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The right to anonymous Internet speech survives

As a constitutional lawyer, it never ceases to amaze me how often people bring defamation suits for offensive comments that no one gives a damn about. Defamation lawsuits only bring more attention to the offensive statement, and these cases are expensive to bring and often yield little in the way of monetary damages, if the case even survives a motion to dismiss on the basis that the statement was not a defamatory statement of fact ("Joe is a criminal") but an expression of opinion ("Joe is a jackass"), which is constitutionally protected.

The rules of defamation law are over 100 years old, created when newspapers and pamphlets were the only way to convey information. With the Internet age upon us, courts have to apply those rules to the modern era, when on-line statements live forever and wind up in Google's search field which anyone can access. This has not been easy for the courts. In the past, newspapers and authors were regarded as professionals who would stand behind their work. But in the Internet age, anonymous speech is all around us, and you can damned well say whatever you want.

Except that you can't always say what you want. The latest court decision on Internet defamation comes out of Maryland, where the court had to determine whether someone claiming defamation from an Internet message board can find out the identity of the anonymous writers. The court sided with free speech, noting first that the First Amendment has always protected the right of anonymous speech, with some limitations if the speech is defamatory.

Against this background, the Maryland court noted that "Courts and commentators alike have emphasized the importance of extending free speech protections to the Internet, recognizing the Internet as capable of 'democratizing' the very 'nature of public discourse,' by permitting anyone with a computer to “become a town crier with a voice that resonates farther than it could from any soapbox.'�

In this case, a businessman sued a newspaper and some "John Doe" defendants who allegedly defamated him on the paper's discussion board in stating on-line that his fast-food restaurant was filthy. The question was: how can the businessman find out the anonymous posters? Does the newspaper have to produce their names?

I know that most people reading this are not lawyers, so take my word for it when I say that the court created a legal standard for when newspapers have to produce the names of anonymous Internet posters that makes it difficult for defamation plaintiffs to get what they want. This is good news. There are too many anonymous comments and too many opportunities for these lawsuits such that defamation cases would flood the courts, a bad thing in light of the First Amendment's protections in favor of anonymous speech. The multi-part standard, below, is too time-consuming for most people to bother with, which is just as well because most defamatory comments on-line are either ignored or no one gives a damn, anyway.

Here's how the Washington Post describes the court ruling: "Operators of newspaper Web sites, blogs and chat rooms that allow readers to post anonymous comments using pseudonyms do not have to readily reveal the posters' identities in defamation suits, Maryland's highest court ruled yesterday, further shaping an emerging area of First Amendment law in the Internet age."

Here's the legal standard, in any event:

When a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should, (1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.

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This page contains a single entry from the blog posted on March 2, 2009 9:36 AM.

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