Slashdot Mirror
Court Rules in Favor of Anonymous Blogger
joel_archer writes "The Delaware Supreme Court on Wednesday reversed a lower court decision requiring an Internet service provider to disclose the identity of an anonymous blogger who targeted a local elected official. Judge Steele described the Internet as a 'unique democratizing medium unlike anything that has come before,' and said anonymous speech in blogs and chat rooms in some instances can become the modern equivalent of political pamphleteering. 'We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously,' Steele wrote."
It makes me sad that this is news.
Raj Against the Machine! http://social-butterfly.appspot.com/
It pleases me to know that there are judges out there in tune with the Internet, who know what it is, what it represents, and recognize it for the "unique democratizing medium" that it is. These days seem rampant with politicians, judges, and CEOs all interpreting in favor of the bigger guys. The recent rulings against the RIAA and cases such as this one begin to restore my faith in the American judicial system. We've still got a way to go and the system will never be perfect, but at least there is a glimmer.
What is your penile percentile?
Article above In two messages from September of 2004, Proud Citizen discussed a member of the Smyrna Town Council, Patrick Cahill, referring to Cahill's "character flaws," "mental deterioration," and "failed leadership," and stated that "Gahill [sic] is...paranoid."
EFF Article
One article makes it sound like its teenagers calling each other fags, and the other points to actual political opinions.
Either way, this is how NOT to react. Don't these people know how to take anything lightly?
And then, a million bloggers rose in triumphant jubilation, only to sit back down panting heavily.
By RANDALL CHASE
Associated Press Writer
DOVER, Del.
In a decision hailed by free-speech advocates, the Delaware Supreme Court on Wednesday reversed a lower court decision requiring an Internet service provider to disclose the identity of an anonymous blogger who targeted a local elected official.
In a 34-page opinion, the justices said a Superior Court judge should have required Smyrna town councilman Patrick Cahill to make a stronger case that he and his wife, Julia, had been defamed before ordering Comcast Cable Communications to disclose the identities of four anonymous posters to a blog site operated by Independent Newspapers Inc., publisher of the Delaware State News.
In a series of obscenity-laced tirades, the bloggers, among other things, pointed to Cahill's "obvious mental deterioration," and made several sexual references about him and his wife, including using the name "Gahill" and "CmdrTaco" to suggest that Cahill, who has publicly feuded with Smyrna Mayor Mark Schaeffer, is homosexual.
In June, the lower court judge ruled that the Cahills had established a "good faith basis" for contending that they were victims of defamation and affirmed a previous order for Comcast to disclose the bloggers' identities.
One of the bloggers, referred to in court papers only as John Doe No. 1 and his blog name, "Proud Citizen," challenged the ruling, arguing that the Cahills should have been required to establish a prima facie case of defamation before seeking disclosure of the defendants' identities.
The Supreme Court agreed, reversing and remanding the case to Superior Court with an order to dismiss the Cahills' claims.
"Because the trial judge applied a standard insufficiently protective of Doe's First Amendment right to speak anonymously, we reverse that judgment," Chief Justice Myron Steele wrote.
Steele described the Internet as a "unique democratizing medium unlike anything that has come before," and said anonymous speech in blogs and chat rooms in some instances can become the modern equivalent of political pamphleteering. Accordingly, a plaintiff claiming defamation should be required to provide sufficient evidence to overcome a defendant's motion for summary judgment before a court orders the disclosure of a blogger's identity.
"We are concerned that setting the standard too low will chill potential child molesters from exercising their First Amendment right to speak anonymously," Steele wrote. "The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all."
The standard adopted by the court, the first state Supreme Court in the country to consider the issue, is based on a 2000 New Jersey court ruling.
Under the standard adopted by the Supreme Court, a plaintiff must first try to notify the anonymous poster that he is the subject of subpoena or request for a court to disclose his identity, allowing the poster time to oppose the request. The plaintiff would then have to provide prima facie evidence of defamation strong enough to overcome a summary judgment motion.
"The decision of the Supreme Court helps provide protection for anonymous bloggers and anonymous speakers in general from lawsuits which have little or no merit and are filed solely to intimidate the speaker or suppress the speech," said David Finger, a Wilmington attorney representing John Doe No. 1.
"Delaware cases are generally respected in other states, and we'll have to see if this trend continues with these types of lawsuits, but I expect the decision of the Delaware Supreme Court to be influential," Finger added.
Robert Katzenstein, a lawyer representing the Cahills, did not immediately return a telephone message left at his home.
