Guarding the unnamed writers of the Internet

From the Fall 2008 issue of The News Media & The Law, page 34.

An angry police chief in Tennessee tried to unmask a group of anonymous bloggers who criticized his leadership.

In Texas, a hospital sought the identity of a blogger who wrote about the local health care industry’s financial concerns.

And in Montana, a small-town political candidate subpoenaed the local newspaper for the names of writers who commented anonymously about him on the paper’s Web site.

In all those cases, and many more like them, the bloggers won.

In the rapidly growing universe of blogs, from the local mom documenting her toddler’s “terrible twos” to professional commentary pages like Wonkette, from The New York Times’s City Room to the Reporters Committee’s own Web site — all of which allow anonymous writers or commenters — anonymous speech is broadly seen as essential to the medium. But over the past few years, hundreds of lawsuits have been filed seeking to out anonymous bloggers.

And as the unnamed voices have proliferated and lawsuits seeking to unmask them have multiplied, several legal questions have arisen about how and when to protect anonymous speakers. According to legal experts, many of those questions are finally getting answered. And the law is developing in a way that is protecting the bloggers.

“It’s hard to really get your head around what is really happening out there,” said Sam Bayard, assistant director of the Citizen Media Law Project at Harvard University’s law school. “The legal standards emerging are protective of anonymous speech. I think the law is favorable.”

Free speech advocates have developed a variety of tools to successfully fight these suits — from the adaptation of state shield laws, to the emergence of a balancing test that weighs the value of anonymous speech, to the use of computer software allowing for total anonymity so that even the site host can’t reveal identities even if it wants to.

Battles in the blogosphere

The Citizen Media Law Project tracks legal threats against bloggers. According to their online database, there have been nearly 100 such threats in the past few years involving anonymous speakers on the Web, ranging from e-mail take-down notices to subpoenas to defamation lawsuits. And that’s probably not all of them, Bayard said, because there are many cases that never become public.

“The trend is that there is more litigation and more pressure being put on anonymous speech,” said Sandra Baron, executive director of the Media Law Resource Center in New York. “The question is what anonymous speech will be protected, to what degree and which tests courts apply.”

An anonymous blogger in Memphis, Tenn., understands that pressure. Going by the pseudonym “Dirk Diggler” (a reference to the film Boogie Nights), a local police officer started a blog that allowed people to express their opinions about the local police chief.

He called it MPD Enforcer 2.0. The blog polled readers on the “dumbest idea to come out of the MPD” (winner in a list of six items: “All of the above”) and whether Police Chief Larry Godwin should be fired (93 percent voted yes).

When Godwin caught wind of what his officers were doing, he struck back with a lawsuit and subpoenaed Diggler’s Internet Service Provider for his real identity. After a three-month legal battle, Diggler won. Godwin withdrew the lawsuit and the subpoena; no anonymous writers were outed.

The experience strained Diggler, taking his time and money, but he emerged committed to the value of free speech.

“Fighting the lawsuit has made me more determined,” Diggler said in an interview. “We are in serious trouble here, and the only way to change it is citizen involvement.”

Another anonymous blogger in Texas was caught up in a similar legal scandal.

The blogger, using the pseudonym “Frank Pasquale,” was sued in 2007 for defamation when he posted critical remarks about a local hospital on his blog, The Paris-Site. The blog focuses on issues related to Paris Regional Medical Center, ranging from the hospital’s budget concerns to a broader debate over universal health care.

Essent Healthcare, Inc., the owner of the hospital, didn’t like what was being said on the site, so it sued Pasquale and nine other anonymous bloggers for defamation and breach of contract, among other claims.

The corporation sent a subpoena to the owner of the blog, SuddenLink Communications, seeking Pasquale’s true identity.

Pasquale fears that revealing his identity will cost him his job in the health care industry and he has been fighting to quash the subpoena ever since. The case is pending.

“In a small town, and dealing with what once was the largest employer, one has to be careful,” Pasquale said.

Of course, not all anonymous speech serves the public interest. Web sites that allow people to spread gossip and rumors are also the target of suits. And in the courtrooms, bloggers on the gossip sites are less likely to be kept anonymous.

