From the Trentonian comes a wild story about the mayor of a New Jersey town pushing through a resolution "demanding the immediate termination of a 'malicious' website called BordentownMayorReallySucks.com and the identity of its creators." James E. Lynch Jr., Mayor of Bordentown, New Jersey, convinced the City Commission to pass the resolution by a 2-1 vote last night.
According to the Trentonian article, the resolution calls on BordentownMayorReallySucks.com's hosting service, BlueHost Inc., to "dismantle" the website "on grounds the domain violates New Jersey’s consumer affairs law and possibly other state and federal laws." "It also calls for hiring a special attorney to consider legal action against the creators — two with in-city IP addresses and two outside."
Remarkably, the Mayor's beef seems to be that the gripe site "creates the impression it's the city mayor's website." To be fair, the site was originally called "Bordentownmayor.com" before being renamed to make its critical bent more obvious, and it does contain some odd headings like "Bordentown City Phone Directory," which might confuse a moron in a hurry.
But Mayor Lynch also is clearly ticked off about critical content appearing on the site, claiming that "previous posts were personal attacks on him, his wife and daughter, and a city police officer who suffers from a disability," according to the Trentonian article. More from the Trentonian:
"This website has to be removed," the mayor said. "I'm not going to go down the freedom of speech road. But some of the stuff that's on there is fraudulent. You want to put information out? Fine. Say you don't like me? Fine. But attacks on my wife, my daughter? I won't stand for that." (source)
There's so much wrong with Mayor Lynch's resolution that I can't quite get my head around it. Even if the gripe site has published false and defamatory statements about the mayor or his family, shutting down the entire site would not only be ham-handed, it would be blatantly unconstitutional.
The situation reminds me of an old Supreme Court case, Near v. Minnesota, 283 U.S. 697 (1931). In that case, a county attorney brought an action to permanently enjoin the publication of an anti-Semitic newspaper that published articles accusing city officials of malfeasance and ties to a Jewish gangster. The Minnesota law in question provided for the abatement, as a public nuisance, of a "malicious, scandalous and defamatory newspaper, magazine, or other periodical." The Court characterized the state procedure as "the essence of censorship":
If we cut through the mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter—in particular that the matter consists of charges against public officers of official dereliction—and, unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as contempt. This is the essence of censorship.
Id. at 713. Mayor Lynch's resolution is not so different, except that the Bordentown resolution purports to dispense with judicial review of the alleged illegality of the speech altogether.
Like the procedure in Near, this is an (attempted) unconstitutional prior restraint on speech. "Public officers, whose character and conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals." Id. at 718-19.
If Mayor Lynch is planning to rely on some kind of trademark/cybersquatting/government-confusion claim, good luck to him. If this gets anywhere near ICANN's domain name dispute resolution process, let's hope Marc Randazza steps in to defend BordentownMayorReallySucks.com, if only so that we can enjoy the creative stylings of his legal brief.
Let's also hope that Bluehost doesn't cave in the face of Bordentown's resolution. Not only should the website stay up, the identities of its publishers shouldn't be divulged unless Mayor Lynch follows the proper judicial procedures, including making a substantial legal and factual showing that the underlying legal claim has merit.