their views, parody politicians, celebrate their favorite movie stars, or criticize businesses. But we’ve noticed that not everyone feels the same way.

    I am, unsurprisingly, a fan.

  2. You handled this well Vivian. Can’t believe the City actually sent this letter. Makes you wonder where these folks studied the law.

  3. I was standing outside the Pilot with my friend, waiting for his mom (Debbie Messina) to get off work so she could him home. A cop came up and asked point blank what was in my backpack. I said a copy of the constitution and it says you can’t look in my bag. I got a ticket for trespassing. I was standing on the sidewalk…

    When it went to court, there was a city attorney there to prosecute me. She showed me a picture of the location where I was cited and asked if that was in fact where the incident occurred. I said yes, she said they were going to change the address to a different location some 200 yards away on another street.

    Enough said. Norfolk City Attorney’s are scum.

    I got a memo from Nada Kawass (the only good one I’ve met) saying Norfolk’s no skateboarding law was BS and unenforceable. She ordered the police to stop enforcement. Wayne Ringer (Chief Deputy) ordered the police to resume enforcement. I visited Mr. Ringer, asked what legally had changed, he said nothing. I said then what your doing is illegal? He said yes, and I don’t care either, have a nice day.

    Once again, enough said.

  4. What profound lameness. Little people really like to throw their weight around in the hopes that someone, somewhere, sometime will think they are important. Instead they end up looking pathetic.

  5. Let’s think this through, Vivian. The City Attorney’s Office represents the City and its agencies and officials, like Sharon McDonald, in their official capacity. It does NOT represent individual employees unless those employees are SUED for acting in their official capacity. In those cases, it acts as defense attorney.

    So exactly why is the City Attorney’s Office sticking its nose into a (supposed)claim for damages for defamation and violation of privacy? Is the City Attorney’s Office claiming some authority to act on behalf of an (supposedly) aggrieved individual employee who may (supposedly) sue the commenter or you? If so, on what basis? Are they now providing plaintiff’s attorney’s services to the average employee? What authority do they have to do that, or to get involved in this (supposed) dispute at all?

    To me, they are just soliciting the information so that they can retaliate against the commenter. While they are giving out gratuitous, wrong advice to your average random citizen, maybe they can provide a discussion of the legal implications of THAT behavior.

  6. Amazing to me, Vivian. Glad you stood strong on this.

    I am on Knack’s e-mail list and asked in via reply e-mail if his complaint against Sharon McDonald was his only platform item. Seems that is all Knack ever addresses. By using this campaign tactic, he has proven to me that he would make a darn ineffective Commissioner of the Revenue.

  7. It is very sad that the Commissioner of Revenue Sharon McDonald has to resort to threatening tactics via Norfolk City Attorney’s office when someone disagrees with her or her policies. Granted naming the employee in her office was out of line. But the greater error here is tht she is an elected official threatening a constiuent. Wow! Now she would “like to send a detective to talk to her”[commenter]
    Where is the sound reasonable behavior here? There is none. It is time for a new Commissioner of the Revenue, Doug Knack, one who will think before acting and will remember who he is elected to serve.

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