In a case that is pending in federal court in Connecticut, two Yale female law students in 2007 sued a group of John Doe defendants for posting sexual remarks, including comments that the women should be raped, on the Web site AutoAdmit — an online discussion forum for college students that describes itself as “the most prestigious college discussion board in the world.”

The plaintiffs have already obtained the identity of, and publicly outed, at least one of the John Doe posters through a subpoena.

A legal standard emerges

Bayard, at the Citizen Media Law Project, explained that the law has developed in a way that protects political speech more than the gossipy Web sites.

One of the first protective standards that emerged regarding anonymous online speech came in a 2001 New Jersey appellate court decision. In Dendrite v. Doe, the court established a five-factor test to apply when determining whether an anonymous blogger has to be identified. The test required that the plaintiff first alert the blogger about the subpoena, then establish, with evidence, that the claim was legally supportable and valid. The plaintiff had to state with specificity the alleged defamatory remarks.

Lastly, the court required that the First Amendment right to anonymous speech be balanced against the strength of the plaintiff’s case and the need of the plaintiff to seek a remedy.

In 2005, another court emphasized the value of the First Amendment in fleshing out the doctrine of anonymous speech on the Web. In Doe v. Cahill, the Delaware Supreme Court recognized that without a speech-protective standard, there is a fear that these lawsuits and subpoenas “will discourage debate on important issues of public concern,” by causing bloggers to self-censor out of fear that they will be outed.

There must be judicial safeguards to protect the identities of anonymous bloggers in those cases where frivolous lawsuits are filed, the court reasoned. Only lawsuits where the plaintiff can prove he has been aggrieved should be allowed to go forward. The court rejected the idea of “ask first, sue later,” and held that an anonymous blogger will only be revealed when the plaintiff can first set forth a valid legal claim.

According to Bayard, these standards have been applied more and more often in courts across the country. And because they favor speech, he said more bloggers are prevailing.

“There is a First Amendment right to anonymous speech,” Bayard said. “It’s not an absolute right. It has to be balanced against the entitlement of a plaintiff to recover for a legitimate legal claim. If the plaintiff has been injured, he or she has a right to pursue that claim.”

The AutoAdmit case is such an example, Bayard said. And while AutoAdmit may have less social value than the more civic sites mentioned above, MLRC’s Baron argued that courts must always be careful about unmasking anonymous speakers.

“There is too much at stake with respect to people being able to speak candidly, honestly and emotionally about matters of public concern,” she said. “Those of us who value First Amendment protections and freedoms, we have to appreciate that some of the sentiments that one sometimes hears in opposition to significant protection for anonymous speech comes from cases like [AutoAdmit]. It comes from a concern about anonymous speech being tolerated to too great a degree.”

Stretching the shield: bloggers as sources?

Newsrooms are getting caught up in lawsuits over anonymous speech as well — and lawyers are finding that a handy old tool can be used to solve the new problems.

Traditional state shield laws, which protect newspapers and reporters from revealing confidential sources and information, are being adapted to protect the identities of readers who comment anonymously on newspaper Web sites.

Many newspapers allow readers to comment anonymously on their sites. Because of the Communications Decency Act §230, a federal statute that immunizes Web site owners and publishers from lawsuits, in these cases it’s not the newspapers that actually get sued; the bloggers and commenters are the named defendants. The publishers are instead being slapped with subpoenas to reveal the bloggers’ e-mail addresses and identities.

Some media lawyers argue that newspapers must protect the confidentiality of their readers just as if they were news sources.

“There are similarities between old and new technology,” said Martha Sheehy, a Montana lawyer who successfully defended the Billings Gazette from having to give up the names of anonymous commenters. “If a person’s speech is anonymous in the printed newspaper, the statute protects it. This is anonymous speech in a different form.”

In the Billings case, a former candidate for public office sued his opponent for defamation. In the course of the lawsuit, plaintiff Russ Doty subpoenaed the Billings Gazette for the identities of two people who had commented anonymously on the paper’s Web site. Doty suspected that the anonymous comments might have come from his opponent, Brad Molnar. And even if they weren’t, he thought they could be helpful witnesses to prove the extent of his reputation damage.

