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Maryland Protects Anonymous Posts On Comment Boards

According to somebody out there in computerland, the Dunkin' Donuts in Centreville, Md., is one of "the most dirty and unsanitary-looking food-service places I have seen."

Maybe it's filthy and maybe it's not, but should the owner of the shop have the right to find out who's out there slamming his business on anonymous Internet comment boards? And if the shop is actually clean and lovely, and the disgruntled customer is actually just out to destroy the business and slander its owner, then does it make sense that an anonymous poster such as "Rockyraccoonmd" has more legal protection than he would if he had attached his name to his comment?

Maryland's highest court Friday decided that anonymous comments on web message boards like the ones at the bottom of this post have and deserve extraordinary protection, and that someone who wants to sue you for slandering someone anonymously essentially must step into the mosh pit of the comment boards and try to persuade you to come forward, because the courts are not going to tell The Washington Post or any other comment-board operator to give up your true identity.

That's great news for folks who get their jollies venting on comment boards, and it's a nice protection for those who have serious information to put out there but who fear that they'll face retaliation if they step forward with their names attached to their message.

But is it fair to those who might be maligned or libeled? Not long ago here on the big blog, we debated what ought be done about juicycampus.com, the scurrilous web site that made its reputation by opening its comment boards to highly personal slams by college students against their fellow students--slams that got down and dirty about people's purported sexual misbehaviors, and very much naming names. Protected by various court decisions, the site went on its merry way despite howls of outrage from college administrators and some students.In that case, the marketplace spoke, and the business recently went under.

Is the marketplace of ideas and comments protection enough?

Some judges think not. In an opinion that concurs in part and dissents in part in the case of Newszap.com, the web site where the Dunkin' Donuts comment appeared, Judge Sally Adkins and two other judges argue that the court is now creating a "superlaw of Internet defamation that can trump the well-established defamation law."

Adkins worries that the free-for-all atmosphere encouraged by anonymous comments actually encourages more harmful speech than any other medium in history.

"The fact that many Internet speakers employ online pseudonyms tends to heighten this sense that 'anything goes,'" he writes. "This "anything goes" mind set, coupled with the virtually unlimited circulation available to bloggers at minimal cost, heightens the danger of injury to the subject of the communication from false or exaggerated statements. I would venture to guess that on the Internet, defamation occurs more frequently and is broadcast to more people than via any other medium, past or present. With this in mind, I am reluctant to set additional barriers to a person seeking to assert a legitimate cause of action to remedy the damage inflicted by a defamatory Internet communication."

Look at the case from the perspective of Zebulon Brodie, the owner of the donut shop. Someone has ripped his shop. (They also ripped him for being a real estate developer whose work they didn't approve of. One commenter said Brodie should be sentenced to "A really hot circle of Hell, where they do nasty things to you with nail guns and hot asphalt.")

Now, Brodie doesn't know who his accuser is--a disgruntled employee, a legitimate customer, his mother-in-law? Shouldn't he have the right to confront his accuser? If his store were squeaky clean and the comment had been made in a forum where the accuser was named, then Brodie could have sued for slander. Why should he be denied that right simply because the technology allows the accuser to hide behind a screen name?

The majority opinion in the case, by Judge Lynne Battaglia, argues that Brodie must first show that he truly has been defamed before any move can be made to unmask the anonymous commenter. The court sets a high hurdle for interfering in the anonymity of web commenting--an aggrieved party must first go on the message board to let the anonymous commenter know that the slamee is ticked off and seeks justice. Then the aggrieved person must persuade the court that he truly has been hurt by the comment. Only then does the court weigh the claim of defamation against the commenter's First Amendment right to speak his mind, even anonymously.

If that seems like a very tough hurdle for the person who seeks to sue his accuser, it is and it should be. Our system of protecting free speech depends on the notion that a wide-open marketplace of ideas will generate its own self-correcting mechanisms. As in the juicycampus.com case, even if the courts stand back and let people be slurred in the most vicious ways, others will step forward and either shame the perpetrators into slinking away, or people will collectively decide to ignore or shun the violator (as happened to juicycampus), or victims and others will fight back with words of their own, defending those who are innocent and shining light on those who toss around slanderous words. That system is surely imperfect, but it's done well for hundreds of years and we're all still shouting at each other, with pretty good results. (The Post's Henri Cauvin has a good summary of the legal arguments in this case here.)

