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Unprotected Speech in Blogland

Co-author Gerald M. Levine

Not all speech in blogland is protected although as a general rule there is no exposure to liability and nothing illegal in a blogger communicating opinion or making truthful statements  of matters of public interest in her own name or anonymously. Speech is protected under First Amendment issue. Courts carefully safeguard a person’s right to express herself anonymously. But, the First Amendment cannot be invoked for all speech. Veils can be pierced. Defamation and invasion of privacy are actionable even against an anonymous blogger. The Internet and other social media tools have so vastly expanded a writer’s ability to reach an audience that careless or deliberately malicious statements are likely to have an adverse impact far beyond a target’s immediate community and do much more damage to reputation and security.

Courts are gatekeepers. The target’s problem is exacerbated when the writer hides behind a mask and asserts her Constitutional right to anonymity. So targets turn to the courts to determine whether the anonymous blogger should be unmasked. There is a careful balancing act, but courts have ordered disclosure of the anonymous writer’s identity for unprotected speech. I do not suppose any of my readers are masked libelers, but it is worthwhile to look at a relatively recent case that addresses disclosure of defamatory content.

The petitioner in In Re Cohen, 25 Misc. 3d 945 (New York County 2009) (involving a pre-action proceeding for an order to compel disclosure for the purpose of framing a complaint) alleged that the anonymous blogger posted “five different weblogs entitled ‘Skanks of NYC’ … which included photographs, captions to the photographs and commentary solely about petitioner.” Further, the “blog contains defamatory statements, including the use of the words ‘skank,’ ‘skanky,’ ‘ho’ and ‘whoring,’ which concern her appearance, hygiene and sexual conduct, and are malicious and untrue.” Words of this kind state a claim for defamation per se in that they impugn a target’s chastity and, in the case of this petitioner, “negatively reflect[] on her business as a professional full-time model.” The anonymous writer (appearing by counsel but not otherwise disclosed) counter-argued that the words “skank” and “ho” are not to be thought of as statements of objective fact, but permissible “trash talk” and “should be treated no differently than ‘jerk’ or any other form of loose and vague insults that the constitution protects.” The court rejected this view:

In the context of this specific blog, such words cannot be reasonably viewed as comparable in meaning and usage to the word ‘jerk’ or any other loose and vague insults, as the anonymous blogger urged.

More importantly, the court also rejected the argument that

Internet blogs serve as a modern day forum for conveying personal opinions, including invective and ranting and that the statements in this action when considered in that context, cannot be reasonably understood as factual assertions.

Similar arguments were made and rejected in a Virginia case circa 2000: “In that the Internet provides a virtually unlimited, inexpensive, and almost immediate means of communication with tens, if not hundreds, of millions of people, the dangers of its misuse cannot be ignored.” In this medium, one

who suffer[s] 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.

Of course, a plaintiff is only entitled to disclosure of the blogger’s identity if she can persuade the court that she has a meritorious claim. The petitioner in In Re Cohen satisfied this requirement and the court ordered the blogger’s identity disclosed.

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