The floodgates have been opened a long time ago. We’re all publishers now! The same could not be said ten years ago. Ten years ago, the opportunity to publish content wasn’t open to the masses. If you were frustrated with your cable provider or ex-girlfriend, where could you share your frustrations with the world…the local newspaper? Not hardly. Now, everyone has a megaphone and few people know how to use it. Call it the learning curve of a culture that’s adjusting to its new found freedom of expression. Ten years ago, trained publishers cranked out the content and those same people were educated on the boundaries of the First Amendment. Now, everybody can publish content. We all can market products, we all can give our perspectives, we all can vent our frustrations via twitter, blog posts, blog comments, status updates…you name it. But in the heat of the moment, few of us realize the damage we can bring upon ourselves…

There was an article in Mashable yesterday about Google being forced to disclose the identity of an anonymous blogger. The anonymous author said the following of the plaintiff, “She’s a psychotic, lying, whoring, still going to clubs at her age, skank.” Is it mere name calling or is it actionable libel? Tough to say. It reminds me of another case I’m familiar with where Amway sued 30 anonymous bloggers alleging an orchestrated effort to smear the company. Amway eventually dropped the lawsuit, but not until after thoroughly freaking out the online world.

I’ve written a summary below of some of the legal protections for anonymous bloggers. Instead of screaming “FIRST AMENDMENT, PUNK!” bloggers need to be students of the game and learn the boundaries.

Summary of the law

First, the First Amendment protects anonymous speech. See Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 200 (1999). The Supreme Court has noted that “Anonymity is a shield from the tyranny of the majority.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995). Indeed, “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent.”

Second, the protections of the First Amendment extend to the Internet. See Reno v. ACLU, 521 U.S. 844, 870 (1997). Courts also recognize that anonymity is a particularly important component of Internet speech. “Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas [;] … the constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded.” Doe v. 2 The Mart.com, Inc., 140 F.Supp.2d 1088, 1092, 1097 (W.D.Wash.2001).

Third, the right to speak anonymously is not absolute. “Certain classes of speech, including defamatory and libelous speech, are entitled to no constitutional protection.” Doe v. Cahill, 884 A.2d 451, 456 (Del.2005). “Those who suffer damages as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights.” In re Subpoena Duces Tecum to America On-Line, Inc., No. 40570, 2000 WL1210372, Jan. 31, 2000).

These principles make clear that there is nothing wrong with anonymous writing. It is, like other forms of publication, protected by the First Amendment. HOWEVER, the right is not absolute and must be weighed against the injured party’s need for identities to redress alleged wrongs. To ensure that the First Amendment rights of anonymous speakers are not lost unnecessarily, courts now require the injured party to demonstrate that they’ve got a legitimate claim before obtaining the speakers’ identities.

So what does all this mean?

Plaintiffs (the people that are injured by the statement) must plead enough facts to survive a motion to dismiss…In other words, plaintiffs must demonstrate that they have a legitimate claim by showing that the statements are presented as factual (not opinion), inaccurate, and damaging. If there’s a hint of legitimacy, the court will order the I.S.P. to disclose the identity of the bloggers.

If you’re a blogger, anonymous or not, the same standards apply to you as they apply to journalists at the Wall Street Journal. When your emotions get the best of you, it’s best to stay away from the computer for a while. Those words might come back to haunt you.

Tags: blogger liability, blogging, first amendment, first amendment law