Would you be surprised to learn that a journalist is acting like an eager censor?

You shouldn't be. First, any disturbed freak can call himself a "journalist" and any lunatic can set up a website and call it a newspaper. You can't expect people who call themselves journalists will display the judgment or professionalism of professional "mainstream" journalists. Second, you can't expect competence, honesty, decency, or professionalism from "mainstream" journalists in the first place. Third, even even "mainstream journalists" can develop a taste for censorship when criticized; it's a moral and civic failing common amongst all professions.

So we shouldn't be surprised that the guy running a "news site" called "Boca News Now" is trying, to the best of his modest abilities, to be a censor.

The story starts with the tragic death of a man named Timothy Van Orden, who was hit by a car and killed as he rode his bike along a highway in Boca Raton, Florida. After an initial report about the death, Boca News Now chose to run a story titled ""Biker Van Orden, Killed In Boca, Had Lengthy Record." It contained two paragraphs about Van Orden's record including this:

Court records confirm what tipsters told BocaNewsNow.com after we reported his death. Van Orden, 41, spent considerable time in the Palm Beach County Jail and was in and out of trouble with the law for more than a decade. Charges against him ranged from drug possession to battery. Many of the allegations were not prosecuted by the Palm Beach State Attorney's Office, although the third DUI conviction landed him with a 30 day jail sentence and the ten year license suspension.

Many people found this bizarre and offensive. One can imagine reporting the deceased's criminal record if, for instance, he died in a fight and there was a question about who started it. You can imagine a journalist doing a life-struggle story about how someone's fight to better himself after a history of convictions was cut short by tragedy. You can imagine a journalist writing about somebody's criminal history if their credibility was an issue in the case. You can imagine a journalist doing a story about a victim's background if it was somehow unusual or notable, like a notorious criminal. But responding to a traffic death with an article that does nothing but say "look at this dead guy's mundane criminal record" strikes me as odd and repulsive. If it is "journalism," is is not the sort anybody should feel bound to respect.

Many commenters at Boca News Now thought so too. Many commenters wondered why the site focused on a run-down victim's record and didn't say anything about the person who run him down, including anything about the status of any investigation into the death. Someone at Boca News Now angrily shut down comments and defended the story, again oddly:

Folks, We are shutting down comments for this story at 11pm. Your voices have been heard and rest assured, we will continue to publish information concerning the driver just as soon as it is officially released. While many of you are passionate and angry at BocaNewsNow.com for what you perceive to be a one sided story, understand that investigators are very methodical about what can and can not be released to the public for fear of jeopardizing a case. We will not be a party to publishing accusations and innuendo today that could result in a potential case being ruined tomorrow. That is what many of you are asking us to do. Mr. Van Orden’s record — like it or not — will almost assuredly be a factor in any future case. It will likely be released with even more details by defense attorneys should charges be filed. It’s not a secret. There is nothing to hide. For those of you who continue to post on Facebook, Twitter and elsewhere, consider whether your posts could end up helping the driver’s defense, should a criminal or civil defense be needed. And note: there is no conspiracy, we have not been paid off, the government is not involved, a NJ Congressman has not ordered us to run anything (nor could he nor would we), our parent company is not involved in this case at all, and the Boca Raton Police Department is not caving into political pressure. Justice — in the real world — doesn’t happen in 48 minutes like it does on TV. Justice in a Palm Beach County Vehicular Homicide case — if that’s what this becomes — often takes a year. -BocaNewsNow

These are the words of someone who is (1) lying, (2) making shit up out of anger, or (3) swollen with unjustified confidence that they understand the criminal justice system when in fact they have no grasp of it whatsoever. In fact, if the driver were criminally prosecuted for killing Mr. Van Orden, absent any indication that Mr. Van Orden was intoxicated and that his intoxication had a role in the accident, there is almost no chance that his criminal record would be admitted in a prosecution. It's irrelevant and unfairly prejudicial. Boca News Now's suggestion it is not reporting about the driver to avoid "jeopardizing a case" is incoherent and ridiculous, since Boca News Now seems was gratuitously reporting an auto accident victim's record in a way that seems indifferent to the impact on the jury pool, if not calculated to inform a jury pool of irrelevant and inadmissible information. The suggestion that people writing about this will somehow "help the driver's defense" is nonsensical.

Enter Reddit. Reddit has a bicycling subreddit, and there's an angry thread there about the Boca News Now article and the lack of prosecution of the driver. Eventually redditors figured out that Boca News Now is founded by a journalist named Andrew Colton:

BOCA RATON, FL (BocaNewsNow.com) — The website is just a few days old, but BocaNewsNow.com is quickly distinguishing itself as the go-to source for news and information in Boca Raton, Florida. Founded as an experiment by former network news correspondent Andrew Colton, the site is receiving thousands of hits from residents and Boca-enthusiasts seeking information about what’s happening in South Palm Beach County.

Colton has a "litigation communication" consulting company:

About Andrew Colton Andrew Colton is considered to be the leading producer nationally of high-impact litigation settlement documentaries and “day in the life videos.” Attorneys retain Colton to benefit from his story telling and production expertise honed during years spent as an award winning national correspondent for ABC News and CBS Newspath.

