The Jennings blog has moved!
As of October 1, 2011 the Jennings Project blog has moved and joined forces with Constitution Daily, the Center’s daily digest of smart conversation on the Constitution. All new posts will be published there, so be sure to subscribe and follow Constitution Daily on Twitter. If you are interested in submitting a post to Constitution Daily, please email Stefan Frank at JenningsProject@constitutioncenter.org.
Monday, September 20, 2010
Featured Guest Blogger Sarah Hinchliff Pearson
The First Amendment right to speak anonymously is well-established, and, at various times throughout American history, it has protected some of the most important speech in our political discourse. But anonymous speech also has a dark underbelly, which has been transformed and cultivated by the Internet. Courts attempt to balance these conflicting dynamics on a case-by-case basis and, not surprisingly, the result is inconsistency and uncertainty.
The pros and cons of anonymity
We begin on the bright side. Starting with the writings of Publius – the Roman pseudonym used by James Madison, Alexander Hamilton and John Hay in The Federalist, the series of newspaper articles they published to encourage ratification of the Constitution – anonymous speech has a rich and important history in American society. The cloak of anonymity can protect people from retaliation for speaking out against injustice, or it can simply free people from social constraints, allowing them to be more open and honest. These goals are worthy of First Amendment protection, and the Supreme Court has recognized them as important constitutional values.
On the other hand, anonymity can breed antisocial and harmful behavior because it allows people to do or say things without social or professional repercussions. Without the threat of consequences, people may leak confidential information for insidious reasons or make defamatory comments about someone they dislike. Accordingly, not all anonymous speech has value, and much of it – such as libel and threats of violence – is unprotected by the First Amendment.
The role of the Internet
The Internet has given us a vast platform to exercise our right to speak anonymously. Previously, we had to either self-finance our anonymous publications by printing pamphlets or buying ad space, or we were subject to the discretion of an editor or producer. Now we simply log on to our own site or post a comment on a third party site, and we can instantly communicate to the world. Consequently, online anonymous posts are rarely vetted by third parties before publication, whereas the use of anonymous sources or pseudonymous writings in professional journalism are (ideally) the product of thoughtful decisions by editors. The lack of gatekeepers online heightens the risk of generating socially destructive anonymous speech.
For example, it is easier than ever to damage someone’s reputation by spreading lies online or by revealing truthful private details about his or her life. Information spreads rapidly online, and it can be difficult for readers to separate truth from fiction when it is delivered by an unknown source. As our online identities become increasingly important in our social and professional lives, the potential harm from online defamation and invasion of privacy poses a serious risk.
The ability to easily connect with like-minded strangers on the Internet is another important feature shaping anonymous online discourse because it enables mob-like behavior. Maryland Law Professor Danielle Citron has written extensively on what she calls “cyber civil rights” because online mobs often target women and other traditionally disadvantaged groups. In a 2009 Boston University Law Review article Citron says, “Online, bigots can aggregate their efforts even when they have insufficient numbers in any one location to form a conventional hate group. They can disaggregate their offline identifies from their online presence, escaping social opprobrium and legal liability for destructive acts.”
An example of this mob-like behavior online occurred in 2007 on a social networking site for law students called AutoAdmit.com. The online posters wrote under pseudonyms and began targeting two female law students at Yale. They posted hundreds of comments attacking these two women, including rape threats and accusations that the students had sexually-transmitted diseases and drug problems. The posters also coordinated a campaign to increase the visibility of their comments in Google search results, so that if potential employers or family members searched for information about the two law students, the disparaging comments would come up at the top of the results. The attack caused emotional and reputational harm for the victims and was ultimately settled in litigation.
Ironically, the incident also resulted in allegations of libel and slander against the two female law students and their attorneys. In 2008, one of the administrators of AutoAdmit.com who had been a defendant in the initial case filed his own lawsuit. He alleged libel, wrongful initiation of proceedings, false light, and other claims based on the harm to his own reputation that resulted from being associated with the incident. His claims against the law students and their attorneys were dismissed on jurisdictional grounds in 2009.
Of course, anonymity also plays a positive role online. One controversial example is Wikileaks.org, a site dedicated to publishing leaked information about government and corporate misconduct from undisclosed sources. While the site recently came under fire for its release of top secret documents on the war in Afghanistan in July, it routinely hosts anonymous speech with a significant political impact.
Anonymous online speech can also have purely personal value, such as with sites like Second Life, which create virtual worlds for people to take on new identities and live out fantasies. Anonymous online speech can increase the flow of information in the marketplace, as with product or restaurant critiques written by anonymous reviewers.
The legal landscape
As is the case with other prized constitutional rights, the right to speak anonymously is not absolute. Nor should it be. Libel is not protected speech, and a person who is defamed online has a right to learn the identity of the anonymous poster and seek recourse under the law. Yet if initiating a lawsuit automatically meant the online speaker’s identity was revealed, the right to anonymity would be virtually meaningless. Consequently, courts have struggled to strike the appropriate balance in these cases.
The typical scenario begins with some online speech that provokes an individual or company to file a defamation lawsuit. In most of these cases, the identity of the speaker is unknown, and the Internet service provider (ISP) is immune from liability. Therefore, the plaintiff files a subpoena with the ISP to obtain the identities of the relevant poster. If the ISP resists, which it often does, the court faces a decision – what must the plaintiff show in order to overcome the John Doe defendant’s First Amendment right to anonymity?
Not surprisingly, courts have not yet come to a consensus. However, most courts require the plaintiff to give notice to the John Doe by posting on the site where the alleged libel was posted or other means. If the John Doe gets the notice, he or she has the opportunity to file a motion to quash the subpoena. Courts also require the plaintiff to show that the suit is legitimate and viable. The standards for this showing vary considerably among jurisdictions. Some courts have required a mere showing of good faith, while others have required the plaintiff to come forward with evidence to prove there is genuine controversy. The most commonly accepted standard requires the plaintiff to establish a prima facie (literally, “on first examination,” but a term that in law means that the case is deemed strong enough to demand an answer) case of defamation and the court to balance the claim against the right to speak anonymously.
The various standards demonstrate an effort to balance the divergent interests involved, but the inconsistency leads to “forum shopping” by plaintiffs (filing a suit in a court where one is most likely to get a favorable result) and uncertainty for online speakers. As Florida Law Professor Lyrissa Barnett Lidsky wrote in the Boston College Law Review, “Though disheartening, the current state of the law may simply be a testament to the difficulty of balancing speech and reputation in the Internet age.”