Friday, September 2, 2011

Why The Free Speech Issues Matter In Jerry Moore v. John Hoff, a/k/a Johnny Northside (The Daycare Center Example)

Stock photo, blog post by John Hoff

Once upon a time, in a hypothetical neighborhood far, far away, there lived a blogger named Jenny West Shore...

Of course, "Jenny West Shore" wasn't her real name. Her real name was Jennifer Goff. She didn't care to be called "Jenny," but she knew everybody was going to call her "Jenny" anyway. So Jenny decided to embrace her nickname when she moved to the West Shore of Anywhere City and started a blog, "The Journeys Of Jenny West Shore."

Jenny's messy but creative and interesting life had brought her to the West Shore so she could be near her son, who lived with Jenny's ex-husband on an affluent island accessible by ferry. She bought a 100-year-old fixer upper that had been damaged in Hurricane Katrina, joined her neighborhood association the day she bought the house, and proceeded to pour years of journalistic and creative writing experience into her blog which, in no time at all, was something of a sensation. The "Shores Region Weekly" named it best coastal blog two years running.

Some of the issues Jenny tackled included unscrupulous developers who allegedly paid off city officials so they could build near unstable sea shores, grassroots efforts to clean up beach litter and protect seabird nesting areas, and unsafe, unlicensed daycare facilities used by the working class people who labored in the shining resorts and casinos of Anytown.

Jenny also covered very small stories, such as ornamental cast iron manhole covers, an edible seaweed harvesting collective organized by vegetarian lesbians, and efforts by a colorful local character to find a long-lost Spanish fort. Jenny's blog was so hot that it spawned anti-Jenny blogs, who wrote about how Jenny was an unfit mother and how she was part of a trend of working class people who were ruining the once-affluent coastal neighborhoods in light of demographic changes caused by Hurricane Katrina.

Jenny had a law degree though, incredibly, had put off taking a bar exam to deal with family and financial issues. But licensed attorney or not, Jenny was fascinated by legal cases. She wrote dozens of blog stories about the high profile Leonard Trackwell case, which involved child molestation at an unlicensed daycare center. Trackwell went to prison for 20 years for shocking sex crimes committed at the daycare center. Though the case received attention in the mainstream press, Jenny's blog stories contained more color, more detail, more facts than any other media outlet, with PDF links to court documents. Jenny knew well the various characters involved in the Trackwell case.

One of those characters was, incredibly, the former executive director of a local neighborhood association, Gary Less.

Gary had been been fired after a physical altercation with a board member on the night of a board election, but there was a long list of other scandal associated with Less. Some of the scandal involved being associated with the Trackwell criminal case.

Less had been issued a subpoena in the Trackwell matter but, somehow, was never brought in for questioning. He was named in the long, involved criminal complaint against Trackwell as somebody who helped Trackwell obtain ownership of the daycare facility though dubious layers of false identities. This criminal complaint had caused quite a stir in the neighborhood association when Gary Less was named in the document.

Jenny West Shore knew Gary and his shenanigans all-too-well. When Jenny was first looking for a home in Anytown, it was Gary Less who encouraged her to move to his neighborhood and enlightened her about many aspects of neighborhood politics. Though Jenny didn't move into Gary's part of the West Shore, at first she found Gary quite intelligent and charming, and even wrote some complimentary blog articles about him.

Then Jenny found out about Gary's three baby mamas (all sorely underpaid when it came to child support) and Gary's odd, creepy connections with Trackwell. When Gary punched the neighborhood board member in the face on the night of a board election, Jenny started blogging about the resulting scandal.

So after Gary got fired from his highly-paid executive director position, everybody kind of wondered where he would end up.

One day Jenny's cell phone rang. It was another blogger, Don "Beach Comber" Stalin, a local character who resided in a van powered by vegetable oil and tried to live without ever touching money, which he regarded as the root of all evil. Don was often on his own strange trip and was regarded as something of a nutcase, but knew how to put content on the internet (following his own odd grammar rules, like never using capital letters) and somehow managed to insinuate himself into all kinds of West Shore issues even though he parked his van on "the island" and rode the ferry to Anytown.

People who didn't like Don would say, "You live on the freaking island, not West Shores. So why don't you write about the freaking island?"

