When a Politician Sues a Blog to Unmask Its Anonymous Commenter

Markos Moulitsas is the poll-watching founder of the political blog Daily Kos. Thursday he wrote that in 2021, future third-party presidential candidate RFK Jr. had sued their web site.

'Things are not going well for him.'

Back in 2021, Robert F. Kennedy Jr. sued Daily Kos to unmask the identity of a community member who posted a critical story about his dalliance with neo-Nazis at a Berlin rally. I updated the story here, here, here, here, and here.

To briefly summarize, Kennedy wanted us to doxx our community member, and we stridently refused.

The site and the politician then continued fighting for more than three years. 'Daily Kos lost the first legal round in court,' Moulitsas posted in 2021, 'thanks to a judge who is apparently unconcerned with First Amendment ramifications given the chilling effect of her ruling.'

But even then, Moulitsas was clear on his rights:

Because of Section 230 of the Communications Decency Act, [Kennedy] cannot sue Daily Kos — the site itself — for defamation. We are protected by the so-called safe harbor. That's why he's demanding we reveal what we know about 'DowneastDem' so they can sue her or him directly.


Moulitsas also stressed that his own 2021 blog post was 'reiterating everything that community member wrote, and expanding on it. And so instead of going after a pseudonymous community writer/diarist on this site, maybe Kennedy will drop that pointless lawsuit and go after me... consider this an escalation.' (Among other things, the post cited a German-language news account saying Kennedy 'sounded the alarm concerning the 5G mobile network and Microsoft founder Bill Gates...' Moulitsas also noted an Irish Times article which confirmed that at the rally Kennedy spoke at, 'Noticeable numbers of neo-Nazis, kitted out with historic Reich flags and other extremist accessories, mixed in with the crowd.')

So what happened? Moulitsas posted an update Thursday:

Shockingly, Kennedy got a trial court judge in New York to agree with him, and a subpoena was issued to Daily Kos to turn over any information we might have on the account. However, we are based in California, not New York, so once I received the subpoena at home, we had a California court not just quash the subpoena, but essentially signal that if New York didn't do the right thing on appeal, California could very well take care of it.

It's been a while since I updated, and given a favorable court ruling Thursday, it's way past time to catch everyone up.

New York is one of the U.S. states that doesn't have a strict 'Dendrite standard' law protecting anonymous speech. But soon the blog founder discovered he had allies:

The issues at hand are so important that The New York Times, the E.W.Scripps Company, the First Amendment Coalition, New York Public Radio, and seven other New York media companies joined the appeals effort with their own joint amicus brief. What started as a dispute over a Daily Kos diarist has become a meaningful First Amendment battle, with major repercussions given New York's role as a major news media and distribution center.

After reportedly spending over $1 million on legal fees, Kennedy somehow discovered the identity of our community member sometime last year and promptly filed a defamation suit in New Hampshire in what seemed a clumsy attempt at forum shopping, or the practice of choosing where to file suit based on the belief you'll be granted a favorable outcome. The community member lives in Maine, Kennedy lives in California, and Daily Kos doesn't publish specifically in New Hampshire. A perplexed court threw out the case this past February on those obvious jurisdictional grounds....

Then, last week, the judge threw out the appeal of that decision because Kennedy's lawyer didn't file in time — and blamed the delay on bad Wi-Fi...

Kennedy tried to dismiss the original case, the one awaiting an appellate decision in New York, claiming it was now moot. His legal team had sued to get the community member's identity, and now that they had it, they argued that there was no reason for the case to continue. We disagreed, arguing that there were important issues to resolve (i.e., Dendrite), and we also wanted lawyer fees for their unconstitutional assault on our First Amendment rights...

On Thursday, in a unanimous decision, a four-judge New York Supreme Court appellate panel ordered the case to continue, keeping the Dendrite issue alive and also allowing us to proceed in seeking damages based on New York's anti-SLAPP law, which prohibits 'strategic lawsuits against public participation.'
Thursday's blog post concludes with this summation. 'Kennedy opened up a can of worms and has spent millions fighting this stupid battle. Despite his losses, we aren't letting him weasel out of this.'

Read more of this story at Slashdot.