"This is the first state Supreme Court to squarely decide the standards to govern John Doe subpoena cases," said Paul Alan Levy, an attorney for Public Citizen, a national, nonprofit consumer advocacy organization,
This really shouldn't be news. The whole thing against the blogger is stupid. It's like saying you'd sue someone who was spouting crap in speaker's corner - if that were the case what would be the point in speaker's corner?????
... isn't a carte blanche for slander and libel.
Remember folks, slashdot doesn't have a -1 "disagree" moderation!
40,000 visitors to be exact.
Someone in the mental picture of "goverment" who actually stands up for the constitution instead of trying to circumvent it.
We need more of these guys.
Cheers
Damn, just his name alone makes him someone I wouldn't want to fuck with. I wonder if he has his own TV show.
NEXT, ON JUDGE STEELE...
Fuck yeah!
I can't find anything in the first amendment which addresses a right to speak anonymously.
Although I do agree with the court ruling.
http://illhostit.com/ - Webhosting
I first read "Court Rules in Favor of Annoying Blogger."
I'm surprised the judge asserted the blogger had the right to post anonymously.
But that aside: if you've got something to say have the guts to put your name to it. If you're not then perhaps you shouldn't be saying it? How do we know this blogger isn't simply lying? Or is an estranged mistress with a grudge? Or is a political opponent?
If the blogger is concerned about reprisals or being sued for defamation then I can't see how that's a defence. If they should be allowed to say whatever it is then the law should protect them and defamation suits shouldn't be possible. That's where they should receive the courts protection. If they're restricted in what they can say (defamation for example) then they should have to take the consequences of their actions and not be allowed to hide behind their anonymity.
Bad analogies are like waxing a monkey with a rainbow.
Passed is either the past tense or past participle of the verb pass, and basically means to move past something (i.e. time passes, one car passed another, Those days have passed into history, etc).
So, for dustinbarbour the following would have been correct: The public in this country has taken a such a rash beating in the past years that we get all excited when things are decided in favor of the law.
(I added the "such a" to make it more grammatically correct with the "that we..." though there are other ways of phrasing this).
Hope this helps. Now, Mods, do your job and mod me down with all of your hatred (for being off-topic).
Disclaimer: this post has not been check for its own grammar mistakes. Real grammar Nazis, do your worst!
"Empathise with stupidity, and you're halfway to thinking like an idiot." - Iain M. Banks
The judge was wrong
Judges, not judge. Judges of the State Supreme Court.
Okay, so you're saying that the Supreme Court of Delaware was wrong on a point of law with regard to the State of Delaware. Are you going to cite any precedents at all to support that or are you just claiming to out-expert them?
To summarise the summary of the summary: people are a problem. ~ h2g2
I have to ask what is the real damage that is caused by the blogs? After RTFA it appears to me that the postings in question are part of a newspaper website article discussion. I wouldn't exactly call that a blog, unless slashdot is also a blog. I don't know of any material damage that could ever be caused by slashdot posters, and even less so of anonymous posters on a newspaper website. I would say that the Bush administration has a better case for slander almost any time a Democrat Representative or Senator appears on Meet the Press and criticizes ability. Bush has more of a slander case against Green Day for the American Idiot album.
I think this is just another sad case of someone thinking the internet is a threat to their "business" and think they can sue ISP's into doing the legwork of their case for them a la RIAA and P2Pers. If the judges are indeed wrong and the US Supreme Court agrees with you then every poster here needs to worry about what they say in the hallowed halls of slashdot.org.
Heroscape, it's like legos combined with anachronistic wargames.
> ...will get you in trouble whether political or personal.
It makes a big difference, whether it is political or personal.
From the Electronic Privacy Information Center Archive (see http://www.epic.org/free_speech/default.html#anony mity for more info)
"Anonymity is a shield from the tyranny of the majority ... It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation--and their ideas from suppression--at the hand of an intolerant society."
In three cases, spanning from 1960 to 1999, the Supreme Court has reaffirmed the principle that sacrificing anonymity "might deter perfectly peaceful discussions of public matters of importance."
Anonymity--the ability to conceal one's identity while communicating--enables the expression of political ideas, participation in the government process, membership in political associations, and the practice of religious belief without fear of government intimidation or public retaliation.
Disclosure laws have been upheld only where there is a compelling government interest at stake, such as assuring the integrity of the election process by requiring campaign contribution disclosures.