The answer was, of course, "Because if I wrote about the island, they would deport me by revoking my ferry pass and I dig hanging out with all those rich island people, who need me to score weed for them, though they pay me with gourmet meals because money is the root of all evil."

Don Stalin hated Gary Less, an enmity that went back to the time when Less and Stalin served together on the Shores Marketing Task Force funded by post-Katrina federal grants and Less kept trying to earmark funds for Stalin's blogging efforts, which Stalin wanted to be free, not encumbered by coarse fiscal commerce.

"You're not going to believe where Gary Less is working," Stalin said. Before Jenny could venture a guess, Stalin blurted out, "Shores College Outreach Research Enterprise."

"He's at SCORE?" Jenny asked. The West Shores neighborhood was excited about SCORE and all the good things SCORE wanted to do for the neighborhood, but often found the academics who worked at SCORE disconnected from reality.

"Yes, Less got a research job there," Stalin said. "You'll never guess what he's researching."

"Enlighten me," Jenny begged, grabbing for a pen and scratch paper.

"It's his job to interview little children about their daycare experiences," Stalin said.

Jenny felt chills go down her spine. Gary Less, who had been associated with Trackwell in the child molestation case. Talking to little children about daycare. Without realizing what she was doing, she snapped her pen in half. Ink ran from her fist like blue blood.

"Jesus Christ," Jenny whispered.

"We have to do something about this!" Stalin said. "You have to write something!"

"Why don't YOU write something?" Jenny asked.

"I've already got, like, three money judgments against me for sharing music files on the internet openly and in my own name," Stalin asnswered. "You've heard of the Johnny Northside case in Minnesota, right? Well, I'm scared that if I write something on my blog and Less gets fired, he'll sue me."

"Oh, so you want ME to get sued?" Jenny laughed acidly, now noticing what she'd done to the pen.

"I don't want ANYBODY to get sued but somebody needs to write something about this," Stalin pleaded.

"Why don't you contact KSHR?" Jenny asked, naming the local television station.

"They won't touch it," Stalin answered. "They mentioned the Johnny Northside case. I didn't know what it was. I had to look it up. You already knew about that case, huh?"

"Why the hell do you think I sold my old engagement ring to buy insurance for my blog?" Jenny asked. "Do you know how many stories I've AVOIDED since I heard about that case? Hell, there's a guy managing a Chicken Shack down by the old lighthouse who is a registered sex offender from Minnesota. I've let that story alone because of the Johnny Northside case. Hey, what about the Shores Region Weekly?"

"Won't touch it," Stalin answered. "Cited Johnny Northside."

"Daily Nautilus?" Jenny asked, knowing the answer.

"They told me they wouldn't even allow me to publish a link to MY blog in any of their comment threads if I wrote about it," Stalin answered. "And threatened me with legal action if I tried to post links."

"What if you just quietly and anonymously call a few people at the University?" Jenny asked.

"I already have," Stalin answered. "But he's still working there."

"I can't touch this story, Stalin," Jenny said.

"Yeah," Stalin sighed. "I kind of figured that, but you were my last shot."

There was a long, awkward silence.

"Guess what I found beach combing the other day?" Stalin asked, finally. Without waiting for Jenny to answer, he blurted out, "A whale skull. Completely intact. Not even stinky. I'm going to donate it to science."

"That's cool, Stalin," Jenny said, looking around for a towel or something to wipe the ink off her hand, and discovering that beneath the ink, her hand was bleeding. "I mean, it's cool how you manage to live without money like you do. Hey, keep me posted on this Gary Less situation. I want to know what happens, even if I can't write about it."

So nobody wrote anything on the internet. And the issue, which was never hot anyway because it wasn't public, cooled down.

Then, a few years later, Gary Less drowned when the island ferry hit an old World War Two-era floating mine, and in his private video collection authorities found dozens of tapes of working class children being molested during University-funded interviews about daycare.

Both Jenny West Shore and Don "Beach Comber" Stalin tried to make up for lost time by blogging the "back story" on the recently deceased Gary Less, but they never quite felt right about how they'd remained silent. On the palm of her right hand, Jenny found she had a permanent tattoo where the ink had soaked into the wound where she'd cut herself on the broken pen.

