FREE SPEECH — Those anonymous comments you've been posting online might not be as anonymous as you think, writes Hudson Sangree in the Sacramento Bee. But then both the guarantees and the blessings of online anonymity have been greatly overstated.
Last
week, a Sacramento judge opened a small window of opportunity for a
plaintiff in a lawsuit to discover the identities of individuals who
had posted derogatory comments about him on a Davis blog.The
case mirrors others across the nation as courts struggle to balance
anonymous speech online with the interests of litigants seeking
information.Many Internet user agreements warn
bloggers that they aren't guaranteed anonymity. And more and more,
those who file lawsuits are using the legal system to unmask attackers.Online anonymity is "a speed bump that's relatively easy to clear for people with legitimate causes of action," said Matt Zimmerman, an attorney with the Electronic Frontier Foundation.The San Francisco group is a leading advocate for anonymous speech on the Internet and is currently defending bloggers in Chicago against a subpoena by developers over comments against a controversial project.
A recent high-profile case in New York also highlighted the issue. Rosemary Port is suing Google after it revealed her as the anonymous blogger behind "Skanks in NYC," a site attacking model Liskula Cohen. A judge ordered Google to disclose Port's identity.
In the Sacramento case, a former police officer with the University of California, Davis, filed a lawsuit against the UC regents in February, claiming discrimination and breach of a settlement agreement in a prior lawsuit.
David Greenwald, who operates a blog called The People's Vanguard of Davis, wrote about the legal dispute, and his readers weighed in with comments.
Some of those comments, posted anonymously and under a pseudonym, caught the attention of the former UC police officer, Calvin Chang, and his attorney, Anthony Luti.
They believed UC insiders had posted the comments and wanted to find out who they were. In July, Luti served a subpoena on Google, the Vanguard's former host, demanding names, e-mail addresses and log-in information.
Google informed Greenwald, and his lawyer, Donald Mooney, filed a motion to quash the subpoena. He argued the information was protected by the First Amendment.
In a tentative ruling issued Tuesday in Sacramento Superior Court, Judge Shelleyanne Chang (no relation to the plaintiff) ruled mainly in Greenwald's favor.
But the judge said the plaintiff could pay an independent third party to perform an Internet address trace to determine if those who posted comments were the people he thought they were. Only then could their information be revealed, she ruled.
"The court agrees that if the comments posted on the blog were authored by 'managing agents' of the university, they would constitute evidence relevant to the existing claims against the university, including breach of the settlement agreement," the judge wrote.
*****
In California, a leading case was issued by a state appeals court in San Jose in early 2008. Called Krinsky v. Doe 6, it involved the head of a Florida company who sought the identities of people posting nasty remarks.
The court said the First Amendment generally protects anonymous speech, even though the Internet's informality leads many "to substitute gossip for accurate reporting" and engage in "harsh and unbridled invective."
But where plaintiffs can make a plausible case for defamation, the justices ruled, online anonymity may be breached. "When vigorous criticism descends into defamation," they wrote, "constitutional protection is no longer available."
The governing rule in California, as provided in Krinsky, means this for anonymous posters: in making unflattering statements about other people or organizations, anonymity will not protect you if a court concludes that your statement is actionable for libel. That is, you stand to be exposed if the person or organization you have offensively characterized, in seeking to unmask you with a subpoena, convinces the court that you have posted something about him, (or her or it) that
1. accused him of illegal, immoral, unethical, unprofessional, incompetent, criminal or otherwise seriously regrettable behavior, or
a. attributed to him some other condition that would lead the community to shun or avoid him, or
b. attributed to his company or other organization failings that will injure its business reputation, and
2. made the statement as a matter of actual fact, and not as:
a. simple name-calling or insult, or
b. inflamed rhetorical back-and-forth in a heated dispute, or
c. satirical exaggeration or spoofing, or
d. some other kind of expression too vague or subjective to be proven true or false, and
3. made the statement other than in quoting something said in the record of a court or other public proceeding, and
4. if the person issuing the subpoena is
a. a public official, or a "household name" celebrity, or a publicity-seeker who injected himself into a public controversy, and asserts that you libeled him knowing or suspecting the offending statement was false; or
b. a non-public person who asserts you libeled him, whether knowingly or not . . .
Complicated? Actually, this is an oversimplification. The reason that actual libel and slander trials a
re increasingly rare nowadays in California is because the law of defamation itself leaves plenty of room for free speech on matters of personal opinion or expression, especially having to do with government and public life, and because of California's anti-SLAPP motion, which is used to toss out nuisance suits and other unwinnable cases at the earliest stage. But despite all that protection, if the person seeking a subpoena in order to identify and sue you has an apparently viable case to pursue, you will likely be exposed and named as defendant. Or as the Krinsky court put it:
We . . . agree with those courts that have compelled the plaintiff
to make a prima facie showing of the elements of libel in order to
overcome a defendant's motion to quash a subpoena seeking his or her
identity. Where it is clear to the court that discovery of the
defendant's identity is necessary to pursue the plaintiff's claim, the
court may refuse to quash a third-party subpoena if the plaintiff
succeeds in setting forth evidence that a libelous statement has been
made. When there is a factual and legal basis for believing libel may have
occurred, the writer's message will not be protected by the First
Amendment.
This is as it should be. Legally recognized anonymity is fine for those who otherwise would be exposed to wrongful retaliation for telling the truth about situations needing correction (journalists' vulnerable sources, whistleblowers, law enforcement informants) or for exercising their First Amendment rights of speech, assembly, petition or association in addressing public issues. But there is no right to anonymous character assassination under the First Amendment, and never has been.
If this realization chilled even some of the monkey-screech online, none of us would be any poorer. So much of it shows up there only because, thanks to Congress, the Internest host is largely immune from liability for passively allowing even libelous comments to appear there. This immunity is a radical departure from the general (and ancient) rule imposed on publishers on paper, on the broadcast airwaves or on cable TV, making them fully exposed to libel or slander damages for whatever they present to the public, whether the defamation is "theirs" or that of someone they allow to speak on their pages or programs.
But it's doubtful that much monkey-screech will be deterred by the risk of being unmasked in case of actionable libel. Or at least it will probably take several well-publicized cases of substantial losses in court for the limits of anonymous nastiness to start hitting home. And that could take years and years.