Montana Judge Todd Baugh ruled from the bench in September that the state shield law protects the newspaper from having to reveal the identities of the anonymous commenters.

A similar decision was handed down a month later in Oregon. A person identified only by the pseudonym “Ronald” commented in January on a blog item of the Portland Mercury’s Blogtown that reported on a local mayoral candidate’s ability to get public financing. The commenter made negative remarks about the candidate’s alleged ties to a local businessman, Terry Beard.

Beard filed a defamation lawsuit against the anonymous commenter. He attempted to subpoena the newspaper for the identity of “Ronald.” Even though Beard was named in the blog, Beard decided to file the lawsuit under a pseudonym. The Portland Mercury’s attorney, Jessica Goldman, said Beard did so because he was worried about further harming his reputation.

In early October, the state court rendered a decision in favor of the Mercury.

“The Oregon Media Shield Law is broadly written and it is intended to protect a broad range of media activity, not simply news gathering,” Judge James Redman wrote in his decision.

Goldman said the decision laid the path for future protection for bloggers.

“A blog by a newspaper provides an opportunity for the public to sound off,” Goldman said. “In the case of the Portland Mercury, the blog was a comment to an article written by a reporter. That gives the member an opportunity to sound off about issues in newspaper. That’s the kind of speech that should be protected because without it you are going to scare people away from speaking.”

Changes not only in the law

Out of the courtroom and back at the keyboard, newspapers and bloggers are finding their own way to navigate the hazards of anonymous speech.

In Hawaii, The Maui News decided to stop allowing readers to comment anonymously on its site.

Publisher Joe Bradley said the decision was made because readers had abused the privilege. Legal issues played no role, he said.

“I was hoping that (the commenting system) would create spirited debate about the items in these stories,” Bradley said. “But it came down to people calling each other names. There was profanity, racism, questioning of public officials’ sexual orientation. I just did not want our name associated with that trash.”

Another Web site, JuicyCampus, reports to have found a different way to deal with trashy anonymous speech — encouragement.

From college campuses across the country, students post all sorts of gossip and rumors on JuicyCampus. The site invites people to gossip about anything on campus, from the sexual proclivity of their fellow students to who has the nicest car to the presidential election. Needless to say, the level of discourse, at times, would make even a staunch First Amendment advocate cringe.

But JuicyCampus has managed to stay out of the courtroom, and that’s because CEO Matt Ivester says he has set up the Web site so that even its operators have no idea who is posting. If they get subpoenaed, there would be no information to give up.

Everything is totally anonymous — there is no registration or login required.

“Anonymity allows students to discuss controversial topics and share unpopular opinions without fear of retribution,” Ivester said. “We think it allows a more honest dialogue, so we take our users’ anonymity very seriously.”

And as more and more lawsuits and subpoenas involve bloggers, groups like the non-profit Media Bloggers Association are trying to figure out a way to help. The membership organization recently developed blogger’s liability insurance, though whether bloggers will open their pocketbooks and purchase it is yet to be seen.

Robert Cox, president of the organization, said many of the blogging lawsuits he has seen are an attempt by plaintiffs to shut down Web sites, and most have nothing to do with the ability and professionalism of the blogger.

“The legal risk of being a blogger does not exist because they weren’t careful or because they were doing something wrong,” Cox said. “The legal risk is just being out there publishing. It is not that bloggers do anything bad, but quite often the cases are without merit.”

Looking Ahead

The issue of anonymous speech has been debated for centuries, but as more and more people make blogging a part of their daily lives, it’s sure to continue to be a hot topic.

The law will likely keep changing as it weaves its way through the Information Age.

“This is not a new concept,” MLRC’s Baron said. “The notion of anonymous speech predates the constitution. But it has become an issue that resonates with ordinary citizens in a way today that it would not have even 10 years ago.”

For many anonymous bloggers, like “Dirk Diggler,” the fight to remain anonymous is worth it. “I don’t think these suits will chill free speech,” Diggler said. “They will only encourage us to exercise our rights to speak out.”