Jenny told herself it was a Nazi tattoo mark from a time when she lived in a country without free speech, before the Johnny Northside case was resolved in favor of the defendant.

Tens of thousands of times, all over the nation, variations on the same basic story were acted out. Bloggers were afraid to blog the truth. Newspapers were afraid to write the truth. Speakers were afraid to speak the truth. What if somebody got fired and filed a lawsuit?

But there was, ultimately, a happy ending.

When the final court finally ruled on Moore v. Hoff, the case was a triumph for free speech.

Bloggers found they didn't have LESS rights to free speech.

They had Moore.


Anonymous said...

OMG what an imagination you have! At the end of the day, you will always be John "Jerk" Hoff

Anonymous said...

Hypothosize all you want. You were wrong, a jury and Judge agreed, and so will the Court of Appeals. And I don't care what your attorney or some amicus brief say.
The 1st Amendment protections are not absolute, and what you did was not protected speech. You live in your own little demented fantasy world where you have your own little interpretations of the laws of society. How many time have you actually been successful?
Not in Seattle, not in Grand Forks, not in Texas, not in Minnesota....
How long will it take for you to screw yourself in the military? What stupid little show will you have for your superior officers there?

Anonymous said...

this was a great story. i love all the likenesses of the real life story and i love that opposite thing with evil money!! ha!

Anonymous said...

This would be an awesome, hilarious read if it weren't so sad because it's true.

NoMi Passenger said...

Gary Less - lmao!

I heart Jenny West Shore.


Anonymous said...

This was not a free speech case you jackass

Johnny Northside! said...

(Sarcasm font)

I guess the smart lawyers filing amicus briefs are all wrong and an anonymous potty-mouth troll has the real truth, HA!!!!

Not only is it a free speech case but (fade in music, O Fortuna) it's the FREE SPEECH COURT BATTLE OF THE CENTURY!

(Echo effect)




Beagle Legale said...

You keep mentioning all the lawyers who are filing amicus breifs.
Please tell us who is lining up to file amicus briefs for your appeal. As I hear it, after Judge Reilly's opinion, most everyone is walking away. So, please give us names of people and names of organizations that have signed on to file amicus briefs to the Minnesota Court of Appeals on your behalf.

Johnny Northside! said...

You are being ridiculous. Like I would ever just HAND you that information before it becomes public and give you a tactical advantage.

And what you "heard?" (Made up, rather)

It's wrong.

Beagle Legale said...

As I suspected you wouldn't/can't answer the question as there are no lawyers lining up to support you. Since I know you have a law degree we can both agree your response is nonsense. ANY brief filed had to be copied to opposing counsel as per the MRAP. So saying that you might give away a "tactical advantage" is utter crap, because those filing an amicus brief will become known.
I suspect, and the truth WILL come out, that you are just barking like a dog scared of a thunder storm.
Everywhere I turn, all I hear is that this case is no longer about a free speech issue, but rather what YOU did behind the scenes to get Jerry Moore fired.
Your blogging is no longer the issue as was clearly quantified by Judge Reilly's denial of your JNOV.
I hear that Paul has not yet agreed to take up the appeal.
So we can assume, since you're begging for funds, that you are pretty much on your own fighting this losing battle. The trial transcript alone is running about $4,000, good luck scraping that together, since you no longer qualify for IFP, and if you apply it will be appealed since your active duty status gives you a source of income.
So, John, you're nothing but a wolf howling in the wind trying to scare people.
All your big JNS talk is nothing but twaddle.
You might think you're leading the charge, but when you turn around, you're in the battle field all by yourself. And we know it.

Johnny Northside! said...

I just love the way you keep substituting "I completely made this up in an attempt to spread false, self-serving rumors" for "I heard."

But you are correct in one small regard. Those filing amicus will become known.

When they file it. Obviously writing an amicus brief takes a while.

How ironic that Jill Clark, who fancied herself such a defender of free speech, now finds herself on the receiving end of a nationwide press and blogosphere narrative saying this case is the enemy of free speech.

Yeah, you can keep saying "this is not about free speech" all you like.

That's not what the press is saying. That's not what the blogosphere is saying which exists outside of the bizarre little world of anti-Johnnies. That's not what the amicus that filed already is saying, and it won't be what other amicii will be saying.

