10 March 2008

KingCast is off to Court with standing in KingCast/Jesseman v. Union Leader, Hillsborough South 08-E-093 to see who forged Brian Jesseman's identity.

Okay. The time is now 7:14. Court at 9:00 a.m. Just to go over a few points that people have been asking me about:

1. What makes you so sure you have standing?


a) I have standing pursuant to the case law in the Complaint and Motion, you Honor.
b) I have standing pursuant to the fact that this is a matter of public concern, your Honor.
c) I have standing pursuant to the fact that this is a matter involving fraudulent activity involving a appropriations bill and I'm a New Hampshire resident. Read the comments for more.

2. What makes you so sure you can discover the identity of the tool who forged Brian's identity in support of Martha McLeod's HB 1428 Bruce McKay Highway, in so doing misappropriating his likeness and creating a False Light Invasion of Privacy and criminal Fraud?

a) As noted in the comments section to this post, the Union Leader requires a poster to present an email address and a phone number. I doubt that the poster was sophisticated enough to use a scrambled email address or phone number.
b) The company that manages the Union Leader website is certain to have the IP address of the poster, and forensic technology should allow us to figure out where that post was (ill)conceived.

Also, with regard to the issue on non major-media access to courtrooms that KingCast pioneered back in 1996 the NH Supreme Court agreed with KingCast in January, 2008. Attorney Sullivan is well aware of that. Read the story.

KingCast: We gon' do what we need to do.

POST HEARING UPDATE:
ORDERED: Parties to submit briefs within 10 days for final order. Defendant, by and through Kate Sullivan, Esq. argued that KingCast does not have standing and that Plaintiff Jesseman can't prove the underlying allegations so he's not entitled to the IP address and contact information. She related the line of cases holding that anonymous Defamatory comments are not actionable.

Here's her Biggest Problem:

This is not a Defamation case. It is an Intellectual property case. Someone misappropriated Brian Jesseman's Intellectual property, and as such the relevant case law is that body of law pertaining to record companies suing to obtain the IP addresses of people who use their Intellectual Property without license. See ELEKTRA ENTERTAINMENT GROUP, INC. v. DOES 1-9 2004 U.S. Dist. LEXIS 23560 (U.S. SDNY 2004). Accord Laface Records, LLC v. Does 1-5, 2007 U.S. Dist. LEXIS 72225 (U.S. WDSD Michigan, Sept. 27 2007) (Copyright infringement allegation compels production of IP addresses and names). More on this later.

As to standing, I explained to His Honor that his own ruling in another case granting KingCast the right to video in court (see video in comment #1) is that whether or not someone is a valid journalist is to be handled on a case-by-case basis. In this case I explained that I was an editor of a statewide newspaper and a reporter for a large Metropolitan daily. Mayor Streeter gave me an award for First Amendment and Right-to-Know activity. Short of being Ed Bradley or Woodward & Bernstein you can't have a stronger background than that.

Attorney Sullivan also tried to delimit the nature of my story by stating that I could still "cover the alleged story by stating that someone forged Mr. Jesseman's name." I told her that she nor the court can tell me what my coverage is going to be.... "what if a State Rep forged Brian's name?" "Well that would be interesting..."

Note: The Union Leader itself wrote "forgery" in the return email to Jeffery Jesseman.

Lastly, Attorney Sullivan argued that Mr. Jesseman would need to file a case against John Doe first, then issue a subpoena to Union Leader. But His Honor pointed out that he is aware of case law in New Hampshire holding that one may pursue an equity case to obtain discovery first in order to sue, and I would agree that the end result is a distinction without difference. For more on my discussion with Attorney Sullivan read the comments. Now then, back to the writing.

19 comments:

Christopher King said...

Basically as Judge Robert Lynn --who denied the ex parte relief in this case and set this for immediate hearing -- said in the court hearing in which this video was made, "KingCast is no different than WMUR."

While it is a bit of an insult to be compared to WMUR, the fact remains that bloggers -- particularly those who have edited statewide weeklies and who have written for large metropolitan dailies -- have the same rights and privileges as mainstream press.

As such, it's no different that the Union Leader or WMUR being denied access to a Court record or video of a DUI suspect on a matter of public interest.

The injury to the person is the inability to cover a matter of public interest.

"It's unfortunate if Plaintiff decides to put it up on blogs.... sometimes in a free society you've got to deal with a little nonsense, that's the price of living in a free society," said His Honor.

Frankly, I don't care of the Court thinks it's nonsense.

