On Ben Domenech And Tucker Max

Much like Jeff Jarvis, I somehow missed the beginning and end of the story of The Washington Post’s new Red America blog (though we did link to it), and the early retirement of its author Ben Domenech over allegations of past plagiarism.

If you’re looking for criticism from the right you can start with Michelle Malkin and move on to Don Surber, JimK, and Dan Riehl – a compendium that wouldn’t gain much from my two cents. No one is perfect, least of all bloggers, but his transgressions were well documented and his initial denials and attempts at explanations just dug the hole deeper.

What struck me about the whole affair is the initial hate-filled thrashing on the left, cheered on by powerful lefty bloggers who could hardly be characterized as squeaky clean. While, in the end, they found something substantive it was only by a scorched-earth approach, hunting his every utterance and mention for a collection of damaging items. Josh Trevino (a former colleague of Domenech’s) summarizes the kind of anonymous (and non-anonymous) venom spewed at sites like Eschaton, Daily Kos, and Firedoglake, here and here.

And it’s that part of the story that got me thinking about another case of a blogger in the news… Tucker Max. While Tucker Max may be to to blogging as Larry Flynt is to journalism, he is the author of a widely read series of stories of drunken debauchery. The forums at TuckerMax.com have engaged in some bashing of Anthony Dimeo III, a New Jersey blueberry heir whose Renamity PR firm threw a New Year’s Eve party in Philadelphia art museum that made national news when the bar ran dry at 10:00PM. The patrons weren’t very happy and took out their frustration on some of the museum pieces…

As Philly Metro notes, Dimeo is suing Max, in part based on the Violence Against Women and Department of Justice Reauthorization Act.

DiMeo is suing Max for more than $1 million.

Weisberg said the comments on Max’s Web site aren’t protected by the First Amendment under a law passed by Congress last year that outlaws anonymously posting or e-mailing messages intending to annoy.

As Declan McCullagh noted in January posting annoying Web messages or sending annoying e-mail messages without disclosing your true identity is now a federal crime.

In Max’s case, it appears that DiMeo’s lawyer is misusing the law in a civil action, as it’s federal crime, not the basis for a libel lawsuit.

What is interesting is that in the Domenech case the anonymity of the comment section at Eschaton and the hidden identities of diarists at Daily Kos made many of those who pursued him (often profanely and scurrilously) potential lawbreakers.

A lot of really nasty stuff that would appear to fall squarely within province of the expanded law was published by anonymous sources. Imagine the chaos in the blogosphere that would ensue if a federal prosecutor decided to look into those anonymous publishers…

Note: In order to prevent the inevitable misreading and/or misquoting this piece is bound to produce, let me state very clearly that I’m not advocating for criminal investigation of anyone in the case of Ben Domenech. I’m simply looking at a new federal law which has the potential to very negatively affect the blogosphere if it is used as it was intended.

I believe the law, as amended, is ridiculous. The vague use of “annoy” invites its misuse. Perhaps it will continue to be unenforced by lack of application, but more likely it will have to be struck down by a court. In that case some poor schmuck (or collection of schmucks) will bear the burden of fighting a federal criminal indictment. For now that schmuck appears to be Mr. Max, but it’s just a matter of time before it’s a blogger or a commenter.

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  1. Dan S March 26, 2006
  2. ed March 26, 2006
  3. bryanD March 26, 2006
  4. Sean March 26, 2006
  5. Jane Hamsher March 26, 2006
  6. Sean March 26, 2006