Exposedat a new battle in an ancient war

For the past month a Houma website and related Facebook page have garnered unexpected attention, fueled in large part by a resulting criminal investigation, with seizures of laptops and cell phones.

The closely-watched drama, now playing out in a Louisiana appeals court, is not unique to Terrebonne Parish, however. Interviews with law professors, free speech advocates and law enforcement officials show the controversy as a mere tile in a mosaic of conflicts between citizens and public officials. What was once a battle between scribes’ pens and officials’ swords has morphed into a war between keyboards and the power to jail or otherwise sanction.

Expert observers appear to agree that both the critics and those criticized are, however, wading in new waters that rise over the heads of those on both sides, resulting in abuse of powers each holds.

“Police powers are being used against media, in particular citizen media activists who like to tweet and Facebook,” said Joshua Azriel, a communications professor at Kennesaw State University in Georgia. “You have the woman who takes out her cell phone at an open Republican political event and gets arrested. In Georgia there is a court case related to a judge who had a blogger arrested. Officials are literally uncomfortable with the fact that all of us can hold media in our hands.”

That any person with zero investment can find a wide audience for opinion or expose’ journalism, without the ethical or cultural safeguards that are part of traditional media’s DNA, likewise places those citizen journalists in greater jeopardy, because they don’t necessarily know the fine print involving their rights, nor their basic responsibilities.

The Exposedat situation appears as a prime example.

POLITICAL AGENDA

The website Exposedat.in/wp, in a complex graphic, boils down Terrebonne Parish’s political landscape into a web of political connections fed by favors, reminiscent of Thomas Nast’s iconic Tweed Ring cartoon for Harper’s Weekly.

Parish President Gordon Dove, District Attorney Joe Waitz Jr. and Sheriff Jerry Larpenter’s pictures are dominant, with photos of collateral beneficiaries of alleged nepotistic practices amounting to political-commercial incest.

The more detailed information, contained in accompanying blog-style posts, links the parish’s three most powerful political office-holders and several relatives and business people – insurance broker Tony Alford in particular – to suggestions of mutual backscratching at the public’s expense. The raw information, such as business relationships between Alford and Dove, Larpenter’s wife Priscilla and Waitz’s fledgling attorney son, are all rooted in actual fact. Its conclusions, through hints and some outright accusations, paint a picture of alleged corruption.

The political players suspected political motives from the start. Some of the allegations against Dove are based on information his political enemies had discussed with reporters during the 2015 election campaign, others bathed in hues that were visible during Waitz’s 2013 election battle against challenger Doug Greenburg.

The Exposedat site is promoted on the Facebook page of an individual named John Turner, who in all respects appears to be fictitious. The posts on Facebook and the website are anonymous. That was a chief point of vexation for the embattled officials, and it is, in the eyes of experts, a veil which is not legally impenetrable.

Larpenter, Dove and Waitz have all said in interviews that they understand their positions require that they take harsh, even unfair, criticisms.

THE SEIZURES AND THE LAW

Tony Alford, the insurance broker, considers himself to be a private citizen in this matter, although he is the president of the Terrebonne Levee and Conservation District, a position unrelated to the suggestions that he got the business of the Sheriff and of Terrebonne Parish because of his employment of the Sheriff’s wife and business associations with Dove.

As a private citizen, Alford said he made a criminal complaint to Larpenter, made possible because Louisiana has a criminal defamation statute. The U.S. Supreme Court ruled in 1964 that using the law to address statements made against public officials is unconstitutional.

After Alford’s complaint investigators sought a warrant from Judge George Larke, directed at Facebook, to determine the identity of who made the posts. Facebook complied, providing information that included the naming of AT&T as the Internet service provider for that person. A warrant was then obtained from Judge Randy Bethancourt, directed at AT&T. The company provided the home address of Jennifer and Wayne Anderson as the physical location associated with the IP address. A new warrant to search the Andersons’ home and seize their electronic devices was sought from Bethancourt and granted; three laptops and four cell phones were seized, with the Andersons’ attorney, Jerri Smitko, present during the search.

“I’ve seen all kinds of warrants executed, and never have I seen an attorney present when the warrants were done,” said Larpenter, rebutting suggestions that his pursuit of the computers was part of a personal vendetta, explaining that his detectives waited until the attorney arrived to do their work.

