LibertyVoice

Thomas O’Toole at TechLaw points us to an anonymous speech decision issued last week by a federal court in Pennsylvania.  In McVicker v. King, William McVicker subpoenaed Trib Total Media, publisher of the South Hills Record and YourSouthHills.com, for "information that would disclose the true identities" of the users of seven identified screen names. McVicker, the plaintiff in an employment discrimination case, sought the identities of the posters in order to impeach the testimony of city council members who made the decision to fire him.  The United States District Court for the Western District of Pennsylvania denied McVicker’s motion to compel the newspaper to turn over identifying information. 

The case presents a different posture from most cases dealing with the First Amendment right to anonymous speech because McVicker wanted to unmask the posters in order to make them witnesses in his case, not to make them defendants (e.g.s, the Liskula Cohen saga, Swartz v. Does, Solers, Inc. v. Doe, and Independent Newspapers, Inc. v. Brodie).  Given this posture, the ordinary test for unmasking a commenter—whether the plaintiff has made "a substantial legal and factual showing that the claims have merit"—is not appropriate. 

The McVicker court’s basic premise makes a lot of sense: "it is clear that a party seeking disclosure must clear a
higher hurdle where the anonymous poster is a non-party." McVicker, slip op. at 7.  This makes sense because the speaker is an innocent third party, not alleged to have violated the plaintiff’s rights or engaged in unprotected speech in any way, so it seems fair to demand a stronger showing to overcome the speaker’s choice of anonymity.

But, despite this starting point, the court ultimately adopted a test that doesn’t look a whole lot more rigorous than the Doe-defendant standard.  If anything, it looks weaker.  The court asks:

whether (1) the subpoena seeking the information was issued in good faith and not for any improper purpose, (2) the information sought relates to a core claim or defense, (3) the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source.

McVicker, slip op. at 10. Don’t get me wrong; I’m not necessarily faulting the court.  The only real precedent out there adopts the same test. See Doe v. 2TheMart.com,
140 F.Supp.2d 1088 (W.D. Was. 2001), and Enterline v. Pocono Medical Ctr., 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008). And the 2TheMart.com court that crafted the test drew from reporters’ privilege cases, an entirely rational source of inspiration given some of the parallels.

But there’s no denying that this test looks rather permissive in comparison to the Doe v. Cahill or Dendrite International v. Doe standards we now commonly see adopted in Doe-defendant cases.  Plus note how it only considers the plaintiff’s needs, not the defendant’s interest in remaining anonymous, which is more compelling in these Doe-witness cases. I don’t have an alternative test at my fingertips, but it seems like something worth pondering. 

Maybe the answer is that the courts should just be stringent in policing the requirements of the test. That’s what the court did here, finding that the identities of the commenters and information in their possession were not necessary for McVicker to impeach the city council members effectively and that the same or similar information might be obtained through "normal, anticipated forms of discovery." McVicker, slip op. at 11. 

O’Toole’s post mentions some additional points about the case that are worth noting: 

First, the court held that YourSouthHills.com had standing to assert the First Amendment rights of its commenters, following the Enterline case. This is not a huge surprise but it’s potentially significant from a procedural perspective as more and more news sites see it in their interest to protect the vitality of their online communities by asserting the rights of users. 

Second, the court engaged in a bit of a lark, discussing how the YourSouthHills.com’s privacy policy might have impacted the commenters’ expectations of privacy, without really making clear how this affects the First Amendment analysis. O’Toole chides the court and another recent case for "plant[ing] the notion — as they did — that online intermediaries can
expand or diminish via website terms the First Amendment right to
engage in anonymous speech."  Well said, though to be fair the court appears to have addressed this issue more to dispense with one of McVicker’s arguments than to suggest it was independently relevant to the First Amendment analysis.

My friend Catherine Crump, staff attorney at the ACLU, has an excellent op-ed in the Philadelphia Inquirer about whether police must obtain a warrant before engaging in geo-location of cell phones. The case at issue, in front of the Third Circuit, offers an important opportunity to clarify privacy rights at a time when our physical [...]

"If we walk without rhythm, we won’t attract the worm.” – Dune; see also Weapon of Choice, Fat Boy Slim

Corporations are resurrecting a blast from the past in order to identify online users. And unlike earlier attempts to trace users, this method is behavioral. Get ready to go back to finger-pecking.

Online anonymity rests on two distinct barriers to identification: (1) the difficulty linking online activity to an IP address (often aided by a webmaster’s refusal to turn over such data); and (2) the difficulty establishing which user actually used that address. On this latter point, for example, a trace might lead to a city block, or to a household with unprotected WiFi. The problem has been that, even if the government or the plaintiff could follow the breadcrumbs, they could only be certain of the access point of the offending computer or at best, the location of the offending computer itself.  The user always had the last ditch defense “That wasn’t me at the computer.” But that may all be coming to an end.

