The latest chapter in an ongoing saga pitting an Orthodox rabbi from Monsey, N.Y., against female former congregants who have accused him of sexual harassment is raising broad legal questions about the right of free speech in cyberspace.
Rabbi Mordecai Tendler, who was accused of sexually propositioning women who came to him seeking spiritual guidance, petitioned a California court May 24 to force Google — the Internet giant that hosts electronic message boards through its Blogspot division — to disclose the identities of four anonymous writers who post comments to Web journals, known as blogs. Tendler, the scion of a storied rabbinic lineage, has fiercely denied the allegations of sexual harassment since they first surfaced in 2004. He claims that the bloggers have posted “false, misleading, and defamatory materials” about him on their Web sites.
In response to the petition, Public Citizen, a national public interest group whose litigation group has played a lead role in defending free speech on the Internet, filed motions on July 6 to throw out Tendler’s case and reimburse the defendants’ attorney fees, saying that the request violates the bloggers’ First Amendment rights to free speech.
The newest development in the controversy surrounding Tendler, who was expelled from the Rabbinical Council of America in 2005 and was later sued for sexual harassment by one former congregant, is part of a growing body of court cases that are grappling with how to balance the rights of those who say they are being libeled with the rights of their anonymous critics, legal analysts said.
“Our interest is in the problem of balancing the right to speak anonymously on the Internet against the right of someone who has been harmed by unlawful speech to get redress,” said Paul Levy, the Public Citizen attorney who filed the motion in response to Tendler’s petition. Levy leads the group’s Internet free speech project. “For ordinary people, the only effective way to reach the community at large is through the Internet, which provides a voice and an opportunity to speak,” he said.
Tendler is seeking to learn the names of those who operate the blogs Jewishwhistleblower.com and rabbinicintegrity.blogspot.com, among others.
The issue of anonymous free speech on the Internet is particularly salient in the Orthodox Jewish community, where electronic message boards have often served as a safe space for airing allegations and discussing claims of sexual abuse by rabbis. Fearing both retribution by the accused clergy and ostracism from their communities, many Orthodox victims of sexual abuse have sought refuge in cyberspace. Jewish-themed blogs, which have proliferated in recent years, have also served as an effective means for victims to take action when allegations of sexual misconduct have gone unheeded by rabbinic authorities, some critics said.
In response to Tendler’s petition, Rabbi Yosef Blau, a spiritual adviser at Yeshiva University, filed a three-page affidavit with the Superior Court in San Jose. Calif., arguing that it is important to maintain the anonymity of the bloggers. “The potential consequences of speaking out can be especially severe when the target of the criticism belongs to an influential family, as is true of Rabbi Mordecai Tendler,” wrote Blau, who has himself been the subject of attacks on blogs and in the print media from critics who accused him of organizing efforts to oust Tendler.
Tendler is the son of Rabbi Moshe Tendler, a prominent Talmud instructor and bioethicist at Yeshiva Univeristy, and the grandson of the late Rabbi Moshe Feinstein, widely considered to be his era’s preeminent decisor of biblical and rabbinic law.
In 2005, Blau was attacked in a series of articles published in two Orthodox newspapers, the Jewish Press and the Jewish Voice and Opinion, as well as on a now-defunct Web site that was created to discredit him. Blau said that he was never able to prove that Tendler’s associates were behind the Web site and that he eventually gave up his efforts to expose them. “The supporters of Tendler have never revealed themselves, but no one is suing on the other side,” he added.
Lawyers for Tendler did not return repeated calls from the Forward seeking comment.
While a strong precedent for cases involving free speech on the Internet has yet to be established, in previous cases that have come before state courts — most recently in a 2004 state Supreme Court ruling in Delaware — judges have placed the burden of proof on the plaintiff to prove defamation before they are willing to force an Internet host to reveal a blogger’s anonymous identity.
“The First Amendment reflects an understanding that sometimes the most valuable speech is uncredited,” said Jonathan Zittrain, a professor of Internet governance and regulation at Oxford University. Zittrain cited as a historic example the Federalist Papers, which were written anonymously by the authors of the United States Constitution. “And no one would call the framers cowards,” he said.
Some advocates for sexual abuse victims contend that anonymous blogging is necessary not only to shield accusers from potential harassment, but also to help them through the process of healing.
“One of the things most healing to any victim of a serious crime is to talk about it,” said Vicki Polin, founder of The Awareness Center Inc., a volunteer organization that maintains a Web site on sexual abuse in the Jewish community. “When people start blogging, they realize they’re not alone,” she said.
But some Jewish bloggers expressed disdain toward those who remain anonymous. Stephen I. Weiss, who operates the religion blog Canonist and founded one of the first Jewish blogs to host discussions on sexual harassment by rabbis, said that while anonymity may be legally justified, it can’t be morally justified. Many blogs “claim to bring down abusive rabbis when they don’t,” Weiss said. Still, Weiss added, “legally, the potential ramifications for what Tendler is proposing are horrendous.”
Meanwhile, an Israeli Knesset member, Yisrael Hason, was set this week to introduce a bill that would require Internet sites to only post comments from participants who identify themselves, according to Israeli news reports. That bill was sparked by similar cases in Israel of public officials who were anonymously criticized by Internet bloggers.