Court Rules in Favor of Anonymous Blogger

joel_archer writes "The Delaware Supreme Court on Wednesday reversed a lower court decision requiring an Internet service provider to disclose the identity of an anonymous blogger who targeted a local elected official. Judge Steele described the Internet as a 'unique democratizing medium unlike anything that has come before,' and said anonymous speech in blogs and chat rooms in some instances can become the modern equivalent of political pamphleteering. 'We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously,' Steele wrote."

Huzzah!!

[dustinbarbour]

It pleases me to know that there are judges out there in tune with the Internet, who know what it is, what it represents, and recognize it for the "unique democratizing medium" that it is. These days seem rampant with politicians, judges, and CEOs all interpreting in favor of the bigger guys. The recent rulings against the RIAA and cases such as this one begin to restore my faith in the American judicial system. We've still got a way to go and the system will never be perfect, but at least there is a glimmer.

Overreaction in the first place

[mrpostal]

In a series of obscenity-laced tirades, the bloggers, among other things, pointed to Cahill's "obvious mental deterioration," and made several sexual references about him and his wife, including using the name "Gahill" to suggest that Cahill, who has publicly feuded with Smyrna Mayor Mark Schaeffer, is homosexual.

Article above In two messages from September of 2004, Proud Citizen discussed a member of the Smyrna Town Council, Patrick Cahill, referring to Cahill's "character flaws," "mental deterioration," and "failed leadership," and stated that "Gahill [sic] is...paranoid."

EFF Article [eff.org]

One article makes it sound like its teenagers calling each other fags, and the other points to actual political opinions.

Either way, this is how NOT to react. Don't these people know how to take anything lightly?

Re:Sad

[cybergrunt69]

Actually, in today's society, it is a fairly uncommon thing for a (supposed) non geek to apply common sense in an internet/computer related case...

Re:Sad

[shbazjinkens]

Slander is considered an abuse of free speech and will get you in trouble whether political or personal. The case wasn't whether the blogger had a right to free speech, but to anonymity. We aren't constitutionally guaranteed anonymity, as we're expected to take responsibility for what we say. This is news because typically people are held responsible for slander and the consequences can be costly.

I'm glad anonymity won, but I don't know if I'd feel the same way if some anonymous ass was slandering me on a popular website and people were believing it. It's a career killer for professional politicians, especially on the local level.

Re:The judge was wrong and so are you.

[Hope Thelps]

The judge was wrong

Judges, not judge. Judges of the State Supreme Court.

Okay, so you're saying that the Supreme Court of Delaware was wrong on a point of law with regard to the State of Delaware. Are you going to cite any precedents at all to support that or are you just claiming to out-expert them?

Re:Sad

[Orgazmus]

Can you really call it "common" sense anymore?

Re:Sad

[larry bagina]

where in the constitution does it guarantee anonymous speech?

Wrong question. The Constitution enumerates the powers that the gov't has; it is not a list of restrictions. The correct question is, "where in the Constitution is Congress granted the authority to regulate speech?".

Re:Sad

[wcbarksdale]

The Supreme Court has held that non-defamatory anonymous speech is constitutionally protected (see McIntyre v. Ohio Elections Commission). In the article, the court ruled that the statements made by the bloggers were clearly opinions, which can't ever be defamatory.

Re:Sad

[kfg]

We aren't constitutionally guaranteed anonymity, as we're expected to take responsibility for what we say.

I have every right to publish a pamphlet or newspaper article and not put my real name to it, and distribute at will.

In fact, that's exactly what the authors of The Federalist Papers did. That is, in fact, why they are refered to as The Federalist Papers.

I may not have a Constitutional protection of anonimty, but I have every Constitutional right to publish anonymously.

You do not have a Constitutional right to the identity of an author, and hence the protection of anonymity comes about left handedly. This is by design, just as the Fourth Ammendment exists because it was recongnized that the governement would, sooner or later, pass illegal and offensive laws, but would be prevented the legal means of enforcing them.

The very reason the government has tried so hard, and so successfully, to nullify it.

Now they're moving on to nullifying the first.

KFG

Glad I don't live in Delaware

[panurge]

IANAL, but surely the First Amendment protects freedom of speech but not anonymity? First Amendment protection in effect should enable me not to need anonymity in speaking truth to power because my right to do so is protected. The laws of slander and libel can only work if the person slandering or libelling is identifiable.

If a reporter in a newspaper quotes an anonymous source and thereby commits libel, the newspaper can be sued. It seems to me the ISP is on a hiding to nothing here. If journalistic standards are applied, the owner of the website is surely a publisher not a carrier, and can be sued. If the website is the equivalent of a freely available notice board, then anybody pasting a libel on it should not expect to avoid being identified.

