Yesterday morning I came across this article in the Houston Chronicle. The story is of a law suit involving free speech and privacy rights of an anonymous blogger who has been relentlessly critical of a medical facility in Paris, Texas.
An unlikely Internet frontier is Paris, Texas, population 26,490, where a defamation lawsuit filed by the local hospital against a critical anonymous blogger is testing the bounds of Internet privacy, First Amendment freedom of speech and whistle-blower rights. A state district judge has told lawyers for the hospital and the blogger that he plans within a week to order a Dallas Internet service provider to release the blogger's name. The blogger's lawyer, James Rodgers of Paris, said Tuesday he will appeal to preserve the man's anonymity and right to speak without fear of retaliation.
Rodgers said the core question in the legal battle is whether a plaintiff in a lawsuit can "strip" a blogger of anonymity merely by filing a lawsuit. Without some higher standard to prove a lawsuit has merit, he said, defamation lawsuits could have a chilling effect on Internet free speech. "Anybody could file a lawsuit and say, 'I feel like I've been defamed. Give me the name,' " Rodgers said.
But there is little case law in Texas or nationally to give judges a standard for when to expose anonymous postings on the Internet. "Right now it's a very murky area of the law," Rodgers said this week.
Since March 2005, The-Paris-site blog has been relentlessly critical of the business management and health care provided by the Paris Regional Medical Center, owned by Essent Healthcare Inc. of Nashville, Tenn.
"Quality issues are in play, patients are avoiding the facilities unless they have no choice, and employees are only staying because their families anchor them, not because of any loyalty to Essent," is a mild example from an April blog posting.
Further down the article, I came across this revelation and did a double take.
The blogger identifies himself under pseudonyms of fac_p and Frank Pasquale. Most blog commenters — some of whom appear to be hospital employees — are anonymous.
Now as it happens, there is another Frank Pasquale, a very non-anonymous blogger who uses his real name on various legal sites. Pasquale is a law professor and he frequently writes on medico-legal issues. I am familiar with Professor Pasquale, having read his articles first at PrawfsBlawg and later at other legal blogs.
The "real" Pasquale was contacted by a Houston Chronicle reporter in this context who asked:
"I'm a reporter with the Houston Chronicle, and I'm doing a story on the fight between the anonymous blog in Paris and the local hospital. And I had a few questions I wanted to ask you for the story if I could :
The lawsuit Essent Healthcare filed against the blogger says he stole your name for his identity on the blog. Have your read this blog? If so, do you believe it is your identity that was stolen, or just a coincidence? If it was your identity, what do you think the significance of this is for other people who are similarly situated to you on the Internet?"
What indeed is the implication here? Is it a coincidence that the anonymous blogger chose Pasquale's (who happens to write quite prolifically on medical matters) identity ? The name Frank Pasquale is not exactly John Smith. Therefore it seems unlikely that it was pulled out of a hat. Whether or not the Texas blogger, fac_p has slandered Essent Healthcare as the hospital claims, can it be true that he / she has deliberately impersonated another "blogger?" Can that be proved? And if so, is that in some way illegal? How very interesting!
There is a comment on this bizarre blog event by Mike Madison of the Madisonian. See Frank Pasquale's own entry from June, 2007 on his "purloined persona." Interestingly enough, the anonymous blogger fac_p left a comment on this post evoking "John Smith" and asked:
"As to the charge of mis-representing myself as an associate professor by your name, at no time was that done, and if you would care to peruse the site, you can verify that.
Had I picked John Smith, would any such claim be made?"
I have corresponded with Professor Pasquale on a few occasions. So I decided to ask him what was going on. He said to me in his characteristically calm manner:
The paradox is that the blogger can't prove he's not impersonating me without saying "I am named Frank Pasquale". . . which would reveal his identity!
The key problem here is I don't know if the blogger's name is actually Frank Pasquale. Though I blog a lot on health issues. (see here: http://www.concurringopinions.com/archives/health_law/)
I don't know why someone trying to shame (defame?) a particular hospital would appropriate my name.
By the way, I don't want to use the term "defame" in part because I'm afraid I could be sued by the Paris, TX blogger for defaming him by saying he defamed someone else!
I suppose I could have called myself Briar Rabbit, for all of that...but, when starting an email account, I wanted to use fac_p, so going with a name with the initials F & P seemed natural. The neighborhood I was from had a large Italian presence, so Frank and Pasquale just popped (and it wasn't going to be mistaken for any actual local identity.) I probably should have Googled it, but I never thought that this was going to be anything more than a local site.
One of the first issues I went after was the city downsizing of the EMS crews. If you notice, the start dates for the blog and the first post are dissimilar. Those initial ones went away after the first few dealing with the hospital caught fire.
Had I been trying to pass myself off as a Seton Hall professor, I would imagine that the blog's "about me" would have reflected as such.
I apologized to professor Pasquale for the confusion, and he's the one that emailed back (paraphrased): that, after all, he wasn't famous.... Maybe more modesty than reality.
My expectations were a bit low; maybe the good professor will have this as subject matter at a later date....
Hopefully, though, it will be about the issue of third-party disclosure, rather than this unintentional appropriation. That is wasting his time as well as yours.
Posted by: Frank Pasquale (the paris one) | September 27, 2007 at 08:21 PM