I just want my documents.

So there you go.

Christopher King said...

"Kate, come on now.... if I go home right now and start posting that you are involved in a Satanic sex ring, do you think that there's not a Judge in the World that's going to deny you access to my IP address?"

[Laughter from both of us]

"You know it's certainly interesting being on the other side of this...."

"I know it is... whenever I show up I end up with firms like Orr & Reno arguing things that they never otherwise argue... it's a trip."

Orr & Reno lost, BTW.

Christopher King said...

Some of you more keen-eyed readers may note that the Union Leader has taken a more aggressive role in defending this matter than they initially indicated toward me when they said they would basically let the court rule on the motion.

I have notified opposing counsel that while I'm not exactly thrilled with this development, I am fully prepared to litigate this to the NH Supreme Court and beyond.

Anonymous said...

Chris King,

I have been following your blog for some time. I think you have made some good points and have made some bad points, I agree with most of you positions. I cannot understand why you are going after the IP address of an anonymous poster. You state in the title of your blog to be a champion of the First Amendment. Anonymous speech is one of the corner stones to free speech. It is stated in Doe v. Cahill the importance of anonymous speech even though a person may find it less than flatering. Since that court case the government has been trying to chip away at the freedom that anonymous posting offers. I cannot understand why you would try to erode certain freedoms that you wish to champion.

Christopher King said...

10:12

Thanks for you comment and readership.

The point here is that I agree with the developing case law holding that anonymous Defamation is not actionable.

But as I continue to get to the nugget of Truth in this case, it is not about Defamation of Brian, but rather the theft of his intellectual property.

You don't need an IP address between Hillary and Barack when they accuse each other of supporting different positions, because guess what:

You know who said it.

And as I pointed out to His Honor today, Brian Jesseman was a PRIVATE FIGURE and the rules of First Amendment revolve around that even when it comes to Defamation.

Check it out.

Peace, love, aloha, namaste.

Anonymous said...

I appreciate your tenacity. In your posts you put out a lot of animosity towards the Union Leader, probable well deserved. A great man once told me to pick your battles carefully. Are you fighting this battle to be a thorn in the side of the Union Leader or do you see an advancement to the cause of the First Amendment.

I'm not understanding your argument of the intellectual property of Brian, I could understand the privacy issues, what was the intellectual property, a picture or a writting by Brian would be his intellectual property. Thank You and good luck 10:12

Christopher King said...

10:12

I'll order a taped copy of the transcript and in it you will hear me clearly state that this is not about KingCast v. Union Leader.

I've already set that score straight as to their past transgressions toward me.

The Intellectual Property to which I speak is the bundle of thoughts, feelings and ideas that are circulating in Brian Jesseman's mind. They are a valuable commodity because

a) The Jesseman name is fairly well-respected in the community.

b) They have roots going back there some 300 years.

c) His father is a serious candidate for Town Selectman.

His Honor is aware of all of this.

So by somebody stealing that intellectual property by misrepresenting it for political gain, that's illegal.

It has to be. Because if it's not I'm going to start posting all kinds of stuff about politicians, judges and everyone influential in town and in New Hampshire and what their positions are on crucial issues, anonymously.

Then we'll see how THAT works.

Anonymous said...

Thanks for clarifying a few things for me, again good luck

Christopher King said...

1:55

Hey thanks again for your continued interest. I tend to be right on First Amendment issues according to the courts if not my detractors :)

That link on the front page about the NH Supreme Court Declaration that computers and cameras are presumptively allowed in Court comes what, only 12 years since my crew started shooting video in open court......

Anonymous said...

well, it doesn't surprise me to learn that some effort was expended to thwart your efforts to uncover the truth; not that you mind a challenge...you've got a great mind.

i like the alternative, if it becomes necessary, for you or others to behave similarly and publish random or specific statements of misinformation.

they can choose.

Christopher King said...

Exactly.

Meanwhile the decision on the merits dated 6 March 2008 came in the mail today.

Interesting because I called the Court on that very day to check on the progress of it!

As KingCast requested, the State was ordered to provide some Affidavits as to the validity and depth of their purported searches for information, which is good, and the State is Ordered to provide many documents from Bruce McKay's personnel file for in camera inspection.

I will listen to the hearing again (available on YouTube by searching Franconia511 channel) but I could SWEAR that I heard Attorney Mullen specifically tell His Honor that he was at the time of hearing providing ALL of the personnel file for his in camera inspection AT THAT TIME.

