When online anonymous speech turns ugly
By Kara Carnlet-Murrhee
What’s a girl to do when someone calls her nasty names?
If she’s Liskula Cohen — former Vogue fashion model and outraged subject of anonymous, defamatory Internet blogging — she calls her lawyer.
In 2008, Cohen discovered herself to be the butt of nasty postings on a Web site called, “Skanks of NYC,” in which she was frequently pictured with captions describing her as “skank,” “skanky,” “ho,” and “a psychotic lying whore.” Fed up with the abuse, Cohen sued Google Inc., the Internet Service Provider hosting the blog, to unmask her anonymous tormentor.
Last July, a New York Civil Supreme Court ordered Google to reveal the identity of the “Skanks of NYC” blog’s anonymous author, Rosemary Port. Now Port is firing back with a $15 million suit of her own against Google, claiming the company’s compliance with the court order violated her First Amendment right to speak anonymously. During a recent newspaper interview, Port’s attorney promised to take the suit all the way to the U.S. Supreme Court if necessary.
This is a case in point of how the Internet has facilitated an explosion of instant, worldwide online communications that, in many ways, has outpaced the agility of the courts to consistently apply the law to nuances in circumstances wrought by the technology. Recent court decisions to unmask anonymous Internet speakers accused of defamatory speech demonstrate this balancing act, as courts teeter between the rights of individuals to protect and repair their reputations and the First Amendment right of citizens to speak their minds anonymously.
“The problem is like a perfect storm in a way,” said Lyrissa Lidsky, a University of Florida professor of law, UF Research Foundation Professor and expert in mass media law, Internet defamation and anonymous speech. “There is a tremendous increase in the amount of speech on the Internet; there is also a tremendous increase in anonymous speech, which is both good and bad.”
“Anonymous speech allows people to be watchdogs, to be whistleblowers and allows people to get stories out that they otherwise would not feel safe in getting out,” Lidsky said. “On the other hand, anonymity also provides a cloak for some people who are on a campaign of character assassination.”
Another recent suit, filed in Jacksonville, Fla., demonstrates the legal battles that can ensue when anonymity is breached during a criminal investigation through police subpoena power.
In Rich v. Jacksonville, blogger Thomas Rich alleges his First Amendment rights to anonymous speech were violated by local authorities who revealed his identity after opening an investigation into his blog, “FBC Jax Watchdog.” Rich created the blog in 2007 and anonymously posted comments critical of Pastor Mac Brunson and other church leaders of mega-church Florida Baptist Church of Jacksonville. The comments questioned certain fundraising and church administration decisions and were spurred by what Rich believed was a “departure from longstanding church practice,” according to his complaint filed in the federal court for the Middle
District of Florida in May. According to Rich’s complaint, Officer Robert A. Hinson of the Jacksonville Sheriff’s Office, also a member of the church and of Brunson’s security detail, opened an investigation into the blog. In the investigation, the state’s attorney signed off on subpoenas compelling Google Inc. and Comcast to reveal Rich’s identity. Although the investigation was dropped after it found no criminal wrong-doing, Hinson revealed Rich’s identity to Brunson and the church, which resulted in a trespass warning being issued against Rich and his wife. After 20 years of membership, the couple and their three children were forced to find a new church home.
“Given the religious nature of the speech, privacy concerns and free speech issues raised by the blog and the investigation, a reasonable lawyer would have refused any subpoena with clear articulate facts supporting probable cause of criminal action,” according to Rich’s complaint. It also alleges the subpoena, as issued, violated long-standing federal privacy laws. The defendants contend, however, that they were acting within the scope of their “discretionary authority” as government offi cers when the investigation took place.
“I am interested in getting to the bottom of what happened when the church launched an investigation into the blog,” Rich said. “If they did anything wrong, let them be held accountable for it.”
Rich’s experience demonstrates some of the legal implications anonymous online speech has on individual privacy.
“Anonymity is a traditional free speech issue, yet it cuts both ways in terms of privacy,” said Jon Mills, a UF Levin College of Law professor, dean emeritus, director of the UF Center for Governmental Responsibility, and expert in privacy and First Amendment law.
“People want to be anonymous for privacy and free speech, yet anonymity can be very harmful to individuals because they can be defamed by unknown individuals more easily,” Mills said.