If a reporter in a newspaper quotes an anonymous source and thereby commits libel, the newspaper can be sued. It seems to me the ISP is on a hiding to nothing here. If journalistic standards are applied, the owner of the website is surely a publisher not a carrier, and can be sued. If the website is the equivalent of a freely available notice board, then anybody pasting a libel on it should not expect to avoid being identified.
The initial posts seem to support the position of "Proud Citizen", but he appears to be a socially dysfunctional individual with a nasty mind. I do not see why he deserves any anonymity at all. If only so the Cahills can assert THEIR first amendment rights and say in public what they think of them.
The point is that in the US freedom of speech is protected and anonymity is not needed, whereas in China (why on Earth do we have anything to do with that scumbag government?) freedom of speech is banned and so everything should be done to protect the anonymity of legitimate critics of government.
Panurge has posted for the last time. Thanks for the positive moderations.
Q: "What is a politician without reputation? "
A: "Typical"
Defamation and slander are not terms that are applicable to opinions.
Apologies to the grandparent which was the parent to my former comment, the parent of this comment. I wasn't browsing the article low enough and mistook your comment for a comment to the great great grandparent and had not as yet browsed to the great grandparent. However the great grandparent is correct in some respects, just because a right is not enumerated doesn't mean it is not a right, however it can be restricted from the standpoint of how it interferes with the rights of others.
For all of you Slashdotters who have have historically ( I assume no links are needed between gentlemen here on this subject? ) assaulted the AC's posts merely because they were posted as AC let this article be a reminder that AC posting is a constitutional right that has been upheld by the Delaware Supreme Court. This is of course not to admonish you for justifiable assault on poor comments and err *cough* flamebait.
If the "ordinary joe" has an important piece of information that would discredit a public person, (s)he should go to the respectable Press who will investigate and publish if they and their lawyers think it justified. That's what they are for and why they have special rights. (And why it is wrong that Murdoch should be allowed to control so much of world media, but that's another issue.)
Panurge has posted for the last time. Thanks for the positive moderations.
You know there is a difference between "lawful" and "right", "unlawful" and "wrong" don't you? The judgeS were wrong.
Bad analogies are like waxing a monkey with a rainbow.
The comments he used are so vague, no lawyer would ever take this to court, because they would surely lose against any halfway-competant defence. Everyone has character flaws. Everyone over 30 could easily be shown to have some measure of "mental deterioration", all they would have to do is ask them some trivial fact about last year that they would not remember. As for "failed leadership", that is also open to interpertation.
In order to make a case for slander, the comments have top be false. There is absolutely no way you could prove or disprove that with these comments.
If they were only applicable to facts then they wouldn't exist in the first place.
Surely by definition they are only applicable to opinions.
You know there is a difference between "lawful" and "right", "unlawful" and "wrong" don't you? The judgeS were wrong.
The judges either applied the law correctly or else they did not. It is possible that the law could do with being amended but that does not mean that a judge correctly applying the law as it stands is "wrong". That's just gibberish.
To summarise the summary of the summary: people are a problem. ~ h2g2
A politician.
Censorship is telling a man he can't have a steak just because a baby can't chew it. --Mark Twain
How do you breath with all that sand up your nose?
The current crop of political bozos in Washington got there by using a whole arsenal of the tools you have just described, down to a telephone campaign in West Virginia that said that the main primary opposition candidate had a black baby out of wedlock, when in fact he had adopted a Bangladeshi child. Why were these folks not indicted, tried, convicted, sentenced, and imprisoned? What's good for the politicians isn't good for the people? You are a sad case, Sir.
"Is this Winkhorst a nova criminal?" "No just a technical sergeant wanted for interrogation."
Wow! Can I have you represent me next time I need to go to court?
"I'm sorry Your Honor, but you're just plain wrong, because I think you're wrong."
I'll turn into a supernova and burn up everything. Well I'll turn into a black little hole and you'll turn into string.
No, it's the difference between law and morality. It is wrong to hang homosexuals, but in Iran it's legal.
This is an example, it is only an example and not meant to construe equality between it and the current discussion.
And its shifting the goal posts as well. Even if the law is morally wrong, it does not necessarily follow that a judge upholding that law is morally wrong in doing so. One could, quite sensibly, argue that in most cases it is morally wrong for judges not to uphold laws that they think are immoral as judges are charged with upholding the law, not with judging morals.
and be that as it may, it isn't the judge's job to assert his/her moral authority and legislate from the bench. Their job is to interpet the law as is.