I will listen to the audio again this evening for further explication and identify the salient portion of the hearing right here in this link.

*******

In my estimation the court did not fully address a few arguments that I made, the most significant of which was Defendant Franconia's initial outright denial of any of Bruce McKay's personnel file.

That one's going upstairs for certain.

********

Also, regarding the 150+ responses to the Franconia Recovery and Reconciliation Committee, I had publicly acknowledged in the audio of the hearing and in the Pleadings that the documents are not yet public record because they have not been provided to the Town for the PAST 9 MONTHS despite promises to do so. The Court denied my request for production and stated that the proper remedy was to seek an appeal rather than continued jurisdiction.

I am not picking and choosing the KingCast issues for appeal, and I'm sure the State is looking at its options as well.

As for assessment of costs and fees, the court ordered further briefing on those issues. At this point I will remind the entire Free World that Punitive Damages have been awarded in FOIA cases, and as RSA 91-A follows FOIA, the possibility exists for such an award in the case at bar. All of that law is thoroughly briefed and argued and may be heard in the YouTube/KingCast/Franconia511 audio.

That is all for now.

I have a lot of motorcycles to sell, and a lot of work to do on this and many other cases.

Namaste.

Anonymous said...

just an additional comment...and not to digress too far from the news of the decisions made by judge vaughn...
but
you've legally framed the issue about the theft of brain jesseman's intellectual property; but the moral aspect is the accomplished intent to deceive brian, as well.
clearly, there was no mistake in the matter of intent.
by locating and naming the offender, i would like the court to prove to me and others that this person is or is not an individual who may have acted outside of his/her professional boundaries.
no, this is not a matter of free speech on behalf of someone who intended to harm.

Christopher King said...

Oh, yah, it's foul.

And the natural inclination is to wonder if someone in government or Law Enforcement did that because if they did they should be summarily dismissed.

I have published the elements of criminal fraud before and they obtain here. Judge Lynn was asking me whether there was a case like this before where criminality could be found but even if there is not, such is not the question in the new era of Internet communications.

The question is whether the actions meet the statute.

Period.

This case is bigger than even I thought, in part because they are going to vigorously oppose me. I thought Franconia and Kelly had already learned about doing that.

Anonymous said...

i am also disgusted with the antics of an individual on another forum, and suspect his/her self-representation may be involved. yes, this is becoming bigger, as lessons aren't easily learned by the folks holding the strings.
there is immense and underlying support for your work, Chris, and the news of Judge Vaughn's ruling is quite positive, so far.
as information about these three areas fills in....to include Judge Vaughn's rulings, the Brian Jesseman case, and today's election for Franconia's open seat on the selectboard....i remain hopeful and positive.
your efforts continue to be greatly appreciated. thank you.

Christopher King said...

5:56

Oh, it's All Good.

I kept my nose to the grindstone through it all because I knew what had to be done, and what STILL has to be done.

There are briefs due in both the Grafton and Hillsborough cases and some work stuff I have to do for Honda and the law firm work and I just don't know how I'm going to manage it.

Toothpicks for the eyes and Yerba Mate for the body, I guess.

Anonymous said...

The minute someone intentionally used another person's name under the guise of being that person they are no longer an anonymous poster but a fraudulent and misleading person that is robbing another person's identity thus the very integrity of that said person. Of course we should have freedom to be anonymous poster but the two are world's apart that is very clear to me. It is about protecting Brian Jesseman's right to own his name and represent himself w/out the danger of someone forging his beliefs. I certainly feel this is an infringement on Brian's personal freedom. I certainly don't want to be worried that every tom, dick and harry could go around making statements under the false pretense of my name and get away with it.

What if someone would have called the paper and made the statement to a reporter claiming they were Brian? Does he then have the right to know what number that call came from? Absolutely, there is no difference with it being posted in the comment section of a well-known newspaper.

Christopher King said...

Yah, and that's precisely why this is an Intellectual Property case, and the Court will see it that way when I'm finished, just as sure as Judge Vaughn in the other court noted that Kelly's actions in hiding the homicide investigation protocol were "Illegal."

Anonymous said...

Based on Sullivan's logic I could start posting at the UL tomorrow using the name Martha McLeod with an apology for the harm I have caused the greater community of Franconia and get away with it. No problem. Better yet, I could say I am Kelly Ayotte and that I repent of all my sins before the entire state of NH. No problem, right? Ask Sullivan that one...he is playing a dangerous game with this.

Christopher King said...

7:03

You had better believe it.

Definition: Slippery slope.