Until recently, the powers that be have overlooked a way to identify individual users by analyzing the rhythm of their keystrokes. This oversight is all the more surprising when you consider that governments used this very method of identification to great success in World War II.  But, according to Ars Technica, corporations are beginning to use this technique to create a sort of hyper-accurate cookie to ensure the visitors on a website are unique users.

As I type this blog, I engage in all sorts of typist idiosyncrasies: I strike the keys in a certain rhythm, pausing after specific letter combinations (especially odd is my use of Capslock instead of Shift for capitalization). You doubtlessly have idiosyncrasies of your own, especially for repetitive typing tasks, like entering a password.  These typing patterns/habits can be used as a digital fingerprint, provided that there are enough samples to establish your keyboardist tendencies.

This is not at all farfetched. In fact the Allies used this exact method to track Axis radio operators during the Second World War. Even if a message could not be decoded, listeners could create a record of an operator’s “fist,” his particular style of Morse code e.g. distinct and repetitive pauses between dits and dahs.  By following an operator’s fist, the Allies could determine the location of entire units: “Franz is now sending from the Eastern Front.”   The creative crowd has not overlooked the sheer brilliance of this maneuver. Neal Stephenson used the concept of a telegraphic “fist” as a plot point in his novel Cryptonomicon; Malcolm Gladwell also wrote about fists in Blink. Similarly, commentators have wondered if a coding style could serve as a fist for purposes of identification.

I think it is fairly obvious that the development of a robust method of typewriting analysis would greatly threaten online anonymity, precisely because there is not an obvious countermeasure. IP tracing can be thwarted in numerous ways (onion routing comes to mind). But you are unlikely to suddenly change the way you type. German radio operators did not want to have a special identifying style, neither do Internet users, but these patterns are just part of our behavior. I doubt that any large number of users could become so paranoid as to engage in manual “Crazy Ivans” or rapid unpredictable changes in typing habits.

Granted, these habits are not unique. But they don’t have to be. If 1 in 20,000 people share the same pattern, a user’s fist would still be a very useful filter when combined with information like an IP address.  

None of this should sound crazy. I wrote a few days ago about the FBI’s desire for a URL log for every user. Surely, a record of typing habits would be of even greater use for law enforcement. It would not matter if the target user switched computers or exploited an open WiFi signal, he would carry his digital signature with him. Fingerprints are coming to the Internet ("Enigma has been cracked!") and the security of online identities may never be the same.

UPDATE

 I gave a fun little interview on this topic for NPR’s On The Media. You can hear it at http://www.onthemedia.org/transcripts/2010/02/26/03

(Andrew Moshirnia is a second-year law student at Harvard Law
School and a CMLP blogger. Just to be on the safe side, he typed this message with a dialing wand. )

Poster "WWIII Propaganda: Loose Tweets Sink Fleets" courtesy of Flick user Brian Lane Winfield Moore, licensed under a CC BY-NC-SA 2.0.

So here is a nice and scary development. It appears that the FBI wants Internet Service Providers (ISPs) to keep a log of the url’s visited by consumers. Wait it gets better. This log would be retained for two years. AND, a complete url listing would require deep packet inspection, which is a no-no under the Wiretap Act.

The FBI says not to worry, we won’t collect this information without a warrant. This of course would inspire more confidence if the FBI had not been caught repeatedly violating the warrant requirements of the Wiretap Act and other domestic spying restrictions.

I imagine that this request will not be granted but there are a few ways the request could be modified to become more palatable. First, the FBI could request a domain log rather than a url log; this would remove the requirement for deep packet inspection. Second, Congress could remove or weaken sections of the telecom immunity statute, which would then give ISPs at least some reason to keep the FBI honest. Third, the FBI could lower its retention period to 3 months (90 days have a much better ring to it than 2 years). However, step 2 is almost certainly not going to happen, as the administration has abandoned its hostile position to telecom immunity. (That’s not the kind of transparency I expected.)

ISPs are resisting the request, not due to privacy concerns but due to infrastructure demands. Logging urls for every user would require an immense amount of storage. Of course, if the ISP has a pay-per-view system, and the FBI can finally start paying its spying fee promptly, I’m sure the spy infrastructure could be paid for with taxpayers’ money.

The whole discussion calls to mind the greater debate over user privacy/anonymity in the online world. The crime doing most of the work here is child pornography (we need to know who visited a site in order to make charges stick etc.), but this is almost certainly a McGuffin. There’s no reason to believe that these types of warrants will be limited to crimes of child exploitation. Congress has little incentive to keep the list of triggering offenses
short; soon your search history could be used to prove you cheated on
your taxes or want to buy non-market Cialis. For an example of the incredible-growing offense list in a domestic spying bill, see the Wiretap Act, which now includes essentially every federal offense.