Protecting anonymous speech is one of American law's most noble ventures. As Supreme Court Justice John Paul Stevens once wrote for the court,

"Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Great works of literature have frequently been produced by authors writing under assumed names. Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry."

Still, there's something about anonymous slurs online that seems different, unfair. If one of my neighbors scrawls a sign accusing me of being America's biggest heroin dealer and posts it in front of my house, the damage is comprehensible, limited, manageable. Even if he remains anonymous, the universe of affected people is a knowable fact and I can take steps to defend myself. But if the same person posts that accusation on the Web, I'm in a different and much more difficult spot. The Web's remarkable reach does put an extra burden on those who believe they have been slandered.

But as painful as it may be to be on the receiving end of such abuse, the fact remains that the basic ideas and ideals behind our system of protections are the same whether the forum is a sign on the lawn, a shout in a public square, or a post on a web comment board. The protection of our rights to speak out against our rulers and anyone else is paramount.

As Judge Battaglia writes, anything less "would inhibit the use of the Internet as a marketplace of ideas, where boundaries for participation in public discourse melt away...."

In the end, the court is right to conclude that a "sue first, ask questions later" approach is at odds with our system of free speech. Making an aggrieved party essentially prove to a court first that he has been defamed and damaged by an anonymous comment--before any attempt to unmask the maker of that comment--is a good way to protect the speech rights of those who have something to say. A person who has been slandered can go through all the steps the court lays out and still charge ahead with his case if there really is a case.

By Marc Fisher |  March 2, 2009; 8:40 AM ET
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Comments

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Well, here's the thing: A comment is an opinion. Writing an opinion, however wrong it may be, is not libel. Libel involves the intentional attempt to defame. The example of a sign on a front lawn saying someone is a drug dealer may be libel. But if the person who put the sign there had some idea that drugs were dealt there, then its an opinion. Its all about the intent.

And lets not forget the other side of this coin. I once was reading a blog-war between someone who claimed vaccines caused autism and many people who were refuting the evidence/claims. As the person who was saying vaccines caused autism was loosing the debate, this person wrote that they intended to sue everyone who was challenged them for libel, shutting off any further comments by those refuting the autism-vaccine link. Now, if this debate had been happening in person, I doubt anyone would have said they would sue another for slander for having a healthy debate. Anonymous bloggers are not corporate lawyers (usually) and have little understanding of their rights in this new world of the internet. Knowing that anonymous really means anonymous is a good thing. And those who feel attacked need to understand that a comment is an opinion, no matter how wrong it may be.

Had this judge allowed blog hosts to provide anonymous identities, those who want to impose their views through threats of libel would win big, making the internet blog about as useful as the editorial page of a newspaper. It also would clog the courts with bogus claims of libel for people simply having a difference of opinion.

Posted by: bevjims1 | March 2, 2009 11:46 AM

I've been sued for defamation. It's way, way too easy in our legal system to file a completely meritless lawsuit and make someone's life miserable, and the consequences for doing so are essentially zero.

This case should have been dismissed at the first hearing because the plaintiff did not state a valid cause of action. "Dirty and unsanitary-looking" is obviously a subjective term and obviously an opinion, and opinions are protected speech. It just shows how a plaintiff can use the legal system to bully people who disagree with him into submission through the threat of expensive litigation.

Posted by: washpost4 | March 2, 2009 12:01 PM

What a sorry set of choices you give in your poll I can't vote because I don't accept the reasons to which you make me subscribe in order to vote yes or no.

I would vote yes, maybe -- the court should protect anonymity so long as the plaintiff can't show wrongdoing in the form of (1) a false statement (2) of fact that (3) actually and provably caused harm to reputation. In other words, I think the court in Brodie was basically right.

In some ways, I agree with each of the first three rationales you give. The one with which I DON'T agree is "web site operators should be responsible for all comments left on their message boards". If that is the law, then web operators will not be able to HAVE message boards, because under that rule they will have to pay lawyers to scrutinize each and every statement and hold it for moderation until the lawyers sign off, just as they would on a libel review for a news article. The result will be no public discussion.

Even though I can't honestly vote for the reasons stated, I would like to know how the poll came out

Posted by: fentysupporter | March 3, 2009 11:49 AM

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