The New York Law Journal reports (subscription required; link to blog added):
A former Lawrence school board member’s request for disclosure of the names of anonymous Internet critics has been rebuffed by a state judge, who ruled that the comments were protected speech.
In a proceeding for pre-action discovery, Manhattan Supreme Court Justice Marcy S. Friedman found that Google, the Internet service provider hosting the blog “Orthomom,” did not have to disclose the identities of blogger Orthomom or of the anonymous users who posted allegedly defamatory comments on the site about Pamela Greenbaum.
“The Lawrence school district has been the arena for a highly charged dispute between the public school minority, which Greenbaum represents, and the private school majority, over the extent to which the Lawrence public schools should serve the Orthodox Jewish community,” wrote Justice Friedman in Greenbaum v. Google, Inc., 102063/07. “The relief sought by Greenbaum, on the eve of a school board election, would have a chilling effect on protected political speech.”
The decision is here. LIKELIHOOD OF CONFUSION® has said this before: The pendulum has swung too far in favor of Internet anonymity and has virtually made libel, if it is done online, a non-existent tort. On the other hand, when the comments and statements in question are themselves not actionable — here they seem to be mere opinion, which can never be the basis for a defamation action — it appears that anonymity should be protected.
That doesn’t mean there is no societal cost to enabling non-actionable slander. An opinion can be harmful, and there is no inherent reason why the victim of slanderous opinions should not know who is uttering them. Short of fear of the Klan or the local drug kingpin, most anonymous commentary is simply a matter of moral cowardice. But it is well established that defamation suits have a way of chilling even meritorious free speech. Until we find a way to make people accountable for what they say that does not hinge on legal sanctions, this unfortunate form of asymmetrical assault will remain with us.
“most anonymous commentary is simply a matter of moral cowardice”? Ron, for the love of Thor. But for anonymous commentary, I doubt we would have broken free of the British Empire. We’d all… well, we’d all be speaking ENGLISH right now!
Anonymous speech is vital to a free society, and is often the lifeblood of core political speech. The First Amendment protects an individual’s right to speak anonymously. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.â€).
Why do you think that is?
Consider the fact that without anonymous speech, there would likely be no United States of America. Neither Alexander Hamilton nor Benjamin Franklin affixed their names to their missives that fed the fires of the Revolution. If they had, they likely would have perished in the hangman’s noose, or in King George’s dungeons. The Federalists and Anti-Federalists alike were forthcoming in their political debates because they were shielded by their pseudonymity.
Today, political dissidents, corporate whistle-blowers, and other guardians of liberty are shielded by their anonymous nature. Without the ability to speak anonymously, the marketplace of ideas would feel a chilling wind blow through it, and more than a few members would close up shop.
Yes, sometimes bigots, defamers, and just plan jerks hide behind the shield of anonymity. But, I’m not going to throw the baby out with the bath water.
Unfortunately, you’re not the only one who is a little bit myopic when it comes to anonymous speech. See Calling for Harm to the First Amendment.
Great comment, Marc. I answer here.