The initial posts seem to support the position of "Proud Citizen", but he appears to be a socially dysfunctional individual with a nasty mind. I do not see why he deserves any anonymity at all. If only so the Cahills can assert THEIR first amendment rights and say in public what they think of them.

The point is that in the US freedom of speech is protected and anonymity is not needed, whereas in China (why on Earth do we have anything to do with that scumbag government?) freedom of speech is banned and so everything should be done to protect the anonymity of legitimate critics of government.

Re:Right to post anonymously?

[QuantumG]

The courts aint going to protect you from getting "wacked" by a crooked public official.

Re:Sad

[Pieroxy]

What is needed is a much better system than that. People will eventually become aware that blindly trusting anything anonymous is just plain stupid. This is a question of educating the population, and that usually takes a few generations. Patience will pay, I believe.

Re:Sad

[Hosiah]

I don't know if I'd feel the same way if some anonymous ass was slandering me on a popular website and people were believing it. It's a career killer for professional politicians,

But the nut of the matter is: Politicians have power. So, the powerless have a right to openly criticize them. The powerfull have the right to live and conduct themselves in such an honerable way that nobody would believe their critics. Otherwise, every time Jay Leno or David Letterman makes a wisecrack about the Chief, they'd be liable. But a person in power affects all of our lives, so we have to be able to discuss it openly amongst ourselves.

Re:Glad I don't live in Delaware

[Anonymous Coward]

But someone with more money can bankrupt you and destroy your life by putting you in a civil court case. An ordinary joe cannot bankrupt an important person, even if the accusation is right.

Go to the newspapers

[panurge]

If the "ordinary joe" has an important piece of information that would discredit a public person, (s)he should go to the respectable Press who will investigate and publish if they and their lawyers think it justified. That's what they are for and why they have special rights. (And why it is wrong that Murdoch should be allowed to control so much of world media, but that's another issue.)

Re:Go to the newspapers

[grahamm]

Why should the 'respectable' press have more rights than any other publisher? I may be totally wrong, but I suspect that the "press" whose freedom was enshrined in the first amendment bears little resemblance to the current media conglomerates who publish most of the newspaper, own TV stations etc. I would suggest that the modern day blog, and sites such as Slashdot are much closer to the 'press' at the time when the amendment was written than are the modern day newspapers and TV news stations.

Actually, you are wrong.

[brunes69]

Slander \Slan"der\, v. t. [imp. & p. p. {Slandered}; p. pr. & vb. n. {Slandering}.] 1. To defame; to injure by maliciously uttering a false report; to tarnish or impair the reputation of by false tales maliciously told or propagated; to calumniate.

The actual comments were...

"character flaws," "mental deterioration," and "failed leadership," and stated that "Gahill [sic] is...paranoid."

The comments he used are so vague, no lawyer would ever take this to court, because they would surely lose against any halfway-competant defence. Everyone has character flaws. Everyone over 30 could easily be shown to have some measure of "mental deterioration", all they would have to do is ask them some trivial fact about last year that they would not remember. As for "failed leadership", that is also open to interpertation.

In order to make a case for slander, the comments have top be false. There is absolutely no way you could prove or disprove that with these comments.

Re:Sad

[prefect42]

"Le sens commun n'est pas si commun." so said Voltaire

Re:Sad

[indifferent children]

But this is a different kind of anonymity. This blogger wasn't anonymous like an AC, he was anonymous like Pieroxy. He had published his blog consistently under one name at one address (ok, so I am assuming this), and his track record of writings was available for review, just like a non-AC /. user. The only reason that we consider him anonymous, is because we don't have his meat-space name, and couldn't find him in the big blue room.

Re:what right?

[rgoldste]

You have to stop construing the First Amendment as granting you rights. That kind of thinking almost led to the rejection of the Bill of Rights in the first place. James Madison once said [findlaw.com]: ''It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against."

That guard is the Ninth Amendment. The correct interpretation of the Constitution, then, is that you have boatloads of natural rights, and the Constitution protects them all; certain rights explicitly protected just have greater weight when rights conflict. When a court recognizes a right, they're not being "judicial activists" at all, they're keeping well within the intent of the Framers.

Re:The judge was wrong and so are you.

[Hope Thelps]

You know there is a difference between "lawful" and "right", "unlawful" and "wrong" don't you? The judgeS were wrong.

The judges either applied the law correctly or else they did not. It is possible that the law could do with being amended but that does not mean that a judge correctly applying the law as it stands is "wrong". That's just gibberish.

Re:Right to post anonymously?

[BVis]

If the blogger is concerned about reprisals or being sued for defamation then I can't see how that's a defence. If they should be allowed to say whatever it is then the law should protect them and defamation suits shouldn't be possible.

