Sandbox Brawl 

When a libel case is heard by a small-claims judge, only the blogosphere prevails.

It's hard to feel sympathy for either party in Kaplan v. Salahi, but the blogosphere is up in arms over the final ruling. Never heard of it? KvS is perhaps the most debated small-claims case in recent memory. After nine months of subpoenas, appeals, claims, and counterclaims, Berkeley's small-claims court has decided it in favor of Lee Kaplan, a vocal conservative journalist, blogger, and plaintiff. The loser is left-wing blogger and Cal undergrad Yaman Salahi, who has to pay $7,500 in damages.

In March 2006, Salahi launched LeeKaplanWatch, a blog devoted to railing against Kaplan's pro-Israel, anti-Muslim writings. Kaplan discovered the blog two months later, and ever since, the pair has engaged in a hissyfit of epic proportions, over which oceans of ad hominem digital ink have been spilt.

Each calls the other a libelous liar who assumes the identities of others online in order to fabricate support for his causes. Each claims the other is associated with recognized terrorist groups. In September, Kaplan got fed up and filed the small-claims lawsuit seeking damages for "business interference libel & slander."

The claims and counterclaims are tortuously labyrinthine, but they boil down to Kaplan's allegation that libelous material on Salahi's Web site and e-mail the defendant sent to a potential employer deprived Kaplan of a $40,000 job as a sports blogger. (Why the latter, who has dedicated the past six years to covering the Israel-Palestine conflict, would seek a job writing about sports remains unclear.)

Salahi lost the original March 7 hearing and appealed — for small claims, that just means another judge hears the case — but can appeal no further. So, while Kaplan is celebrating the victory, Salahi and his supporters have shifted their focus to "the failures of the justice system" and the deficiencies of small-claims courts in dealing with constitutional issues.

Indeed, while these courts help to quickly clear up petty disputes that would bog down the legal system, Salahi's online supporters say their short hearings, quasi-appeals, and lower standard of evidence — as well the appeal judge's refusal to apply California's anti-SLAPP statute, which might have resulted in the case's dismissal — all hurt his defense, which relied on technical issues including HTML, third-party servers, and the presence of a multimedia spoof site that closely resembled LeeKaplanWatch.

Peter Scheer, executive director of the California First Amendment Coalition, likens the lawsuit to "a couple of kids fighting in a sandbox." He notes, however, that if the lawsuit was in essence about libel, then Salahi "ought to have been guaranteed the various privileges and presumptions of a First Amendment case." That would include placing the burden of proof on the plaintiff, who would likely be considered a public figure in this case. These privileges, Scheer says, "by design make it very difficult to prove libel against a publisher, so immediately one wonders whether those defenses were applied in this case."

We'll never know for sure what privileges were accorded to Salahi, since the court is not required to publish its proceedings, nor proffer a written opinion.

For now, Salahi is soliciting online donations to help with the settlement costs, while Kaplan has launched a countercounter-blog, aptly titled LeeKaplanDeconstructsLeeKaplanWatch.blogspot.com

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