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Chat Cats: Mary Day and Michelangelo Delfino, aside from posting more than 20,000 messages about Varian on the Internet, also published a book about their experience, 'Be Careful Who you SLAPP.'

InterNot Free Speech

How a petty squabble between Palo Alto's Varian Associates and two disgruntled former employees with a penchant for Internet flaming has escalated into the most costly, bizarre and important Internet free-speech fight in the country, one that will determine what you can and can't say on the Internet without going to jail

By Najeeb Hasan

ON MARCH 13, during a quiet afternoon session in a San Jose federal courtroom, a man accused of being a terrorist made his initial appearance for arraignment proceedings. Unlike the drug dealer on the docket in front of him, who was outfitted in garish fluorescent-orange prison garb and led from a holding cell to appear before the judge by an officer of the court, the alleged terrorist, out on a $10,000 unsecured bond, sat patiently in the gallery behind his attorney and needed no such assistance to approach the judge.

Heavyset and clean-shaven, with his 340-pound frame squeezed into a smart ivory sports coat and matching trousers, he reflected a much different persona than did his mug shot from the Sheriff's Department in Larimer County, Colo., where he was apprehended. In that picture, Dr. Cameron Moore, labeled, perhaps rather gratuitously, a terrorist by Los Altos residents Michelangelo Delfino and Mary Day, appears far more frightening, far more, well, terroristlike. But he seemed soft-spoken, awkward and almost huggable in the courtroom. Gone was the unkempt beard and dilated, staring eyes, which were flat-out menacing in the mug shot.

Moore, charged with sending threatening email messages to Delfino and Day, made a brief appearance before United States District Court Judge Howard Lloyd. The judge, after reminding him about the conditions of his bond, merely informed Moore that, if convicted, he could face a maximum of five years in federal prison and a $250,000 fine. Before being excused, Moore was sternly cautioned not to have any interaction with Delfino, Day, their attorneys and Day's two daughters.

"Don't even look at them," Judge Lloyd commanded before Moore went back to his room at the Fairmont. "Don't go where they are."

Seated to the right of their attorney, Jonathan Eisenberg, in the first row of the courtroom, Delfino and Day gazed intently at the proceedings. Earlier, they had composed a flier on their website (www.geocities.com/mobeta_inc) that advertised Moore's arraignment. Just above and below a yellow "GO DIRECTLY TO JAIL" Monopoly card, the homemade flier proclaimed, "TERRORIST ARRESTED" and "Initial Appearance of a TERRORIST," respectively.

A few days later, in their shared Los Altos home (which, says Delfino, is "in the funky part of Los Altos"), the two explain why they regard Moore as a terrorist--in standard dictionaries, the word is roughly defined as anyone who uses fear or violence to intimidate or subjugate. Not only has Moore admitted to the FBI he posted threatening Internet messages, but, they assert, Moore has also called them at their home making machine-gun-like noises at odd hours of the night and, during a business trip to Palo Alto, has stalked Day's daughters.

Moore's messages, some of which appear in an affidavit prepared by an FBI agent, were, indeed, threatening. They were made under the Yahoo aliases "crack_smoking_jesus," "dr_dweezil2001" and "dr_camster." His scrawlings to Delfino and Day (among many other postings) contain such lines as "...that Mikey is going to DIE real soon. I heard he pissed off the wrong people. Expected for a LOSER."; "It's coming ... and you won't see it. I seriously hope you have health insurance because you're going to get ... stomped by me and some friends. The best part will be you won't be able to prove it was me--I already have proof I was somewhere else"; and "You can look forward to all your fingers getting broken, several kicks to the ribs and mouth, break some teeth, and a cracked head. Also, your car will be trashed and your computer destroyed. Maybe set your place on fire so you can be evicted. ...And you'll never know when the hammer is coming down on YOU ..."

And so, on March 13, a protracted and pivotal Internet-rights struggle took yet another strange twist. Since late February 1999, Delfino and Day themselves have been standing as the accused in the courthouse for their postings on the Internet. The two have been pitted against their former employers, Palo Alto corporations Varian Medical Systems and Varian Semiconductor (in 1999, both were part of Fortune 500 company Varian Associates), in a high-stakes legal tug of war in which one side claims free speech and the other, defamation.

The just-arraigned Moore, with his alleged Internet threats, has taken the side of Varian--and its executives--which has according to some accounts spent $6.5 million trying to quiet the former workers. Delfino and Day maintain that Moore is really an acquaintance of one of Varian's maligned executives and is part of attempts to try to intimidate them into silence, a charge Varian denies.