However, perhaps we should be happy that at least this spying program will not be totally secret.

But still, the potential for abuse is enormous. Users typically explore very personal topics online and even a domain log could expose individuals to a great deal of embarrassment. Further, the domain log might not even reflect a user’s preferences. Rickrolling is all well and good, but those users in it for the lulz have been known to link to far more disturbing (and even incriminating) images. Goatsee comes to mind (though no link provided here). All this information has a way of getting out; let’s not forget the AOL search data debacle. 

While the exploitation of children is especially heinous, this approach is simply too much. But, in light of the fact that the government is eager to engage in mass spying, I’m willing to meet the FBI halfway here. At least one court has okayed the government’s use of a key-logging virus on a suspect’s computer. Surely a wiretap authorized url-logging virus (think of it as a really nasty cookie) could be cooked up. While that approach does not thrill me, it could allow the government to observe online criminal behavior without involving ISPs or countless innocent individuals. The government would also have a strong incentive to keep the virus contained; the more computers it infected, the more likely it would be detected and quarantined, with an anti-virus sure to follow. While many horror stories start with a government created virus, we can hope that this story ends with one.   

(Andrew Moshirnia is a second-year law student at Harvard Law School and a CMLP blogger. He has read The Zombie Survival Guide … you know … just in case. ) 

An anonymous student at BLS has started a great blog, You Can Wordify Anything If You Just Verb It. It collects the more… interesting… things said by both profs and students. I’m already spending significant cycles trying to guess the provenance of some of these quotes. Given that certain of them mention Internet Law, I [...]

Advance Magazine Publishers v. Does 1-5, No. 09-10257 (S.D.N.Y. Dec. 22, 2009)
Someone accessing the Internet using an AT&T IP address hacked into Conde Nast’s computer system and acquired and published copies of editorial content and the images that were to be in the December 2009 issue of GQ. Those images were later published anonymously on [...]

When a dog bites a man, that is not news, because it happens so often. But if a man bites a dog, that is news. — attributed to  New York Sun city editor John B. Bogart (1848- 1921)

Unfortunately, it’s become an increasingly common occurrence: a public
official, outraged over something posted about him/her anonymously on the Internet, asks
a court to issue a subpoena to find out the identity of the poster(s). The Legal Threats Database contains a number of examples, and the "Legal Protections for Anonymous Speech" section of the Legal Guide lays out the legal analyses that courts have used to evaluate these subpoenas. 

So it wasn’t too surprising when Pittsburg County, Oklahoma District Attorney Jim Bob Miller issued a subpoena
to Harold King, operator of the McAlester Watercooler
forum site, seeking information, including (oddly)
social security numbers, to identify about 35 pseudonymous posters on
the site.  But what made the case unusual was that D.A. Miller was one
of the individuals who had filed a complaint for criminal defamation (details here) against King with the local police.  (The other complainants were
local businessman Wayne Stipe—who had a physical altercation with King
over the site—and his mother, Billie Jean Stipe.  Incidentally, Wayne Stipe’s uncle, former state senator Gene Stipe, filed a criminal defamation complaint against King in 2005.)

After Miller issued the subpoena, his deputy, First Assistant District
Attorney Richard Hull, sent a letter to Oklahoma Attorney General Drew
Edmondson asking that Miller be removed from the case.  Miller then
apparently recused himself, and all of the criminal complaints against
King were referred to Kay County District Attorney Mark Gibson for
investigation.

It took almost a year, but in September 2009 Gibson announced a charge in the case:  against Wayne Stipe for criminal assault and battery.  At the same time, District Attorney Miller agreed to a
deferred prosecution agreement with Attorney General Edmondson’s office on a charge of "common barratry," which is "the practice of exciting groundless judicial proceedings," Okla. Stat. tit. 21, § 550.  The offense is a misdemeanor,  Okla. Stat. tit. 21, § 551, punishable by up to one year of imprisonment and/or a fine of up to $500.  Okla. Stat. tit. 21, § 10.

As part of the deferred prosecution agreement, Miller agreed not to
seek re-election in 2010.  The agreement also waives the statute of
limitations on the charge, so that the prosecution can proceed if
Miller does run for a new term.

"It’s our opinion that the district attorney did not have the authority
to issue that subpoena," a spokesman for Attorney General Edmondson
said in announcing the agreement, according to the McAlester News-Capital. 
"To settle the state’s concerns, Oklahoma Attorney General Drew
Edmondson’s office has agreed to a deferred prosecution agreement on a
charge of common barratry."

"There’s a real problem when you’re the victim issuing a subpoena in a criminal case," Attorney General Edmondson told the Daily Oklahoman. "That’s what gave rise to the complaint."

In a statement to the Oklahoman, Miller commented on his decision not to run for re-election: "It was a decision that I have considered
for many months, but which was obviously helped along by the
allegations from the attorney general’s office."

