John Doe vs. John Doe: Virginia Court's Decision in Online 'John Doe' Case Hailed by Free-Speech Advocates

[Jim Choate]

On Tue, 20 Mar 2001, Sandy Sandfort wrote:

> Jim wrote:
> 
> > What is the reason the civil statute exists?
> > Because some 'damage' has occured.
> 
> Wrong.  Damages have always been contemplated under the common law tort
> system.  There are numerous and complex reasons that some torts have also
> been "criminalized."

There are two common (and legally acceptable) definitions for 'civil law'.

The first is any set of law based on Justinian (ie Roman Law) and the
second is non-criminal law.

But let's focus on 'civil action' for a moment, a reasonable definition
for this might be,

A legal proceeding instituted to enforce private, civil right or remedy,
as distinguished from a criminal prosecution.

Now what do each of those first three have in common?

A redress of grievance, a righting of a wrong. The distinction is that it
relates to 'individuals' rather than society as a whole (ie criminal).

Why torts may or may not have been criminilized isn't at issue.

Whether a law violates a civil right guaranteed in the Constitution isn't
predicated upon it being civil or criminal. That it exists is all that is
relevant.

> > Ultimately the real question is:
> >
> > Is it constitutional to differentiate the
> > rights with respect to speech between civil
> > and criminal cases?
> 
> Sure, the Constitution is a document that outlines and limits the power of
> the state over the individual.  The common law is the summation of the
> rights and responsibilities as between individuals.  Apples & oranges.

Where does the Constitution allow common law? [It clearly does but I'd
like to see the spot you believe is the authoritative statement.]

What does it say that common law must be predicated upon?
[Hint: what must ALL US law be predicated upon?]

Does Justinian, or English law qualify?

When did Congress pass such a law?

Now, if Congress can't constitutionaly create criminal law relating to
speech where does it say it allows such an exception for civil? Does
"...shall make no law..." not include civil law? Does the constitution say
"You don't have a right to lie."?

I claim the right to 'lie' (re 9th)

Fed's want to regulate it? (re 10th)

It is clear that regulating speech is NOT prohibited from the states
originaly. However, we now have a specific amendment that spreads those
strictures to the states. So, in a situation where the fed's and the
state's are prohibited, per the 10th, who get's to decide the issue?

Do we have anybody suggesting a 'civil tort exception' amendment?

[ Note that my personal belief is that this is a 'bug' in the
  Constitution, something they didn't intend. I don't think anybody
  even looked at it from that perspective. ]

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         If the law is based on precedence, why is the Constitution
         not the final precedence since it's the primary authority?

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