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.
July 12, 2012 at 11:01 am
Posted in: First Amendment
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Responses (7)
Joe - July 12, 2012 at 11:28 am
The opinion includes an actual political cartoon. First time I saw that. As to the merits, the analysis provided here is appreciated & I seem to agree with it as a whole.
Anonymous - July 12, 2012 at 12:39 pm
I respectfully disagree that “blogs may overzealously remove comments that impart any risk of litigation…”
With very limited exceptions, websites are immune from liability. The Communications Decency Act provides, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
If blogs police user-generated content, it is not out of fear of liability, but perhaps to demonstrate their good faith effort to censor defamatory comment. This is admirable, but unnecessary.
I also find it interesting that you note how some believe that “anonymous comments are pesky, cowardly, and usually less worthwhile…” Let us reflect on the constitutional debates, where pseudonyms such as Federal Farmer, Publius, and A Landholder were instrumental in framing the issues and contributing to political discourse.
Erica Goldberg - July 12, 2012 at 1:03 pm
Thanks for your thoughts.
Although websites may be immune from liability, they do not want to deal with subpoenas forcing them to disclose all communications with particular anonymous commenters, as occurred in this case.
I agree with you wholeheartedly on the value of anonymous speech in political debates. I often wonder, however, how much anonymous speech serves the truth-seeking function.
Anonymous - July 12, 2012 at 2:16 pm
Thanks for responding Erica.
I was trying to make the point that I see no reason, economic or legal, for a website to police content that has already been published.
Take this case, for example. The newspaper removed the defamatory content hours after it was published. Not only was this legally unnecessary, but it was economically inefficient. The newspaper paid an employee to remove the content, and then incurred costs in dealing with the subpoena (and in attempting to quash the subpoena).
If a website wanted to avoid dealing with subpoenas, it would only make sense for the website to police content before it was uploaded. (Assuming this technology exists). However, this would have a chilling effect on speech since the website would be exercising editorial control over what comments were acceptable.
Given the importance of unrestricted speech, why not require the defamation plaintiff to compensate the website for all costs incurred in responding to the subpoena?
Ken Rhodes - July 12, 2012 at 2:49 pm
I am somewhat bemused by this issue. I try to be courteous in my correspondence, even when I disagree strongly with another correspondent. I try to attack ideas, not people. And I sign everything I write.
If I were inclined to behave differently, well … I would just use a plausible pseudonym. There’s no audit or verification of the name I fill into that box on the blog.
almostinnocentbystander - July 12, 2012 at 4:38 pm
“There’s no audit or verification of the name I fill into that box on the blog.”
Quite right, Ken. But how do we know “Ken Rhodes” is itself not an alias?
BTW, is that your true identity stuffed inside your wallet?
nidefatt - July 12, 2012 at 10:10 pm
http://www.volokh.com/2012/07/12/staggering-chutzpah-sanctions-upheld/
I think this article describes what’s going on here. Kootenai County is a small place with an extremely irritable population, where “Republican” has many meanings and each mini group hates the others with a passion for being false believers. This is likely an attempt to see if it’s a political enemy, and if so, to bring ruin to them. Not a particularly good use for the courts.
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