And so, after four years, a lost jury verdict, a pending appeals judgment, $1.5 million in legal fees and 20,000 sometimes gleeful, sometimes incendiary, sometimes juvenile but always purposeful Internet postings to their name, Delfino and Day, with newly charged Cameron Moore as Exhibit A, seem ready for the stretch run.

If Delfino and Day lose their appeal in the 6th District Court (a decision is expected by fall), the implications for free speech on the Internet appear chilly. One of the questions, their attorney Eisenberg says, is, "Can a trial judge order them not to speak anymore on the Internet? Is it constitutional? ... The jury returned the verdict, and [Santa Clara County Superior Court] Judge [Jack] Komar ordered [Delfino] not to say [certain] things anymore. Komar issued a prior restraint: You shalt shut up. What makes this case significant is that once a judge says, 'Thou shalt shut up,' you can't just get sued, you can get sent to jail."

Children's Antics

Michelangelo Delfino was fired from Varian Associates 4 1/2 years ago. He's 53 years old, with cropped, grizzled hair poking out in no particular pattern from his scalp and chin. He's tall, has a sturdy build and prefers T-shirts and old jeans to almost anything else. Originally from New York, he has lost neither his East Coast edge nor the clipped accent. His face, with black wire-rimmed glasses perched on his nose, is expressive and friendly. Educated at St. Johns and Fordham University, he holds a doctorate in chemical physics. And he's quick to protect his rights, even in everyday conversation: "Let me finish my sentence," he tells common-law partner Mary Day when she interrupts his train
of thought.

Before his termination, Delfino had worked for 10 years as a researcher in Varian's Ginzton Research Center, mostly with admirable results. He was a scientist with more than 20 patents to his name. He enjoyed both his research and his paychecks. He had even met Day, herself a geology major from Occidental College, at Varian, and the two, both divorced, had been--at the point of his firing--romantically linked for seven years.

Delfino's downfall at Varian ostensibly began when his relationship with colleague Susan Felch soured. Delfino readily admits that he had begun to ignore Felch, whose incessant gossip, Delfino says, irritated him. He refused to speak with her and would not look at her when they passed by each other. Because they worked in different technical areas--he in the Research Center; she was the manager of Varian's Ion Implantation Laboratory--his silent treatment was natural on a professional level but awkward personally in that their offices were in close proximity to each other.

After two years of receiving his silent treatment, Felch, who did not return telephone calls from Metro for this story, proceeded, according to court depositions and Delfino, to file formal complaints of harassment against Delfino. She recorded two instances when Delfino without provocation used abrasive profanity against her and then began claiming Delfino mocked her propensity to talk.

In fact, Felch reported to both Delfino's immediate supervisor, George Zdasiuk, and Varian Human Resources officer Jane Crisler that Delfino employed a hand telephone gesture ("with the thumb up towards your ear and the pinky down looking like the receiver near your mouth," was how Felch described the movement in a deposition) to imitate her whenever he spotted her speaking on the phone. Worse still, because the men's restroom was located directly across from her office, Delfino was afforded the opportunity to perform this telephone gesture on a regular basis.

"When you read this stuff," remarks a bemused Jonathan Eisenberg, "it sounds like children arguing on a playground, which usually the teacher chooses to ignore. But this time, the teacher didn't ignore it."

Indeed, both Felch, who holds a Ph.D. from Stanford University, and Varian were concerned enough with Delfino's antics that the multimillion-dollar corporation initiated a formal internal investigation. Zdasiuk would firmly bring up Felch's allegations in private meetings with Delfino, and Delfino would, just as firmly, categorically deny them.

The investigation, it seemed, was getting nowhere.

Finally, Felch and Varian decided the situation was dire enough to warrant a technological solution. A black-and-white surveillance camera was positioned, without Delfino's knowledge, on Felch's windowsill with its lens angled to capture the entryway to the men's restroom.

Craig Moro, the Varian security employee who installed the camera, was given the dubious duty of examining the restroom recordings. In the end, this effort, like Zdasiuk's cautioning, also proved agonizingly fruitless--the results of the surveillance, Moro said in a deposition, were inconclusive. Delfino was caught (as undoubtedly were others, including, as Delfino and Day would later post on the Internet with delighted horror, perhaps even children) going in and out of the restroom, but no incriminating telephone gestures were caught. There would be no smoking gun.

Varian could not locate the surveillance film during legal proceedings.

Nevertheless, four months after the surveillance camera's abject failures in the quest for hard evidence, Delfino, in what was to be both the first step and fodder for the events ahead, was fired--though with a 10-week severance agreement. Less than three months later, Day, accused by Felch of making similar telephone gestures after Delfino's departure, voluntarily walked away from 15 years of employment at Varian with a 15-week severance package of her own.