But the operator of the McAlester Watercooler site was not satisfied.  "I consider this a political cover-up," Harold King told the News-Capital.
"This was to get Jim Bob off with as little as possible. They had to
look long and hard to find a misdemeanor." There’s more commentary in
this vein by King and his audience on the Watercooler site.

While King is not satisfied, this is a rare case in which an elected
official was held accountable for misusing his office in order to seek
the identity of anonymous online critics.  And as such, it should be a
cautionary tale for other politicians contemplating the use of
government power to unmask and intimidate their critics, both online
and off.

Maybe I’m a big dork, but I think Office Space is a totally hilarious movie.  And based on his starring role in the film, I would assume that actor Ron Livingston has a pretty good sense of humor.  But apparently not so, at least when it comes to web 2.0 technologies and his personal life.

Last week, Livingston filed a libel lawsuit against a "John Doe" defendant in California state court, alleging that an unknown Internet user repeatedly edited Livingston’s Wikipedia entry to falsely claim that he is romantically involved with a man named "Lee Dennison."  Livingston also claims that John Doe created fake Facebook profiles for Livingston and "Dennison" and used them to create the false impression that the two were "in a relationship."

Livingston will no doubt subpoena Wikipedia and Facebook in an effort to unmask the anonymous prankster.  California courts, like most courts across the nation, require plaintiffs to make a substantial legal and factual showing before ordering the disclosure of an Internet speaker’s identity.  So, Livingston will have to show he’s got a good claim just to get the case started.  This could require litigation on a fascinating topic—whether falsely claiming that someone is a homosexual is actionable defamation.  Ben Sheffner raised the question and hit the high points on Monday; this post will try to fill in a bit of the legal landscape and touch on California law.

(The complaint also includes claims for false light invasion of privacy and misappropriation of name and likeness, but I won’t get to them in this post.)

In California, "libel" is defined as a false statement of fact "which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation."  Cal. Civ. Code § 45.  The formal language is not all that helpful, but the gist is that the allegedly defamatory statement must hurt the plaintiff’s reputation in his/her community, or at least "an important and respectable body of the community." Peck v. Tribune Co., 214 U.S. 185, 190 (1909) (Holmes, J.); see Restatement (Second) of Torts § 559 cmt. e (a "substantial and respectable minority" of the community will suffice).  With a quick search, I didn’t turn up California cases discussing the scope of the relevant community, so please drop a note in the comments if you know some good cases on this point.

As this excellent Slate article points out, community norms can change from place to place and from one generation to the next. Or, as one court put it, whether a statement is defamatory "depends, among other factors, upon the temper of the times, the current of contemporary public opinion, with the result that words, harmless in one age, in one community, may be highly damaging to reputation at another time or in a different place." Beamer v. Nishiki, 670 P.2d 1264, 1267 (1983); compare Washburn v. Wright, 261 Cal. App. 2d 789, 787 (Cal. Ct. App. 1968) (holding that "in the mental climate of 1964" it was not defamatory per se to assert that the plaintiff was a member of the John Birch Society and an extremist).  So, it was once defamatory to claim that a white person had African-American ancestry, but that is no longer the law.  The same is generally true for calling someone a "communist," at least outside Vietnamese-American communities. 

When it comes to falsely claiming that someone is gay, the courts appear to be split, but it is hard to say for sure because of the evolving nature of the inquiry. There are some cases saying that labeling someone a homosexual is defamatory per se under one state’s law or another.  See, e.g., Plumley v. Landmark Chevrolet, 122 F.3d 308, 310-11 (5th Cir. 1997) (Texas law); Gallo v. Alitalia-Linee Aeree italiane-Societa Per Azioni, 585 F. Supp. 2d 520, 549-50 (S.D.N.Y. 2008) (New York law); Murphy v. Pizarrio, 1995 WL 565990, *3 (S.D.N.Y. 1995) (New York law); Nazeri v. Missouri Valley College, 860 S.W.2d 303, 312 (Mo. 1993) (Missouri law).  Conversely, there are cases coming out the other way, holding that false claims of homosexuality are not defamatory per se, but leaving open the possibility of recovery if the plaintiff can show specific economic harm flowing from the allegedly defamatory statement.  See, e.g., Donovan v. Fiumara, 442 S.E.2d 572, 575-76 (N.C. Ct. App. 1994) (North Carolina law); Moricoli v. Schwartz, 361 N.E.2d 74, 76 (Ill. Ct. App. 1977) (Illinois law); Albright v. Morton, 321 F. Supp. 2d 130, 136-39 (D. Mass 2004) (Massachusetts law).

