Saturday, April 21, 2012

Texas judge ignores blogger's First Amendment rights argument, orders website forfeited to state



A legal drama playing out in Texas involving a former muckraking website publisher appears to be raising First Amendment right issues, and it might also offer a good lesson in decorum for anyone who likes to get online and express an opinion or repeat what they’ve heard or seen.

Joey Dauben, publisher of the Ellis County Observer, is fighting back against law enforcement agencies’ efforts to seize the domain name EllisCountyObserver.com in connection with his prosecution in Ellis County on charges of “fraudulent use or possession of identifying information.”

Dauben sent out a flurry of press releases this week to local, state and national publications in an effort to draw attention to his battle. The release included a copy of his answer to the petition in the case by the plaintiff, The State of Texas, which asks Judge Bob Carroll of the 40th Judicial District Court in Ellis County to order Dauben to order the forfeiture of the domain name.

The judge subsequently ordered the forfeiture during a hearing on April 20, and Dauben vowed to appeal the decision. The district attorney disputed Dauben’s contention that his First Amendment rights were being violated, saying those rights do not apply in asset forfeiture proceedings.

The case is odd because journalists who are charged with crimes in connection with their reports usually are working in foreign countries, not within U.S. boundaries. Civil lawsuits typically are the routes disgruntled subjects of media reports take when they seek remedies, but in Dauben’s case the Red Oak Police Department filed criminal charges against him.

Dauben said attorneys with whom he has consulted told him they viewed the criminal case as "bizarre" and considered it and the forfeiture action unprecedented.

Dauben, who is serving as his own attorney in the proceeding, asked the court to dismiss the action pursuant to the Texas Citizens Act because it “constitutes a retaliatory action initiated by the State of Texas in regards to communications made on this forum by the owner of the website and domain name.”

Law enforcement officials maintain that Dauben should forfeit the asset because he allegedly committed a felony in the summer of 2011 by publishing on his website copies of documents that revealed the name, address, phone number and work history of a Red Oak man whose ex-wife accused him of molesting their child.

Dauben also allegedly threatened the man with violence on his website, according to an indictment returned by an Ellis County grand jury in January. The publisher said in a telephone interview that he wrote the man should “die” if he had molested the child.

The man’s ex-wife, who provided Dauben with the copies of the documents, was later charged with filing a false police report, and Dauben issued a public apology to the man on his website. Dauben claimed in his recent press release that Ellis County officials are now “criminalizing a civil matter.”

Dauben also alleged in the press release that law enforcement officials who fear and resent his commitment to exposing corruption are attempting to permanently silence him and ensure that all of the websites and newspapers he published under the Freedom of the Press LLC banner are shut down as well.

“By criminalizing the publication of news articles or opinions, no matter how controversial, with indictments, imprisonments, and now seizures of the media properties, especially a website that has demolished the political corruption  in this county for several years, it validates everything I’ve been writing about and exposing,” Dauben said in the press release. “Freedom of the Press is under a full-fledged assault by the forces I have spent more than a decade exposing, but despite this latest attempt and other restrictions placed upon me by other powers and principalities, I will not cease my main role in exposing evil.”

Dauben has enraged many public officials in the small counties south of Dallas, including former gay Seven Points Mayor Joe Dobbs and his police officer partner who were the subjects of Dauben’s  intense criticism. Dobbs wound up resigning as mayor before his term expired after being charged by Henderson County officials with abuse of office and in connection with allegedly interfering with a law enforcement investigation. Dobbs’ partner, Michael Tayem, also was charged in connection with a complaint filed by a citizen alleging he was brutalized by police.

Dauben, who is 31, initially was arrested at his home office on Cedar Creek Lake 50 miles southeast of Dallas in late December 2011 on charges of engaging in sexual activity with a 15-year-old male teenager four years ago in 2007 during a church camping trip. That case was filed by the Navarro County District Attorney following a Texas Rangers investigation.

Dauben, who has proclaimed his innocence of the charges, was jailed for two months on a $200,000 bond. The publisher said although he asked for a court-appointed attorney after declaring he was indigent, he did not receive representation until after the Dallas Voice made phone calls to the judge’s office and published a story on Instant Tea.

The Ellis County indictment, which was issued in connection with a raid on his home office last summer that resulted in his computer equipment being seized, was returned against Dauben while he was in jail.
The bond on the four-count sexual assault charge was lower to $50,000 after Dauben obtained legal representation, and he was released on the condition that he not use the Internet, wear an ankle monitor, remain in the area of Ellis and Navarro Counties, report to probation officers in both counties weekly and not get within 200 yards of any children.

Dauben, who identifies as heterosexual, vowed that he would continue to fight all of the charges against him and resist the state’s efforts to seize his website’s domain name. He has asked for a jury trial.
Ellis County officials managed to get several of his websites in Texas shutdown, but a Florida judge barred them from closing down one in Tallahassee on First Amendment grounds, Dauben said. “They’ve got a fight on their hands,” Dauben said. “I don’t give in or give up easily, no matter the odds.”

Prosecutors in Navarro County reportedly offered Dauben a 10-year prison sentence in exchange for a guilty plea. If convicted at trial, his punishment could amount to life in prison.

Dauben said in the press release he was also still committed to exposing corruption in government. “If I’m left with a Crayon and construction paper, I’ll keep exposing the cesspool I’ve fought for years to drain,” Dauben said.

Dauben, whose media career has spanned 11 years since he started work as a reporter for a local newspaper, launched the Ellis County Observer in October 2005. In 2009 Dauben was jailed for 12 days in lieu of a $1.5 million bond for publishing the mug shot of a Combine police officer in connection with one of his investigative news reports. After his release from jail, Dauben sued and received a financial settlement from the City of Combine in 2011.

If Dauben, who said he believes all of the criminal charges facing him are the product of a conspiracy to silence him, manages to get out of the jam in which he currently finds himself, he has vowed to operate his publications with more restraint. And that’s a good point for anyone who wants to become a blogger to remember. 

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