Fuhgeta About It

The first posting, made on Oct. 12, 1998 (four days after Delfino's termination), on the Yahoo! financial message board for Varian Associates (VAR) under the alias of MANUFORTE, appeared quietly and without flair. Delfino, who even signed his name at the end, simply thanked other posters and co-workers for their concern about his departure from Varian and remarked that he would continue posting.

He kept his promise.

For the next four months, Delfino would continue to post regularly about Varian and its executives, mostly Susan Felch and George Zdasiuk, on Internet financial message boards. He had never been savvy about the Internet (he did not even own a personal computer), and in some respects, it seemed a new world had opened up for him since his days at Varian.

The Internet message boards, he says, provided him with a medium with which to vent his frustrations with Varian. Compared with what was to come, his early postings were almost mundane, consisting mostly of general criticisms of his former company (he still held stock) and poking fun at its executives (Day, both she and Delfino contend, did not post initially): "O'Rourke, the two Dicks and Al are no angels either"; "The Dicks haven't been able to get it up for years. What makes you think they can keep it down now?"; and "By the way, she [Susan Felch] does not look good in red ..."

Delfino used an array of aliases, including ah_michelangelo, MANUFORTE, morerumours and, his favorite, GINO_IN_TORINO:

Me anda mya Gina wea thinka the compania, shesa screwa usa. Howa com now da dooe dicks changa da policy! No mora stocka options! No mora stocka purchase! My Gina shesa a ona smart cookie. Shesa tella me hey gino, no mora stock purchase plan, I beta youa the price shesa gonna go up, up, up. My Gina seza, I beta ya da Dicks gonna get it up! And by golly, my Gina shesa right! When it coma to gettin it up, sheza know wat she talkin about. And onea a mora ding, isa Georgio anda a Suzie a ding or waa? I meana are theya gettin ita up too? Fuhgeta about it.

When Varian filed suit against him for those early postings that he admitted to composing--totaling 60 in number--the company also included in its complaint another, larger batch of postings that neither Delfino nor Day admitted to making but are proud to support.

These additional postings (at the time, some 150 in number), some of which appeared on now-defunct financial message board Stock-Talk, were more offensive. Varian's attorneys, Orrick, Herrington & Sutcliffe, concluded that Delfino's alleged postings suggested, among other things, "adulterous affairs between Felch and Zdasiuk," that Felch and Zdasiuk were both incompetent at their professions and that both are "liars."

One Stock-Talk posting, which the message board said was posted by "Associate Director Susan b. Felch" but which Orrick contends was the work of Delfino, read:

Dear Varian employees,
I have worked for Varian in Palo Alto for more than 15 years and have yet to put a full day's work. I mean, who really cares anyway. The man who used to be in my life, Kevin, also used to work here, but now he's gone, so now I play with George Zdasiuk. George is alot heavier than Kevin, but alot less demanding. For one, he doesn't make fun of my squeaky voice and how I dress. So there. I just wish he'd stop making faces at me ...

And, another on the same board, again by a writer pretending to be Susan Felch:

George, I love you as much as I love Dick. I only wish you weren't so fat.

The problem, as Varian's attorneys quickly found out, with ascribing messages to Delfino without him admitting to writing them, was the nebulous nature of the Internet. For their initial complaint, Orrick had simply collected any and all postings that had content they believed Delfino would sink low enough to write. Because the plaintiffs in the lawsuit against Delfino (and later Day) were not only Varian but also Felch and Zdasiuk (although Varian footed the attorney's bill for both), any posting that insulted the two executives was caught up in the sweep.

Indeed, during the discovery process, several aliases once ascribed to Delfino or Day were quietly dropped once Orrick subpoenas determined the true identities behind those aliases. None of the revealed culprits have ever been named in defamation charges, even though their postings were considered defamatory when they were thought to be from Delfino or Day.

"To me, that was one of the most ludicrous points," Delfino says. "It was sort of like admitting to murdering 500 people, but there were five more bodies we wouldn't admit to. I mean, if we murdered 500 people, why wouldn't we admit to those five bodies [unless we really didn't kill them]? We even posted during the trial, during lunch. We're very proud of all our postings."

Adds Day: "We admitted to thousands of postings. There was no shortage. It was an attempt by them to try to make us look like liars."

