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It is a crisp fall afternoon in early November, and Michelangelo Delfino takes a seat on a bench in San Jose's seedy St. James Park, across the street from the Santa Clara Superior Courthouse. For about three weeks, since the trial for a libel lawsuit against him began, Delfino has been seeking fresh air in the park during court recesses.
A scientist and engineer in his 50s, Delfino, along with his co-defendant, Mary Day (who is also his business partner and girlfriend), breathes deeply, glad to be away from Courtroom 22, where they have spent the past 15 days under accusations of defamation, invasion of privacy, and "Internet terrorism," among other things. The couple are being sued by two subsidiaries of Varian Medical Systems, the company they used to work for, because they allegedly conspired on libelous postings to Internet message boards in 1998 and 1999.
The postings that inspired the lawsuit are critical of the company. Some impersonate supervisors, while others insinuate that company leaders are incompetent, fat, mentally unstable, chronic liars, neurotic, or engaged in extramarital affairs.
Delfino and Day admit to making some postings -- using aliases such as "oh_no_dirty_dick_levy" and "felch_makes_me_vomit" -- but they deny penning the overtly libelous ones. They say they have been wrongly accused, and the real issue at hand is freedom of speech. Indeed, Delfino and Day claim to be champions of the First Amendment, and have become skillful at employing its rhetoric.
"This is truly a First Amendment fight," Delfino insists. "Everything we post is either opinion, hyperbole, or the truth."
But Varian's attorney says Delfino and Day's behavior has been "despicable," and that their false statements of fact are not protected speech.
The case is thought to be one of the first Internet libel cases to go to trial, though legal scholars say that doesn't necessarily mean much -- libel law on the Internet does not differ from any other medium.
But Randall Widmann, Day's attorney, says that the Internet does change the game, even if only slightly. "The Internet is an interesting landscape because it is unregulated, and people use aliases," Widmann says. "And people say outrageous things on the Internet all the time. There's an incredible exchange that goes on on message boards, or on Web sites like FuckedCompany.com. No one expects these messages to be completely believable." (FuckedCompany.com has also recently become tangentially entangled in a libel lawsuit over messages posted on its site.)
And throughout the course of the lawsuit, Delfino and Day have used the Internet to respond in unconventional ways. Once they became part of the lawsuit, the couple began making even more Internet postings about Varian and its supervisors -- against their attorneys' advice. Most of these estimated 13,000 new postings have been scathing, and some have been introduced as evidence against them. The duo also created a Web site dedicated entirely to the lawsuit, where they engage in outright name-calling and publish callous commentary to the trial's proceedings. The site has received more than 43,000 hits from as far away as Saudi Arabia.
Delfino and Day, who are using their 401(K) plans to pay their household bills and court costs, say that though they are emotionally and financially exhausted by the lawsuit, they "refuse to be silenced."
"We're pushing that line [of free speech], and we intend to push that line," Delfino says. "We are obsessed, consumed. We are determined. We are relentless. We believe we have the right to post, and they can never stop us from posting. We will post until we die."
It's a few hours earlier, and Michelangelo Delfino is sauntering to the front of the courtroom to take the stand. His responses there are long-winded and meandering, forcing the judge to periodically remind him that he had been asked a simple yes or no question. Occasionally, Delfino scrunches up his face, or giggles unceremoniously at a joke that only he seems to understand.
Day sits in the front row with a red notebook, furiously scribbling comments for future Internet postings. Varian supervisors, who have taken time off work to sit through the entire weeks-long trial, whisper comments to one another like gossiping schoolchildren.
The courtroom only hints at the level of animosity between the two parties. Now in its third year, the case -- which involves more than 40 volumes of documents -- has spiraled into a quagmire of libel and harassment claims that extend far beyond the Internet postings. Among them, Delfino says that Varian used cameras to videotape employees in the bathroom; Varian says the camera was merely pointed toward the bathroom door to catch Delfino in the act of harassing his supervisor, and that he has defamed the company by making the allegation.
But the Internet postings are overwhelming on their own. In Varian's original complaint, Delfino and Day are accused of using about 200 aliases to post an unspecified number of defamatory messages. Delfino and Day, however, admit to using only 78; they say other ex-Varian employees are behind the libelous postings.
Though Yahoo! provided identity information on some aliases when subpoenaed, there are some aliases behind the alleged defamatory postings that are still unaccounted for. As a result, Delfino has been called to the stand to testify whether or not he admitted to using particular pseudonyms, a process that lasts several hours.