In addition, Lidsky points to the apparent ease with which a plaintiff can bring a defamation claim in anonymouscritic-of-public-figure scenarios as one of the main problems with Internet defamation law. This can have a chilling effect on free speech, she said.
“It is easy to sue for defamation any time you are criticized online,” Lidsky
said. “If all it takes to uncover an anonymous speaker’s identity is a defamation claim — if that’s all it takes — then defamation becomes a serious infringement on the right to speak anonymously.”
She acknowledged the potential of a defamation claim to rise to the level of
being a cyberSLAPP.
A “cyberSLAPP” is a “frivolous lawsuit” filed by the plaintiff to “issue a subpoena to the Web site or Internet Service Provider (ISP) involved, discover the identity of their anonymous critic, and intimidate or silence them,” according to cyberslapp.org, a Web site maintained by Public Citizen, a national not-for-profit consumer advocacy organization.
The name comes from the more well-known SLAPP acronym, which stands for Strategic Lawsuits Against Public Participation. These suits can be brought by public figures and corporations “against regular individuals who oppose them in some way,” according to Public Citizen.
“You have plaintiffs out there who are bringing defamation claims strategically to silence their critics,” Lidsky said. “And this is a problem because, often, if you know your identity is going to be revealed, you are going to shut up. And that’s inimical to First Amendment values.”
The involvement of the Internet also poses challenges in satisfying the elements of a tort of defamation claim. When public figures sue for defamation, they must prove actual malice, whether the defamation appeared online or offline, said Lidsky. However, actual malice can’t be proved without knowledge of the identity of the defendant, because it depends on the defendant’s knowledge or reckless disregard of falsity in publishing the allegedly defamatory statement.
Liability issues also surface when anonymous Internet critics post comments using an Internet Service Provider and then are revealed by the ISP after the plaintiff files a subpoena requesting the anonymous poster’s identifying information. For instance, in both the Cohen and FBC Jax Watchdog cases, the defendants have now filed suits against the ISPs, alleging that their rights to anonymous speech were violated when the ISP complied with the subpoena and handed over the anonymous critic’s identifying information.
“Given that anonymity has plusses and minuses and is protected by the First Amendment,” Lidsky said, “how do you balance the right of a person who claims her reputation has been injured by something that has been said about her online with the right of speakers to voice their opinions anonymously?”
For the most part, the courts have tried to balance the right of an individual to speak anonymously with the right of a plaintiff — whether a public or private figure, or corporation — to repair the injury suffered to his reputation. With relatively little court precedent, however, the courts are striking this balance in different ways.
Charles D. Tobin (JD 89), a partner in Holland & Knight, based in Washington, D.C., is confident the courts will continue to protect the interests of the tort plaintiffs while ensuring that free speech is not “stifled in the process.”
As a former journalist and attorney specializing in representing clients in libel and privacy lawsuits, Tobin said that there are certain types of anonymous speech that must be protected and the need for the law to allow for the continued proliferation of the Internet as a primary means of communication.
“The courts are appropriately recognizing the importance of preserving the First Amendment rights of critics and whistleblowers to remain anonymous on the Internet,” Tobin said. “It is critical that judges continue to allow the Internet to flourish by providing the legal protections that, history has shown, are
always vital to a healthy American democracy.”
As the courts continue to struggle with balancing these competing interests, Lidsky offers this advice: “Once a defamation suit is fi led, courts need to scrutinize the action to make sure that it is valid defamation claim — they should make sure it’s not a cyberSLAPP case designed to chill anonymous speech.”
She noted the challenge facing the courts in devising a more standardized approach.
“It’s a delicate balance; it’s very difficult. But otherwise defamation is too easy a tool to use to chill speech,” she said. Although the courts in the Cohen case and other cases have chosen not to protect the anonymous speakers’ identities, the decisions in no way represent a settled area of the law, Mills said.
“The courts are confused and the outcomes are unpredictable,” he said. “It’s going to be a continuing factual challenge. I think that we are going to have to wait for the courts to sort it out because putting a precise definition on it is difficult and would be controversial one way or the other.”
“We want to protect anonymity, but we don’t want people to defame,” Mills said, “so we have to let it evolve.”