As Ben points out, this past summer Judge Denny Chin ruled that a false allegation of homosexuality is not defamatory per se under New York law.  Stern v. Cosby, 645 F. Supp. 2d 258 (S.D.N.Y. 2009).  Judge Chin cited a "veritable sea change" in social attitudes about homosexuality over the past few decades and concluded that New Yorkers do not "view gays and lesbians as shameful or odious."  Importantly, he also pointed out that labeling someone a homosexual can no longer be viewed as imputing criminal conduct after the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003), which invalidated state laws criminalizing homosexual sodomy between consenting adults. This development undercuts an argument that many—but not all—of the older cases coming to the opposite conclusion relied upon. Judge Nancy Gertner’s earlier decision in Albright v. Morton, 321 F. Supp. 2d 130 (D. Mass 2004), makes many of the same points as Judge Chin’s opinion in Stern.

When we turn our eyes towards California, at first it looks pretty bad for our mischievous and juvenile John Doe.  Slate reports that, in 2003, Tom Cruise won a $10 million dollar judgment in California court in a libel suit against a porn star who claimed he and Cruise had been lovers.  That’s about as bad as bad gets, I suppose.  But, precedent-wise, the case has little value because it appears the defendant defaulted so the case wasn’t contested.

But there’s more.  As I’m sure Livingston’s lawyers are aware, there’s a 1980 case from the Court of Appeal, Fourth District, holding that "false imputation of the commission of a homosexual act is slanderous per se." Schomer v. Smidt, 113 Cal. App. 3d 828, 835 (Cal. Ct. App. 1980).  Making things interesting, the court did not rely on the outdated and legally vulnerable argument that calling someone a homosexual imputes criminal conduct, but rather on the equally outdated—but probably less legally vulnerable—argument that calling someone a homosexual imputes lack of chastity (oh my!):

Based on the new thinking a homosexual or heterosexual act could be proper, legal and questionably "moral."  But everyone has a right to refrain from such activity and to enjoy an unsullied reputation of restraint.  To state that one carries on sexual conduct be it alone, with members of the opposite or similar sex imputes to them "want of chastity," which in the eyes and minds of their peers might and could subject them to disgrace, ridicule, damage to reputation, lacking virtue or reliability.

I’m not sure what a California judge in 2009 would do with this argument.  On this very point, the leading defamation treatise quips: "Many adult American women might well consider it more harmful to be called ‘unchased’ than ‘unchaste,’ the common law to the contrary notwithstanding." Sack on Defamation § 2.4.4. And I’m sure the same can be said for modern American men.  Given that defamation law can "evolve from one generation to the next," Stern, slip op. at 24, we might be looking at a whole new ball game.

But, getting back to basics, what about the views of the relevant community? California is on the left coast; it’s liberal, right?  Doh! See Proposition 8.  But what about the most pertinent community in which to judge reputational injury to a movie star—are you telling me Hollywood is intolerant towards homosexuals? That’s a toss up, but actor Rupert Everett just published a piece in the Huffington Post called "Rupert Everett’s Advice to Gay Actors: Stay in the Closet." Ian McKellen made similar criticisms in 2007. 

Alas, California might be a situation where, in the words of Judge Colleen McMahon interpreting New York law, "the prejudice gays and lesbians experience is real and sufficiently widespread so that it would be premature to declare victory."  Gallo, 585 F. Supp. 2d at 549-50.  But, you could always end up with a judge who refuses to validate the prejudices of the community.  Judge Gertner relied on this line of argument in construing Massachusetts law: "If the Court were to agree that calling someone a homosexual is defamatory per se—it would, in effect, validate the sentiment and legitimize relegating homosexuals to second-class status."  Albright, 231 F. Supp. 2d at 138.  I’ll leave it to you to decide which approach better suits your vision of democracy.

This one is a little disturbing.

Political Race Gets Nasty

During an election in Buffalo Grove, Ill., an online debate started about a candidate for Village Trustee, Lisa Stone. During that debate, this public official’s 15 year old son, Jed, got a little upset about some harsh statements lobbed at his mother, so he joined the debate — in particular, getting into a flame war with "Hipcheck16".

At one point, the teen asked to know the poster’s identity and challenged him to debate the issues in person.

Declining an invitation to pay a visit, Hipcheck16 posted a response that said, according to court documents, "Seems like you’re very willing to invite a man you only know from the Internet over to your house — have you done it before, or do they usually invite you to their house?"

The post then continues with references to the boy’s "mommy," saying that statements made by her son may cause her political problems after her election, according to court records. (source)

Stone sought Hipcheck16’s identity, apparently through a pre-suit subpoena. Stone claimed, “a comment was posted on this public forum by Hipcheck16 directed to the minor Petitioner that was defamatory.” (source). The judge ruled that Hipcheck16’s identity could be revealed to Stone if she decided to take legal action.

Stone calls this case about "protection on the internet." (source)

Piecing together the story from the above-quoted news account and this story, this seems less about "protection on the internet," and more like abuse of power mated with mama drama and a judge who got the law entirely wrong.