Furthermore, if you're working for Jill Clark (or actually happen to BE Jill Clark) you should be contacting me through my attorney, Paul Godfread, not posting anonymous commentary.

But, you know, I guess you're going to keep coming here and dropping your little anonymous critiques and trying to get me to let loose with valuable tactical info.

Good luck with that.


Johnny Northside! said...

Here's an interesting blog post that's in the spirit of this topic, from the "Developers Are Crabgrass" blog.

Johnny Northside! said...

Here's an interesting account of a different defamation lawsuit touching upon some of the same issues.
Duluth News Tribune, January 24, 2012:

A jury should decide if six statements a Duluth man posted on rate-your-doctor websites and distributed elsewhere about a Duluth neurologist’s bedside manner were defamatory.

The Minnesota Court of Appeals, in a decision released Monday, sent back to St. Louis County District Court for trial the case of Dr. David McKee v. Dennis Laurion. District Court Judge Eric Hylden had ruled in April that McKee was not defamed by the criticism and threw out the doctor’s lawsuit, leading to the appeal.

McKee, a neurologist with Northland Neurology and Myology, filed the defamation lawsuit against the son of one of his patients in June 2010. McKee alleges that Laurion defamed him and interfered with his business by posting false statements on the internet and to various third parties, including the American Academy of Neurology, the American Neurological Association, two physicians in Duluth, the St. Louis County Public Health and Human Services Advisory Committee and St. Luke’s hospital, among others.

Laurion claims that any statements he made about the doctor were true and that he is immune from any liability to the plaintiff. McKee is asking for more than $50,000 in damages.

McKee was pleased by the Court of Appeals ruling. “Obviously, that’s good news and I’m glad that it turned out that way, but I haven’t had a chance to talk to my attorney about it,’’ he said. McKee is being represented by Minneapolis attorney Marshall Tanick.

Laurion’s defense attorney, John Kelly of Duluth, had gained summary judgment from Hylden by laying out 11 statements his client allegedly related regarding McKee and asking the court to determine if any of those statements might be considered defamatory by jurors. Hylden ruled that none of the 11 were defamatory. In his order throwing out the case, Hylden wrote that the alleged defamatory statements constituted opinions, true statements and statements too vague to carry defamatory meaning. He said there wasn’t enough objective information provided to justify asking a jury to decide the matter.“We were hoping to have Judge Hylden’s decision upheld by the Court of Appeals,’’ Kelly said. “They decided there are triable issues. That’s why we have trial courts. We’ll go back and try those triable issues.”


Johnny Northside! said...


The Court of Appeals ruled that Hylden properly dismissed McKee’s interference-with-business claim, stating that Minnesota does not recognize a cause of action for interference with business or economic expectancy.

To establish a defamation claim, a party must prove that the defendant communicated to a third party a factual assertion that is false and tends to harm a plaintiff’s reputation in the community.

Laurion was critical of the treatment his father, Kenneth, received from McKee after suffering a hemorrhagic stroke and spending four days at St. Luke’s hospital from April 17-21 of 2010.

The appellate court determined McKee’s defamation suit should proceed regarding six claims Laurion publicly made about McKee:

• That McKee told the patient he had to “spend time finding out if you were transferred or died.’’

• That McKee said, “44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option.’’

• That McKee said, “You don’t need therapy.’’

• That McKee said, “It doesn’t matter’’ that the patients gown did not cover his backside.

• That McKee left the patient’s room without talking to the patient’s family.

• That a nurse told Laurion that McKee was “a real tool.”

In an e-mail to the News Tribune, Laurion said he was dismayed by the decision. “While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member,” Laurion wrote. “I’ve been said to have run a cottage industry vendetta, writing 19 letters, and posting 108 adverse Internet postings in person or through proxies. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again . . .

Johnny Northside! said...

Recent article on the appeal from TC Daily Planet.

Johnny Northside! said...

We won in the Minnesota Court of Appeals. The case was published, and is an expansion of the freedom to tell the truth without worrying about getting sued if somebody loses their job as a result.


Anonymous said...

so are still going to continue to be begging for money? No one should give you a dime for something you got yourself into