And in theory communism works, too. The real world works differently. Those with the resources to hire dozens of high-priced lawyers to file lawsuits can crush those who do not have those resources into settling an obviously meritless case (the most relevant current example being Stupid RIAA Tricks).

There's also the "no man is an island" factor. Say enough unpopular things and you'll soon find yourself unpopular; while in high school all that got you was a wedgie, in the real world it will keep you from earning a living. Speaking your mind may be your right, but take into account that companies don't like to hire/do business with people who are controversial, no matter what particular politics or topics are involved; it's bad for business. Plus most employers have the attitude that they own your opinions 24/7 because they pay you a salary; say disparaging things about the people who sign your checks (regardless of whether they're based in provable fact or are only opinion and represented as such) and you'll soon stop collecting them. IMHO not fair, or right, but that's how it is.

That is a false analogy

[brokeninside]

And its shifting the goal posts as well. Even if the law is morally wrong, it does not necessarily follow that a judge upholding that law is morally wrong in doing so. One could, quite sensibly, argue that in most cases it is morally wrong for judges not to uphold laws that they think are immoral as judges are charged with upholding the law, not with judging morals.

Re:The judge was wrong and so are you.

[Anonymous Coward]

and be that as it may, it isn't the judge's job to assert his/her moral authority and legislate from the bench. Their job is to interpet the law as is.
And the supreme court here, interpreted it as a protector of anonymity.
if the law is judged to be morally abhorent by the public in large, then congress is the institution we should be declaring as being in the right or the wrong, and as such should force them to change the law. Not the bench.

Re:Right to post anonymously?

[amliebsch]

But that aside: if you've got something to say have the guts to put your name to it.

Right, because only [wikipedia.org] cowards [wikipedia.org] publish [wikipedia.org] anonymously [wikipedia.org].

Re:what right?

[argStyopa]

The US Constitution doesn't list the RIGHTS people have.
The US Constitution limits the powers of government to circumscribe the rights inherent to its citizens.

We've been so deeply brainwashed by the "Hollywood" (i.e. shallow) presentation of the Constitution that every time a question like this comes up, we LOOK for the "Right" to be listed in the document, and if it's not there, we must not have it.

We have it UNLESS:
a) our state constitution specifically allow the government to have a say in it, and
b) that state provision doesn't exceed the powers allowed to the states according to the US Constitution.

Replying to myself- McLibel Two on the record

[panurge]

Clearly some people very much dislike my posts on this. I wonder why? The reference to China or the opposition to the right of ACs to libel and slander anonymously?

To make you waste some more mod points, let me point out today that in the Guardian today is an article by Helen Steel and Dave Morris (The McLibel Two.) They stood up, on the record, for their beliefs. McDonalds had the most pyrrhic victory imaginable, and European courts decided that the trial was unfair because of the failure of the UK government to enable Steel and Morris to be adequately represented. The UK has much poorer protection of freedom of speech than the US, but the EU seems to have some judges with a clue or two.

Steel and Morris are heroes of dissent. And Proud Citizen has nothing to be proud of.

Get a clue.

[nonlnear]

This has nothing to do with internet governance.

That should be obvious from the fact that all this happened under the jurisdiction of the state of Delaware - it's not even a federal issue.

Re:Right to post anonymously?

[ArsonSmith]

All well and good unless you're a Jew in Nazi Germany. The ability to speak anonymously can be usefull.

Re:Right to post anonymously?

[Erixxxxx]

But that aside: if you've got something to say have the guts to put your name to it.

So your name is really CountBass? Did your parents have sense of humor?

Re:Right to post anonymously?

[jxs2151]

if you've got something to say have the guts to put your name to it. If you're not then perhaps you shouldn't be saying it?

A few influential people may disagree with your assertion.

"The Federalist Papers were a series of articles written under the pen name of Publius by Alexander Hamilton, James Madison, and John Jay. "

http://www.law.ou.edu/hist/federalist/ [ou.edu]

Re:what right?

[PMuse]

One can argue for a right to anonymous speech as an unenumerated right guaranteed by Amendment IX, but this is a weak basis.

Instead, one should base an argument for a right to anonymous speech based on Amendment I. The first amendment doesn't say that free speech is only guaranteed where the speaker is known. It says that free speech is guaranteed. For a bunch of historical, logical, and policy reasons that other courts have described at great length, it turns out that that means both anonymous speech and non-anonymous speech.

The argument that the first amendment doesn't mention anonymity and must not therefore protect anonymous speech is based on a method of dividing speech in half and then declaring arbitrarily that only one half or the other is protected. The anonymous/known division is no more sensible that public/private, child/parent, man/woman, oral/written, or verbal/gesture.

Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.