Flaming Names

Orrick, meanwhile, began the task of proving defamation. Attorney Matthew Poppe (Delfino and Day refer to him as POOP in their postings; Poppe, in turn, refers to them as "the evildoers") says while the preponderance of postings made his case, some, especially those that appeared on Stock-Talk, were especially damning. But in the end, only two of the original Stock-Talk postings were definitively linked to Delfino and Day (though others, but only because of similar themes and evidence, were as well). Stock-Talk was different from Yahoo! in that no formal registration was needed. Any Internet user can began to post messages under any alias.

"For example, a posting that we were interested in was a posting that had Susan Felch saying something like, 'Oh, George, I had such a wonderful evening with you,'" says Poppe. Because there was no registered account that Orrick could link the posting to, he subpoenaed Stock-Talk for the Internet Protocol (IP) addresses of where the messages were sent from, Poppe continues.

The IP addresses, Orrick found, belonged to an Internet provider called UUnet. Orrick then subpoenaed UUnet and discovered the IP addresses were in a range that belonged to GTE. A subpoena to GTE informed them that the IP addresses were assigned to Kinko's stores in Mountain View and Cupertino. Finally, the dogged law firm subpoenaed Kinko's for its security video tapes and triumphantly said they found Delfino and Day seated at computer terminals during two of the times in question.

Delfino, naturally, has problems with the findings of Orrick's costly chain of subpoenas, including questions about time stamps on security videos that were not calibrated, depositions by Kinko's in which it could identify neither him nor Day and questions about why he and Day appear in only selected videos and not in all the slots when the Stock-Talk postings took place.

Perhaps more importantly though, because Judge Ronald Whyte accepted Orrick's version of the Stock-Talk discovery, in November 1999 Delfino was found in civil contempt for violating a preliminary injunction that had prohibited him from impersonating Susan Felch on the Internet. Though, after a six-month hiatus that was recommended by his attorney when the lawsuit was filed, Delfino had resumed posting and Day had begun posting in August, the contempt ruling had only strengthened their resolve, and those first 60 admitted messages ballooned to the thousands.

Being accused of posting Stock-Talk messages that they didn't write, which set the framework for the violated preliminary injunction that informed them what they could and could not write, only inflamed them.

"We never called Zdasiuk fat," Day angrily says. "But when you put in a legal document that you can't call a fat person fat, then I wanna yell from a mountain top that that man is FAT."

And so, Delfino and Day went on what could be termed as message-board rampage. Even their appellate attorneys would acknowledge in their brief to the court that their clients' postings were "often offensive and occasionally vile."

Zdasiuk was fat; he had gastrointestinal problems; Felch had a Lewinsky-like stain on her dress; she was either a liar or hallucinatory; Varian's top executives, Richard Levy and Richard Aurelio, were mercilessly ridiculed for their identical nicknames, Dick and Dick (in the Varian offices, Delfino confides, Levy was called Big Dick and Aurelio, who is unusually short, Little Dick). The two vowed to post until they died and haven't stopped, save for a five-day stretch during the aftermath of the World Trade Center bombings.

And predictably, their resolve, coupled with postings that they do not admit to, produced depositions that have provided unparalleled legal comedy. Zdasiuk, who seemed especially uncomfortable being questioned, was forced to squirm through questioning about his weight (in fact, both his wife, Julie Fouquet, and Felch were also questioned about his weight) and finally admitted that both his wife and mother had told him he was overweight.

Then, in response to questioning about the veracity of the homophobic implications of a Stock-Talk posting that impersonated him and read, "No one likes Dick more than I do. No one, not even you Sue," he said, "I'm not claiming it was a false statement. I'm claiming it was defamatory," and also, in an attempt to prove emotional distress, managed to admit under oath that the message-board postings taken over time upset him more than the World Trade Center tragedy, which had occurred just a week earlier.

But by far the most classic excerpt came from Day's deposition as she fielded questions from Orrick's Joseph Liburt about her use of the name "Dick":

LIBURT: OK. My question was more general than asking about Mr. Aurelio. I want to know if you are aware, however you became aware, that the word "Dick" is sometimes used to describe people in a derogatory way.

DAY: I--it doesn't come into my repertoire. It's not a--

LIBURT: What do you mean, it doesn't come into your repertoire?

DAY: The people I associate with don't use that term in a derogatory fashion. As I said, I called Dick Aurelio "Dick Aurelio" and Dick Levy "Dick Levy." My dad's name was Dick. I didn't insult him when I called him Dick, so--I hope I didn't.


LIBURT: What do you mean when you wrote, "The CEO of MoBeta, Inc. [the name of a company Day and Delfino incorporated after leaving Varian] is not a Dick"?

DAY: My name is not Dick.

LIBURT: That's the only meaning you intended?

DAY: I mean, that's--yeah, that seems to be an obvious.