One redditor summarized Colton's background, consulting, and connections and said this:

The owner of this news organization is Mr. Colton who is in the business of smearing victims and helping the accused avoid the consequences of their actions. He uses his ownership of the Boca News to help him achieve his goals!

Andrew Colton didn't like that. Andrew Colton began contacting people crying defamation, and someone at Boca News Now penned a remarkable editorial. By "remarkable" I mean "whiny, unprofessional, and consistent with head injury or dementia." The Boca News Now doubled down on its defense of its hey-look-at-the-dead-guy's-convictions story:

he reason is quite simple: Boca Raton police are still investigating the accident and we do not want to publish rumor or innuendo if it could jeopardize a case. We speak with Boca PD several times a week on this issue. We have no regrets and have published nothing that is incorrect.

Again, this is sheer nonsense. Journalists report on the existence of an investigation all the time. Done professionally, it doesn't threaten any resulting prosecution. The only thing likely to taint any case here is Boca News Now's bizarre decision to run a gratuitous profile of a victim's criminal record, details that would not be admissible in any prosecution of the driver.

Boca News Now takes childish swipes at Reddit. I've noticed something: sooner or later born censors inevitably go to the "you have too much time on your hands" line.

In the “Biker” community on Reddit.com, an online forum where it seems many have little else to do than comment on news articles involving bikes, we were chastised.

Boca News Now claims it is being smeared:

What isn’t fine is that one poster published false and defamatory claims about BocaNewsNow.com. Specifically, that the news site is paid by attorneys to “smear” opposing parties in litigation. It’s just not true.

But look again, Boca News Now. That's not what the poster said. Once again, he said:

The owner of this news organization is Mr. Colton who is in the business of smearing victims and helping the accused avoid the consequences of their actions. He uses his ownership of the Boca News to help him achieve his goals!

Boca News Now then details its efforts to track down people at Reddit and threaten them into taking the comment down. Boca News Now — mind you, putatively a journalist site — is shocked and appalled that Reddit asserts its rights under Section 230 of the Communications Decency Act, perhaps the most important law governing web site rights, which provides that web sites are not liable for what their commenters say:

But incredibly, at 1am this morning, we received a letter from young associate Joseph Farris at the San Francisco Law Firm of Goodwin Procter, telling us that Reddit.com is protected under the Communications Decency Act and we should stop bothering Reddit. The comment he says — even though it is completely incorrect — will remain.

"Incredibly, the lawyers for the web site I ineffectually threatened cited the operative law that protects them, instead of yielding to my bumptiousness!"

So. Does Andrew Colton have a valid defamation claim?

He does not.

A statement of opinion that cannot reasonably be read as conveying false undisclosed facts is absolutely protected by the First Amendment. An opinion can be constitutionally protected because it states something that can't be interpreted as a factual claim ("Andrew Colton is a douchebag") or it can be constitutionally protected because it states an opinion based on facts that are fully disclosed ("Based on the things these links show Andrew Colton doing, I think he is censorious.") As one Florida court put it:

Pure opinion is based upon facts that the communicator sets forth in a publication, or that are otherwise known or available to the reader or the listener as a member of the public. Mixed opinion is based upon facts regarding a person or his conduct that are neither stated in the publication nor assumed to exist by a party exposed to the communication. Rather the communicator implies that a concealed or undisclosed set of defamatory facts would confirm his opinion. Morse v. Ripken, 707 So.2d 921, 922 (Fla. 4th DCA 1998)

The Reddit post and comment in question disclose all the facts that form the basis of the opinion, including links to Colton's consulting firm and the Boca News Now article in question. The statement "Mr. Colton who is in the business of smearing victims and helping the accused avoid the consequences of their actions" can be taken to refer to the business of Boca News Now, in which case it is an absolutely protected statement of opinion based on the linked Boca News Now article gratuitously and oddly running an entire article about the irrelevant criminal record of a possible crime victim.1 To the extent the comment is implying that Mr. Colton uses his web site to advance his consulting business, either by helping existing clients by attacking potential litigation adversaries or as marketing by displaying "look what I can do for you," it is also opinion based on disclosed facts. Nothing in the Reddit comment implies the commenter is privy to undisclosed facts. Rather the comment links the facts and opines on them. Reasonable people may think the conclusion is unwarranted — there's no indication that Colton's firm does criminal defense work, an in fact the site suggests he focuses on civil plaintiff's work — but that does not make it less of a protected opinion.

It's odd that Andrew Colton, a journalist with a respectable background, doesn't know this already. Perhaps he does. He will not enjoy learning it for the first time in a motion to dismiss. I will not hesitate to light the Popehat Signal to find pro bono counsel for the defendants in any case arising from this nonsense. Good relations with the Floridians I have.

Boca New Now, which already resembles the sort of site on which colloidal silver is sold, has little credibility to squander. Andrew Colton has far more. His behavior here is an embarrassment, particularly if he has anything to do with any of Boca News Now's statements. (I hope not. The quality of writing at Boca News Now is more consistent with his having assigned it to a troublesome and untalented relative.)

He should reconsider his course of action.

Last 5 posts by Ken White