I was actually going to post about this site yesterday, but did not get a chance. I woke up this morning to read that Councilman Burfoot used the city attorney to sue in court for an order to remove the site. Burfoot claimed that the site was defamatory and that he wanted to sue the author(s) for slander. First, as a public official, Burfoot should know that he would have to sue for libel, not slander. Second, he should know that as a public official and as the plaintiff in a libel case, the burden of proof would be on him to prove four things (generally).

  1. Publication – The plaintiff must prove that the alleged defamatory remarks were published
  2. Identification – The plaintiff must prove that he/she was reasonably identified in the remarks
  3. Harm – The plaintiff must prove that the remarks are harmful to his/her reputation
  4. Fault – The plaintiff must prove that the defendant is at fault

Councilman Burfoot can easily prove the first three. Without an admission of guilt, however, it may be difficult, if not impossible, to prove a particular person published something online. Additionally, according to the Supreme Court Case New York Times Co. v. Sullivan, because he is a public official, he has to prove “actual malice.” In other words, on top of the main four things that he must prove, he also has to prove that the author published information that he knew was false. Good luck with that. All it takes is for the author to claim that he thought it was true and Mr. Burfoot’s case is dismissed.

Back to the actual website. It has been taken down. If you Google “may4thcounts” you can still get most of it through Google’s cached site. Unfortunately for anyone who wants to fact-check, the cached site does not include the images or the supporting documents.  At first glance, however, I don’t see how Mr. Burfoot could sue for anything. The site had news articles,photos, and public documents to support most of his allegations. A couple of things were suspect such as where he claimed that Burfoot had pushed for the MacArthur Center policy or that it has had a negative effect on the mall. Have you been to the mall lately? It seems to have more customers than ever.

Whoever the author of this site is, they appear to have connections somewhere. My guess is that they work for the city somewhere or have a relative who works for the city.  While I hope that they remain anonymous, since the Norfolk City Council would like to ban free speech in its entirety, I also hope that the author will post his website again to a different server. Better yet, I hope he would post a zipped file version of his entire site plus content to an online file sharing site such as http://www.2shared.com. If he does, I hope he posts a link to it here somewhere.

Regardless, good for him/her. Its about time someone stood up to a council member.