Newspaper Must Unmask Anonymous Commenter
posted by Erica Goldberg
An Idaho judge ruled on Tuesday that a Washington newspaper, The Spokesman-Review, must reveal identifying information about an anonymous commenter. The commenter, ironically named “almostinnocentbystander,” remarked in two comments on the newspaper’s blog that Tina Jacobson, the chairwoman of the Kootenai County Republican Party, may be embezzling funds from the Party. Specifically, the comment claimed “Is that the missing $10,000 from Kootenai County Central Committee funds actually stuffed inside Tina’s blouse??? Let’s not try to find out.” Another comment, according to the judge’s written opinion, used the words embezzlement, mentioned Jacobson’s position as bookkeeper, and accused Jacobson of refusing to allow others to review treasurer’s reports. The comments were removed from the blog after 2.5 hours, but Jacobson sued for defamation. In denying the newspaper’s motion to quash the subpoena, the judge also ruled that two other commenters’ identities need not be revealed because their posts were not defamatory.
I have been watching episodes of Ally McBeal on Netflix, and, as John Cage says, “I am troubled.” Perhaps innocentbystander’s comments technically meet the standard for defamation in Idaho (Communicating information to others, that tends to harm plaintiff’s reputation, causing damages to plaintiff.) But was that comment really damaging enough to unmask almostinnocentbystander? The primary harm to Jacobson’s reputation that allowed this suit to proceed was that Jacobson herself ordered an audit of GOP books.
I am not suggesting that individuals can insulate themselves from libel lawsuits by hiding behind pseudonyms, or even that this particular case was incorrectly decided. But perhaps there should be a higher standard for the point at which anonymous Internet speech becomes actionable defamation, requiring the revelation of the speaker’s identity. When a speaker has not identified herself, the statement’s credibility is called into question, and most readers would consider the comment the way anonymous comments on youtube are viewed- as angry rants with little factual basis. The First Amendment provides protection in defamation suits brought by public figures for statements that cannot reasonably be interpreted as stating actual facts. It appears that almostinnocentbystander was questioning whether Jacobson stole the money rather than asserting any knowledge that she did.
On the other hand, if we raise the standard for actionable defamation for anonymous Internet speech, the medium becomes even less credible. Readers may be inundated with comments that they cannot believe, and it will be impossible to discern the parody from the dishonesty from the truth. The value of anonymous Internet comments will further decline, except for those stating pure opinions. This may already be the case, however, and perhaps it should be.
Although many bloggers believe that anonymous comments are pesky, cowardly, and usually less worthwhile, anonymity also emboldens commenters with sophisticated but impolitic views to speak out. What I find truly troubling is the fact that, as a result of cases like these, blogs may overzealously remove comments that impart any risk of litigation, and the speech of those who wish to anonymously comment in ways that are not defamatory may also be chilled. If we truly believe in the adversarial process to expose the truth, we must let trolls comment. In actuality, almostinnocentbystander ended up recanting his/her comments, so the blog’s discussion forum functioned properly. The Internet is the most democratic medium for speech, and anonymous comments display the opinions of our compatriots in all their fervor, ugliness, humor, and sometimes insight.