About three hours ago, the Indiana Court of Appeals issued its decision in a case with implications for online free speech. The decision [pdf file] reversed a lower court ruling that required the Indianapolis Star newspaper to reveal the identity of a person who made allegedly defamatory comments about an individual.
After the individual filed suit, he sought an order to compel the Star to turn over information regarding the anonymous commenter. The Star appeared to argue that Indiana’s news gathering shield law protected the Star. The trial court disagreed and entered the order sought by the plaintiff in the case. The Star appealed late last year.
A couple of years ago I handled a case involving a similar issue after a referral from the Electronic Frontier Foundation. I became quite familiar with the applicable legal standards, and I was therefore somewhat distressed that the Star did not assert the arguments that should have prevailed. Whether the Star made those arguments on appeal I do not know, but two separate friend-of-the-court briefs apparently did.
A short explanation of the legal standard adopted by most courts is this. The First Amendment has a long history of protecting anonymous speech. For a variety of reasons, a person might wish to exercise free speech rights anonymously. The First Amendment’s free speech rights are not absolute, of course. Speech that crosses the line into defamation can expose the speaker to liability notwithstanding free speech rights.
With the proliferation of online discussion forums of one kind or another, many people participate using a pseudonym. Given that some other people online cannot resist the urge to harass people they disagree with and turn into monsters. (See this profane but entirely accurate explanation of the phenomenon.) Some of those monsters begin harassing the person offline, taking advantage of knowing the person’s identity. It’s not hard to understand the attraction of commenting anonymously.
When a person claims that an anonymous speaker has defamed her and wants to find out that person’s name so he can be made a defendant in a lawsuit, the courts require a balancing between the First Amendment rights of the speaker and the right to redress of the defamed person. Generally, the courts require that before the anonymous speaker can be unmasked, the plaintiff must make a showing that she can prove a prima facie case for defamation. Merely filing a complaint will not suffice, and some have observed that the plaintiff seeking to unmask an anonymous critic should basically have to show she could survive a motion for summary judgment. There are other parts of the test used by the courts, and you can read the seminal opinion, Dendrite International v. Doe.
I am still digesting the Court of Appeals ruling from this morning, but suffice it to say I am pleased the court recognized the First Amendment interests at issue in the case.