Anonymous 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.”). This is especially so when the speech is of the political variety. The judge had a duty to evaluate whether the statements were actionable, and then, if he found them to be so, Hipcheck16’s identity should have been revealed. So far, I can’t find a statement made by Hipcheck16 that a reasonable judge should find to be defamatory.

Although the law is a patchwork, the consensus view of courts across the country is this: In order to unmask an anonymous speaker on the Internet, a plaintiff must demonstrate "a substantial legal and factual showing that the claims have merit." See Sam Bayard, Swartz v. Does: Tennessee Court Says Couple Entitled to Unmask Anonymous Blogger. See also Solers, Inc. v. Doe, 977 A.2d 941, 954-57 (D.C. 2009); Sinclair v. TubeSockTedD, 2009 WL 320408, at *2 (D.D.C. Feb. 10, 2009); Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008); Doe I v. Individuals, 561 F. Supp. 2d 249, 254-56 (D. Conn. 2008); Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp.2d 1205, 1216 (D. Nev. 2008); Mobilisa v. Doe, 170 P.3d 712, 720-21 (Ariz. Ct. App. 2007); Greenbaum v. Google, 845 N.Y.S.2d 695, 698-99 (N.Y. Sup. Ct. 2007); In re Does 1-10, 242 S.W.3d 805, 822-23 (Tex. Ct. App. 2007); Reunion Indus. v. Doe, 2007 WL 1453491 (Penn. Ct. Comm. Pleas Mar. 5, 2007); McMann v. Doe, 460 F. Supp.2d 259, 268 (D. Mass. 2006); Best Western Int’l v. Doe, 2006 WL 2091695, at * (D. Ariz. 2006); Highfields Capital Mgmt. v. Doe, 385 F. Supp.2d 969, 975-76 (N.D. Cal. 2005); Doe v. Cahill, 884 A.2d 451 (Del. 2005).

Defamation of Public Figures

In order to show that there is any merit at all to her case, Ms. Stone would need to show that there was an actionable legal wrong — and that wrong was visited upon her son. That seems, as a matter of law, to be an impossibility.

Ms. Stone’s son may have been a public figure before the controversy started. I know of at least one case (from Florida) in which the husband of a lawmaker was deemed to be a public figure. See Dockery v. Florida Democratic Party, 799 So.2d 291 (Fla. 2d DCA 2001). Even if he was not a public figure before the debate started, Stone’s son certainly became a limited purpose public figure when he voluntarily entered the debate. I might feel differently about him, had he simply remained silent while anonymous critics made caustic and degrading remarks about him. But the boy jumped in the ring — he shouldn’t be a crybaby about it when he gets hit (especially when he seems to have won the fight).

As a public figure, in order to prevail in a defamation case, Stone must prove the “actual malice” on Hipcheck16’s part. While Stone probably thinks that the statements were "malicious" (and they certainly were), “actual malice” has a precise legal meaning, i.e.; known falsity or a reckless disregard for the truth. See New York Times v. Sullivan, 376 U.S. 254 (1964):

[There is] a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

The purpose of the First Amendment is to ensure the unfettered exchange of ideas among the American people. See Roth v. United States, 354 U.S. 476, 484 (1957). The First Amendment does not demand politeness, fairness, nor that debate should be measured and soft. In fact, the First Amendment provides ample breathing room for political discourse to get nasty, unfair, and brutish. See New York Times v. Sullivan, 376 U.S. 254. Furthermore, the First Amendment does not require that every statement be 100% objectively true, nor does it allow defamation suits to continue just because a statement is false, or implies a nasty falsehood.

Vitriol is Protected

When it comes to defamation, it is not a simple matter of (False Statement) + (Angry Plaintiff) = Defamation. Context is everything. See Greenbelt Coop. Pub. Ass’n. v. Bresler, 398 U.S. 6 (1970) (when it is apparent, in the context of a statement, that its meaning is figurative and hyperbolic, the falsity of the literal meaning does not equal a knowing falsehood or reckless disregard for the truth, thus a public figure can not prove actual malice as a matter of law).

In Dworkin v. L.F.P, Inc., 839 P.2d 903 (Wyo. 1992), Hustler Magazine called Andrea Dworkin inter alia a “shit-squeezing sphincter” and “a cry-baby who can dish out criticism but clearly can’t take it," Id. at 915.

Under prevailing constitutional First Amendment safeguards, that language cannot, as a matter of law, form the basis for a defamation claim…We agree with that said by the Ninth Circuit Court of Appeals: "Ludicrous statements are much less insidious and debilitating than falsities that bear the ring of truth. We have little doubt that the outrageous and the outlandish will be recognized for what they are." Dworkin v. Hustler, 867 F.2d at 1194. Vulgar speech reflects more on the character of the user of such language than on the object of such language. Curtis Publishing Co. v. Birdsong, 360 F.2d 344, 348 (5th Cir. 1966). Id at 915-916.