When the electronic devices were taken, Smitko immediately contacted Bethancourt, seeking a hearing to prevent their contents from being searched. The devices, sealed in an evidence bag, were locked up in a safe by Clerk of Court Theresa Robichaux, where they remain. Although Bethancourt would not overturn his decision, he did allow a stay to continue on further action pending appeals. Smitko filed a federal complaint with the U.S. District Court in New Orleans, alleging violation of the Andersons’ rights under the First, Fourth and Fourteenth amendments to the Constitution. U.S. District Judge Ray Zainey refused to hear the arugments, ruling that the matter, still in the state courts, was not ripe for federal intervention.

An appeal of Bethancourt’s decision is still pending before the Louisiana 1st Circuit Court of Appeal, which includes an argument that the Louisiana statute on which the seizures were based is itself unconstitutional. It also addresses with standing Louisiana case law the matter of Alford’s status as a private citizen, and more clearly than was allowed in oral argument the contention that because public agency insurance purchases are a matter of public affairs, no defamation can exist.

Neither of the Andersons has been charged with a crime, nor named as suspects regarding the alleged defamation.

OPINIONS AND FACTS

The local dispute at this point can be reduced to two distinct points of view in conflict. The Andersons, through their attorneys, maintain that the seizure was illegal, and an abuse of power by Larpenter done out of pique. Alford maintains that he has been defamed because of public statements that are false, and therefore violate the law, with officials pursuing his complaint stating the seizures were necessary as part of the investigation.

That an unmasking of whoever is behind Exposedat should be seen as a desired aspect of any prosecution, an additional difficulty may stand in the way.

Anonymous speech, the U.S. Supreme Court has ruled, indeed enjoys constitutional protection. In some cases, the anonymity of a writer may be legally preserved, if complainants can overcome certain hurdles.

“You really can’t be anonymous anymore,” said Azriel. “You could come up with the most absurd anonymous name but the courts more and more across the U.S. have issued orders that reveal the identities.”

Such intricacies are the tip of the legal iceberg for bloggers, as well as those who claim they have been defamed.

The issue of anonymity and the safe haven that speech is critical of public figures or those involved in public affairs is addressed in a Delaware case, Doe v. Cahill, which gives a good indication of where courts are headed in such matters.

Statements made in blogs or on chatrooms, like the editorial page of a newspaper or the “letters to the editor” section, can be safely presumed as an opinion and not fact, the Delaware Supreme Court ruled.

“It becomes apparent that many … allegedly defamatory statements cannot be interpreted as stating actual facts, but instead are either `subjective speculation’ or `merely rhetorical hyperbole.’”

BLOGGERS BEWARE

Lack of knowledge about how close to the line of defamation writers may tread poses a problem for bloggers and posters, nonetheless, says Azriel. “It really doesn’t matter whether a text message or a newspaper, the problem is people who host their own media don’t get themselves informed about hurting someone’s reputation, invading privacy or violating copyright and I don’t know how you fix that.”

A long-recognized legal standard enters the picture in terms of responsibility, which recognizes the difference between words spoken from a podium or on a street corner from those memorialized in print.

“Many things that are defamatory may be said with impunity through the medium of speech,” wrote U.S. Supreme Court Chief Justice Benjamin Cardozo in the 1931 case Ostowe v. Lee. “Not so, however, when speech is caught upon the wing and transmuted into print. What gives the sting to writing is its permanence of form. The spoken word dissolves, but the written one abides and perpetuates the scandal.”

“The scandal” not only lives forever on the web, it can instantaneously reach audiences of a size Thomas Paine could never have imagined.

“You could argue that anyone who opens up a Facebook page is media,” Azriel said. “Especially if the purpose is to share information, and they have to be respected as media. We don’t license reporters in this country. The First Amendment does not require that.”

Raymond Dall’Asto, a Wisconsin attorney who has spent a lifetime advocating for the protection of speech freedoms and other civil liberties, certainly recognizes that modern-day pamphleteers whose work appears online should be responsible, and recognizes the civil court remedies for libel and slander.

But a criminal defamation statute like Louisiana’s teeters too precariously over the line of fairness, he maintains, to justify its existence.

“Criminal defamation, given the current state of First Amendment law and speech protection, has no place on the statute books,” Dall’Asto said. “Criticizing public figures even if they are only halfway public figures, if it is outside the permission of the First Amendment you have a recourse to penalize someone for telling the truth.”

Penalties that exist in civil law, Dall’Asto said, should not be met with the potential for jail time, or any loss of liberty.

“There is so much that can be seen as defamatory and scurrilous on the Internet. The Southern Poverty Law Center publishes lists of organizations they call hate groups. Are these prosecutable?” •

Court gavel