Anonymous posters must be revealed in defamation cases

As an active participant in government affairs, I have seen my share of anonymous blogs and online reader comments under newspaper articles. At times, they can be quite unflattering to put it mildly. There is no question that many of the comments are robust and shed sunlight on issues of the day. But sometimes the comments cross the line and are defamatory. Back in July, I expressed concern about the increase in the use of these anonymous postings on newspaper and other blogs (click here to read that post). An Illinois court decision from last week urged me to explore this topic further.

On November 9, an Illinois judge issued an order to a newspaper compelling it to disclose an unknown individual using the pseudonym “Hip check 16″ who made a posting on the Daily Herald website which defamed a Buffalo Grove Village Trustee’s minor son. You can read the story of that case by clicking here. In the ruling, the court noted that the right to speak anonymously, on the internet or otherwise, is not absolute and does not protect speech that would otherwise be unprotected. The right to speak must be balanced against the right of an offended party to seek redress.

There is no doubt that speech on the internet receives First Amendment protection and that includes protection for anonymous speech. The United States Supreme Court reaffirmed that right in Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 199 (1999). In that case, the Court also recognized the Internet as a valuable forum for robust exchange and debate. The opinion goes on to say that through the use of online devices “any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Courts also recognize that anonymity is a particularly important component of Internet speech. Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas; the constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded.”

At the same time, however, there is no right to freely defame others. As with most freedoms, we must heed to the words of Oliver Wendell Holmes who said: “The right to swing my fist ends where the other man’s nose begins.” And that’s what we must consider when balancing the rights of anonymous posters with the right of others to protect their good names.

Here is a look at some other cases which have cropped up around the country on this issue:

A Tennessee state court ruled in October Donald and Terry Keller Swartz are entitled to discover the identity of the anonymous blogger behind the Stop Swartz blog who published critical statements about them and encouraged readers to post information on their whereabouts and activities. In his decision, Judge Thomas W. Brothers adopted a legal standard highly protective of anonymous online speech, but found that the Swartzes had come forward with sufficient evidence in support of their claims of wrongdoing to outweigh the anonymous blogger’s right to anonymity. This video clip of the actual court hearing in that case gives you a firsthand look at the legal issues presented. Click here to view it.

In Doe I v. Individuals, 561 F. Supp. 2d 249, 254-56 (D. Conn. 2008), female students at Yale Law School sued unknown individuals using thirty-nine different pseudonymous names to post on a law school admissions website named AutoAdmit.com. A number of anonymous posts contained threatening and derogatory comments about minority groups, sexuality, and incitement of criminal activity. In that case, the court ordered the web provider to disclose the blogger’s identity and noted that the plaintiff had shown sufficient evidence supporting a prima facie case for libel, and thus the balancing test of the plaintiff’s interest in pursuing discovery in this case outweighed the defendant’s First Amendment right to speak anonymously.

For further reading, and to see how other courts have ruled on these issues (both for and against disclosure), click the links to the following decisions: Solers, Inc. v. Doe, 977 A.2d 941, 954-57 (D.C. 2009); Sinclair v. TubeSockTedD, 2009 WL 320408, at *2 (D.D.C. Feb. 10, 2009); Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008);); Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp.2d 1205, 1216 (D. Nev. 2008); Mobilisa v. Doe, 170 P.3d 712, 720-21 (Ariz. Ct. App. 2007); Greenbaum v. Google, 845 N.Y.S.2d 695, 698-99 (N.Y. Sup. Ct. 2007); In re Does 1-10, ;”>242 S.W.3d 805, 822-23 (Tex. Ct. App. 2007); McMann v. Doe, 460 F. Supp.2d 259, 268 (D. Mass. 2006); Highfields Capital Mgmt. v. Doe, 385 F. Supp.2d 969, 975-76 (N.D. Cal. 2005);  Doe v. Cahill, 884 A.2d 451 (Del. 2005). Best Western Int’l v. Doe, 2006 WL 2091695, at * (D. Ariz. 2006); Reunion Indus. v. Doe, 2007 WL 1453491 (Penn. Ct. Comm. Pleas Mar. 5, 2007).

The bottom line is robust dialog is always welcome. But defamatory speech is not. It is good to see that the courts are willing to open the doors to the anonymous world when speech crosses the line. That should serve as notice to posters that they should consider the legal, moral and ethical components of their comments. And they should be careful with their facts. Because if they are not, the courts will offer assistance to those who seek redress.