The law is clear that defamation law is not there to protect anyone from annoying speech, embarrassing speech, vigorous epithets, or mere vitriolic spewings of an anonymous coward.

This analysis is followed in Illinois. Posner has written that rhetorical hyperbole "is a well recognized category of, as it were, privileged defamation." Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996) See also Lifton v. Bd. of Educ. of the City of Chicago, 416 F.3d 571, 579 (7th Cir. 2005) (Illinois law requires that an allegedly defamatory statement must contain an objectively verifiable factual assertion); Pease v. Int’l Union of Operating Engineers Local 150, et al., 208 Ill.App.3d 863, 153 Ill.Dec. 656, 567 N.E.2d 614, 619 (1991) ("Words that are mere name calling or found to be rhetorical hyperbole or employed only in a loose, figurative sense have been deemed nonactionable."). "The Illinois Supreme Court considers several nonexclusive factors in determining whether a statement constitutes an opinion or factual assertion: (1) whether the statement has a precise and readily understood meaning; (2) whether the statement is verifiable; and (3) whether the statement’s literary or social context signals that it has factual content." Madison v. Frazier, 539 F.3d 646, 654 (7th Cir. Ill. 2008) citing J. Maki Constr. Co. v. Chicago Reg’l Council of Carpenters, 379 Ill.App.3d 189, 318 Ill.Dec. 50, 882 N.E.2d 1173, 1183 (2008) (citing Tuite, 310 Ill.Dec. 303, 866 N.E.2d at 121).

The "accusation" is clear — that young Mr. Stone has sexual liaisons with older men after invitations are exchanged over the Internet. The accusation is presumably false, and would be defamatory — in a vacuum. However, in the context of a flame war on a blog, it would be clear to any reader except the most bleeding-cerebrum imbecile that the statement was not lobbed as a statement of fact, but a mere insult. As such, this would be correctly described as "imaginative expression," which is not actionable as defamation. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990).

Context is everything, and in the context of the online exchange, anyone who thinks that the statements to be false statements of fact that could support a defamation action is not qualified to hold the remote control to the television, let alone elected office or a judge’s gavel. Saenz v. Playboy Enterprises, Inc., 653 F. Supp. 552 (N.D. Ill. 1987) ("A reader of criticism expects rhetorical hyperbole and vivid metaphor, so the use of lively language is understood as hyperbole and metaphor, not as fact"), aff’d by 841 F.2d 1309 (7th Cir. 1988).

Hipcheck16 still sucks - and Jed Stone kicked his ass - but I still reluctantly side with Hipcheck16

This is not to defend Hipcheck16’s statements. In fact, I find them to be juvenile (and if I find something juvenile…), stupid, unnecessary, and a sign that Hipcheck16 is probably a weak and unintelligent person. Lets face it, Jed Stone is a 15 year old kid. If the best counter-argument that you can chuck at a 15 year old kid is a stupid sexual innuendo, then it is clear that Jed Stone kicked Hipcheck16’s ass in the debate already. It sounds like Jed can take care of himself. Sadly, his mother is capitalizing on drama, presumably to ride the "what about teh childrens on teh internets" wave.

Hipcheck16’s statements are stupid, unimaginative, and not worthy of anyone taking them seriously. Lisa Stone, on the other hand, is even worse. She is lashing out like a crazy-white-lady mom, and cares nothing for the damage that her actions could cause to political debate. She should let her son stand up for himself - he’s obviously capable of doing so. She’s taken his victory away from him by bringing this action, and the judge really needs a remedial course in Constitutional law.

Michael Furlong, Hipcheck16’s attorney, stated that his client was pondering an appeal.  Let us hope, for the First Amendment’s sake, that he doesn’t back down from the challenge.  

H/T to Ari Cohn for the pleading.

A Tennessee state court ruled earlier this month that plaintiffs Donald and Terry Keller Swartz are entitled to discover the identity of the anonymous blogger behind the Stop Swartz blog who published critical statements about them and encouraged readers to post information on their whereabouts and activities. In his decision, Judge Thomas W. Brothers adopted a legal standard highly protective of anonymous online speech, but found that the Swartzes had come forward with sufficient evidence in support of their claims of wrongdoing to outweigh the anonymous blogger’s right to anonymity.

The Swartzes sued the anonymous blogger back in February 2008 for defamation and invasion of privacy and subpoenaed Google, the parent company of the Blogger hosting service used by Stop Swartz.  The John Doe defendant moved to quash the subpoena, and in a March 2009 hearing (video available) the court indicated that it would follow the requirements of Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), and granted a temporary protective order pending resolution of the First Amendment issues. (See my previous post for details.)