WIDMANN [Day's attorney]: The record should reflect that the spelling of "Dick" is with initial cap "D-i-c-k," by the way.

LIBURT: OK. Well, I didn't ask you whether it's obvious. I asked you what you intended. Was the only meaning that you intended to express that the CEO of MoBeta's name is not Dick?

DAY: I can answer what I interpret today, and that is that I'm the CEO of MoBeta, and my name is not capital D-i-c-k. And that's what the statement says, so I have no problem with that statement.

Slander or Libel?

The former public defender's 12th-floor office off Broadway in Oakland is tidy, decorated tastefully but sparsely. Jonathan Eisenberg, along with partner Jeremy Rosen, is handling Day and Delfino's appeal after the two lost the jury verdict in Superior Court in San Jose 15 months ago.

Eisenberg says his main concern will be to have the case heard as a slander case and not, as Varian's attorneys want, as libel. Generally, slander is understood to occur in a fleeting, spoken context while libel takes place in a more enduring, written context. The key for Eisenberg is that, because of slander's fleeting nature, to prove slander the plaintiff must also show economic loss. For a libel case, no such proof is required. Varian, Felch and Zdasiuk appear to have had suffered absolutely no professional or economic loss through Delfino and Day's antics.

In California, there is no legal precedence about whether Internet postings fall under slander or libel. And herein lies the rub. Radio and television are, in most states, prey to libel suits,. But not in California; in California, slander and, consequently, economic loss must be proven in radio and television cases. The nature of the Internet, Eisenberg argues, is fleeting rather than enduring--posted messages often vanish the next day, websites constantly appear and disappear. And further, he poses, how can Internet postings be considered defamation if nobody takes them as truth anyway?

"Susan Felch has a semen stain on her dress ... does anybody believe that's true?" asks Eisenberg. "It's flaming on an anonymous message board. Nobody looks at that message as truth. This is not defamation--the things people will say thinking it will be never traced back to them. I don't think any of the denizens on message boards think it's true. It's flaming, nothing more."

And so, while Eisenberg was fleshing out his legal arguments for the appeal, crack_smoking_jesus, he says, "reared his ugly head." This Internet poster, now known as Moore, apparently was obsessed with the Delfino and Day case. He had drawn cartoons about the two; he had composed song lyrics about the two; and, of course, he had threatened to harm the two.

And Eisenberg wanted to know why a stranger from Colorado--even an outright weirdo--would have such a specific interest.

With a practiced flourish, Eisenberg slaps down on his desk a copy of a video he still believes to be of Cameron Moore, the man accused of threatening his clients' lives on the Internet. Already on his desk are two pictures that he is certain are Moore's--one, his high school yearbook portrait from 1975 and the other, the mug shot from the Larimer County Sheriff's Department. The still that Eisenberg placed next to the other shots of Moore (the men in all three images shared a similar mole and, according to an Eisenberg facial expert, a similar philtrum, the indention above the lip), it turns out, was taken from a 1987 video of George Zdasiuk's wedding.

Varian attorney Poppe, though, says Moore was not at Zdasiuk's wedding and that the man in the wedding video is simply an old college buddy of Zdasiuk's.

Eisenberg also, interestingly, discovered that Cameron Moore had been a co-worker of Julie Fouquet's (the wife of Zdasiuk). Currently, both Moore and Fouquet are employed at Agilent Technologies, Moore in Colorado and Fouquet in Silicon Valley. However, Eisenberg says, in 1999 both worked in similar fields for Hewlett-Packard in Santa Clara County.

Neither Zdasiuk nor Varian would comment for this story, citing the pending litigation.

And so, Eisenberg is left alone to ponder about the implications of his case. He swivels in his seat and logs on to the Yahoo! VAR message board.

"Let's see what we have today," he says. He clicks on the first message, one of the thousands of anti-Delfino-and-Day messages that have popped up since the struggle began. He reads: "'Mike Delfino = Feces Fanatic.' Is that legally actionable? I know Mike Delfino. I do not believe Mike Delfino is a feces fanatic. I do not believe that this should be defamation. ... I think the culture should drive the law. I don't think the culture should produce abstract values on the law. ... Is this what our culture has come to? Mike Delfino = Feces Fanatic? Is it actionable? It's what the culture is. Flamers on the Internet have brought this to the American culture. I think the law has to recognize this is our culture, whether we like it or not."

He adds, "You won't catch me putting 'Feces Fanatic' on the Internet. On the other hand, I have used words like 'cocksucker.' But I'm not gonna say ...[that] in appeals court. It's context."


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From the March 27-April 2, 2003 issue of Metro, Silicon Valley's Weekly Newspaper.

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