Fremgen v. FOB: Relevant Case Law

Miles Maguire has begun collecting documents related to the defamation case launched by Winnebago County Clerk of Courts Diane Fremgen against the Full of Balogna web site. As others have already noted, it is shocking that a judge ordered the shutting down of the site. Diane Fremgen and her family have every reason to be outraged at FOB, and have every right to pursue a defamation suit, but in shutting down the FOB site Fond du Lac County Judge Robert Wirtz has created a chilling effect that can intimidate web site operators and participants into silence. This is not acceptable. Wirtz's order is so drastic and out of line with traditional remedies that one cannot help but question his competence and fitness to serve on the bench. I applaud the Oshkosh Northwestern for its reporting, seeking out of First Amendment experts in its reporting, and its editorial position. Today the paper wisely counsels Wirtz to reconsider his decision and lift the injunction.

One reason why Internet defamation cases are difficult is because the federal government and state legislatures have yet to define precisely the legal status of computer bulletin boards and blogs. This creates bizarre situations such as Fremgen v. Full of Balogna, where because the Full of Balogna site is not a newspaper or other kind of print periodical, Fremgen did not legally have to provide those responsible for allegedly libelous posts "a reasonable opportunity to correct the libelous matter." (Wisconsin Statutues 895.05(2)). In "It's in the Cards, Inc. v. Fuschetto, 193 Wis. 2nd 429, 535 N.W. 2d 11 (Ct. App. 1995)" a judge concluded that a computer bulletin board is not a periodical and thus not subject to 895.05(2).

Here's why this is bizarre: if Fremgen had been defamed in the Oshkosh Northwestern, a publication with a subscriber base in the thousands and high Internet readership, she would have to ask for a retraction before going ahead with a libel case. Yet the FOB site, whose readership statistics cannot even come close to a mainstream periodical and whose readership appears limited to local political junkies and Internet Trolls, does not get a chance to retract? Talk about the picture being upside down. The legislature needs to correct this imbalance in the law immediately to help avoid situations like this.

Because the Internet is still a relatively new form of communication, case law regarding defamation issues is slim. Stanford University has a user friendly page of general information regarding defamation and the Internet. The page is somewhat old but most of the information on it is still valuable. That page can be found here. AOL also maintains an archive of Internet defamation cases. That archive can be found here. Below are brief descriptions of some of the cases that might apply to Fremgen v. FOB.

Cubby v. CompuServe (1991). A federal court decided that an Internet Service Provider (message distributor) is not responsible for the content of individual messages.

Stratton Oakmont v. Prodigy (1995). A New York State court decided that whovever exercises editorial control over a website can be held responsible for editorial content.

Zeran v. AmericaOnline (1997). A federal district court decided that Internet Servive Providers cannot be held responsible for defamatory messages.

McIntyre v. Ohio (1995). Not a defamation case, but has implications for the Internet because it dealt with whether anonymous communications deserve First Amendment protection. The United States Supreme Court decided that the First Amendment DOES protect anonymous messages.

ACLU of Georgia v. Miller (1997). A US District court decided that the First Amendment protects even anonymous Internet messages.

Milkovich v. Lorain Journal Co. (1990). Not an Internet defamation case, but the decision has implications for the Net. In Milkovich the US Supreme Court found that statements of opinion CAN be defamatory. This is important because defenders of sites like FOB frequently say things like "well, it's only their opinion."

Hopefully Fremgen v. FOB can help to bring some clarity to the law regarding Internet defamation. On the other hand, if this case does go forward we should expect it to degenerate into a circus. Proving actual malice will require Fremgen's legal team to show that those responsible for the FOB posts "in fact entertained serious doubts as to the truth" of the posts (St. Amant v. Thompson) or had a high degree of awareness that what was published was false (Garrison v. Louisiana). We could have a situation where the FOB crowd end up having to explain their state of mind about Fremgen via recourse to the infamous tape recordings of former District Attorney Joseph Paulus made by E.J. Jelinski.