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Libel, or Liable to Make You Laugh? 

Are the people who posted some 13,000 Internet messages about subsidiaries of Varian Medical Systems funny First Amendment heroes or "despicable," obsessional liars?

Wednesday, Dec 5 2001
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 No one expects these messages to be completely believable." ( 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.

"I'm not sure if it's "dick_on_tape' or "dicks_on_tape' [that I used]," he says earnestly when asked about a particular alias. "The problem is, there are so many variations."

To complicate things further, Delfino and Day continue to make postings, and Varian's attorneys continue to use them as evidence. This week, the jury will have to determine whether the postings introduced are libelous or not, and which of the dozens of postings were probably written by Delfino and Day.

Meanwhile, attorneys for Varian have tried to discredit Delfino by presenting evidence of his undeniably spotty past. Varian attorneys point out that Delfino was fired from the company for allegedly harassing a supervisor -- by making faces, using profanity, and sabotaging her work, among other things. The "Internet terrorism" campaign began only days after Delfino was fired, Varian attorneys say. Some witnesses have also mentioned that Delfino was fired from his previous job on harassment charges. Delfino denies harassing anybody.

As Delfino's questioning continues, Varian's attorneys ask if he is proud of himself. "I am extremely proud of the postings," he says, swiveling in his chair to face the jury directly. "I am proud of the Web site, and of speaking up and defending myself and printing the truth. I'm proud of Mary's spunkiness and her determination to fight this incredible injustice."

As soon as Delfino and Day have their coffee in the morning, they begin posting. They post again at Internet cafes during the lunch break. And in the evening, when they've returned home from court, they are likely to be found at their iMac, crafting more searing commentary. But for all their prolific message posting, Delfino and Day are not the only ones lurking on the ever-shifting threads of the Internet dedicated to the Varian case.

The couple has, in fact, attracted a number of detractors, and on a few popular finance message boards, Delfino and Day regularly spar with their virtual enemies. One anti-Delfino poster, who uses the alias "crack_smoking_jesus," has even likened Delfino to "the Internet bin Laden."

And yet another group, which claims to have no ties to the case, says it became so frustrated by Delfino's mean-spiritedness and dissemination of "disinformation" that it created a Web site dedicated to offering a "more balanced" perspective on the lawsuit. This anonymous team says Delfino and Day are manipulative, First Amendment charlatans who are motivated by the idea of winning lots of money through countersuits, which ask for $50 million in damages.

"We were not originally involved, but got dragged into this by the incessant bickering, name calling, obscenities, impersonations, bad taste, repeated lies, and general ugliness of MDx2 [Delfino and Day] posts and behavior," the Web site says.

"At times it is funny in a way that Delfino and Day had not intended," adds one of the Web site team members via e-mail. "Other times, it is simply disgusting. ... The remainder of the time I consider it infuriating. But overall it is sad ... because Delfino and Day stand such a good chance of financial ruin, as a result of their stupidity and arrogance."

It is the noonday break, and Delfino reclines on a park bench to evaluate the morning's legal proceedings. Wearing a business suit and a shit-eating grin, he recalls a particularly amusing anecdote that he was able to slip into his morning testimony -- that the human resources manager at Varian had burped into a microphone when introducing herself at a company meeting. "I get very giddy with that kind of stuff," he told the jury; some members laughed aloud.

Delfino describes himself as an honest and "incorrigible" person with a good sense of humor. As a result, he says, he is also the "perfect target" for this lawsuit.

"If you ask people about these statements, people would say that it sounds like something I would say," he says.

"But I mean, who the hell are we?" Delfino continues, as if philosophically. "In the whole grand scheme of things, we are totally insignificant. We know where we are in the food chain. But these are two near-million-dollar corporations. If you called up Varian, we'd get dismissed as clowns or lunatics. Why would you spend all this money on clowns posting to message boards?"

About The Author

Bernice Yeung


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