In his October decision, Judge Brothers revisited the question of "what standard should be applied to balance the First Amendment interests of John Doe #1 with the defamation and privacy concerns of [the Swartzes."  The court reaffirmed that Dendrite strikes the appropriate balance and gave explicit guidance on how to apply the test (in marked contrast to the Maryland Court of Appeals in Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009)):

The Court concludes that the Dendrite test is the best method of determining whether a plaintiff is entitled to pierce a defendant’s shield of anonymity.  The Court further finds that this factual showing must be made by affidavit, deposition, or sworn statement, and that mere allegations of fact are insufficient.  As the Solers and Krinsky courts have noted, the labels of "summary judgment" or even "prima facie" are potentially confusing.  By adopting the Dendrite analysis, the Court does not focus on the terminology, but rather the requirement that a plaintiff make a substantial legal and factual showing that the claims have merit before permitting discovery of an anonymous defendant’s identity. 

Slip op. at 8. Admirably cutting through the semantic differences between standards, the court isolated the critical requirement — "a substantial legal and factual showing that the claims have merit" — and thereby joined the growing consensus among federal and state courts that have addressed the issue.  See, e.g., Solers, Inc. v. Doe, 977 A.2d 941, 954-57 (D.C. 2009); Sinclair v. TubeSockTedD, 2009 WL 320408, at *2 (D.D.C. Feb. 10, 2009); Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008); Doe I v. Individuals, 561 F. Supp. 2d 249, 254-56 (D. Conn. 2008); Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp.2d 1205, 1216 (D. Nev. 2008); Mobilisa v. Doe, 170 P.3d 712, 720-21 (Ariz. Ct. App. 2007); Greenbaum v. Google, 845 N.Y.S.2d 695, 698-99 (N.Y. Sup. Ct. 2007); In re Does 1-10, 242 S.W.3d 805, 822-23 (Tex. Ct. App. 2007); Reunion Indus. v. Doe, 2007 WL 1453491 (Penn. Ct. Comm. Pleas Mar. 5, 2007); McMann v. Doe, 460 F. Supp.2d 259, 268 (D. Mass. 2006); Best Western Int’l v. Doe, 2006 WL 2091695, at * (D. Ariz. 2006); Highfields Capital Mgmt. v. Doe, 385 F. Supp.2d 969, 975-76 (N.D. Cal. 2005); Doe v. Cahill,
884 A.2d 451 (Del. 2005).

What’s especially interesting about this case is that it provides a window onto how trial courts can apply the Dendrite standard and how plaintiffs can satisfy it. The court held a hearing in August 2009, in which the Swartzes presented live testimony for the judge.  Although the court expressed a willingness to accept a sworn affidavit under pseudonym, John Doe presented no proof.  (A video of the hearing is available in two parts here and here, but unfortunately the sound quality is not great.)  In his decision, Judge Brothers pointed out exactly what evidence persuaded him:

• The Swartzes submitted and displayed copies of the blog posts in question, and testified that they were available for several months (satisfying the publication requirement for a defamation claim);
• The Swartzes "testified that the allegations of arson, improper management of rehabilitation facilities, exploitation of recovering substance abusers, inferior construction work, negative effect on home prices, and being ‘run out of East Nashville’ are all false" (satisfying the falsity requirement);
• The Swartzes testified that they "experienced actual damages from the allegedly defamatory statements, including loss of business, harm to their reputations, emotional distress, and the costs of having to hire a security expert to inspect their home" (providing evidence of damages).

See slip op. at 9-10. The court was less clear on how the Swartzes showed that the anonymous blogger acted recklessly or negligently in publishing the allegedly defamatory statements, but this is not surprising given the difficulty of establishing fault without knowing the identity of the defendant.  See Mobilisa, 170 P.3d at 720; Krinksy, 72 Cal. Rptr. 3d at 245 n.12; Cahill, 884 A.2d at 464. The court’s analysis of the invasion of privacy claim was also more cursory, but it’s clear that Judge Brothers relied on live testimony to establish the requisite factual showing of merit.

Despite this victory, it looks like the Swartzes won’t get immediate satisfaction.  Judge Brothers granted the John Doe defendant’s request for interlocutory appeal, which presumably stays his order permitting disclosure of the blogger’s identity.  The court found that "appellate court review would prevent irreparable injury, prevent needless and protracted litigation, and facilitate the development of a uniform body of law." Slip op. at 12.  I don’t know whether the appellate court has to grant the appeal, but if it does we’ll benefit from a more authoritative ruling from Tennessee, hopefully one that stays with the national consensus on the law, regardless of how it comes out on the particular facts of the case.

You can follow developments in the case through our database entry, Swartz v. Does. Thanks to Nashville Law for sending me the court’s decision and posting all the cool videos.

(Photo courtesy of Flickr user Koen Cobbaert, licensed under a CC Attribution-Noncommercial-Share Alike 2.0 Generic license.)