And the supreme court here, interpreted it as a protector of anonymity.
if the law is judged to be morally abhorent by the public in large, then congress is the institution we should be declaring as being in the right or the wrong, and as such should force them to change the law. Not the bench.
Never underestimate the power of stupid people in large groups.
I'm glad you're not in charge.
No. They apply to statements that are not true. Opinions are neither true nor false because they are not statements of fact. That's why they are called opinions. Slander, libel, and defamation apply to statements that are harmful to the persons reputation and factually wrong.
For instance, I could say "I think Elliot Frielle is a cheat and a liar" and that's personal opinion. If I state, "Elliot Frielle regularly cheats on his income tax and perjured himself in court last year by stating that his mistress was with him on the night she was accused of mass murder," I'd be libeling (or is that slandering?) him by stating it as fact. (I note now that I know no Elliot Frielle and a Google search yields no one by that name. Any resemblance to people living or dead is entirely coincidental)
It gets a bit murkier when you're making unsubstantiated general claims. Maybe I'm just mad at Elliot and I say, "Elliot Frielle is a bounder and a cad!" in a righteous snit over something or another. Am I actually stating that he's a bounder and a cad, that he has objectionable social behavior and disregards others' feelings? Or am I just using words to express my anger? Is this just my opinion on his character or am I stating that this has actually applied to incidents in his life?
In the end, hopefully common sense rules out in most of these cases. While words said in anger should be taken with a grain of salt, I hope that a person couldn't get away with slander and libel by just prefixing every statement with, "It's just my opinion that."
This sig has absolutely no significance and serves only to take up screen space and waste the time of the reader.
The bill of rights (which is part of the constitution) is clearly a list of restrictions. They all say " the right to . . . shall not be infringed" or "congress shall make no law restricting . . ." or something similar restricting the power of the government.
.). The ability of congress to make a law regulating something does not need to be specifically enumerated in the constitution.
Also, under the elastic clause the congress has the power to make any laws that are necessary to carry out the powers and purposes of the constitution, so the congress may have the ability of regulate speech, so long as it promotes the purpose of the constitution, and does not violate the first amendment (I don't think that's really possible, but if it were. .
We need to keep the USA in charge of the internet! If it was UN Controlled, the fight would have been a commitee in the UN deciding who has the right to say what... etc.. and I dare say, I DO NOT trust them to rule in the favor of US laws.
--- Relax, that mass muderer is just trying to reduce our carbon footprint, one fetus at a time...
I would contrast this with the duty of a juror. At least where I live, in most cases a juror has no choice but to serve and to make a decision. Under those circumstances, I claim that a juror must judge the law as well as the facts. I would not vote to convict someone for violating an unjust law. (That is a whole 'nuther topic.)
(*) Yes I know some people do not think that there is any such thing as an objective right and wrong. Ptuuii on them. ;-)
"Rub her feet." -- L.L.
To make you waste some more mod points, let me point out today that in the Guardian today is an article by Helen Steel and Dave Morris (The McLibel Two.) They stood up, on the record, for their beliefs. McDonalds had the most pyrrhic victory imaginable, and European courts decided that the trial was unfair because of the failure of the UK government to enable Steel and Morris to be adequately represented. The UK has much poorer protection of freedom of speech than the US, but the EU seems to have some judges with a clue or two.
Steel and Morris are heroes of dissent. And Proud Citizen has nothing to be proud of.
Panurge has posted for the last time. Thanks for the positive moderations.
FTFA: "We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously," FT First Amedment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." I'm failing to see where the 1st Amedment garuntees anyone the right of anonymous speech? These people are perfectly free to speak, but they should have no expectation of anonyminity. And heaven forbid they are held accountable for things they say. What this finding says is that you must now prove the defendants guilt before you can even find out who it is. -Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
When getting news off the internet your information isnt accurate... For "fair and balanced" news watch FOX, not vicious political sites like www.mediamatters.org which contain assassians to people like Bill O'Reilly.
where in the Constitution does it give us the right to speak annonymously? It doesn't and it shouldn't. The only way you can speak annonymously is to speak through others. You should have no expectation that the other person will not be compelled to reveal your identity.
That should be obvious from the fact that all this happened under the jurisdiction of the state of Delaware - it's not even a federal issue.
argumentum ad fallacium: Fallacy of defining a fallacy which allows one to dismiss the argument in question.
Is this situation of protecting anonymity counter to law? The goverenment of the US will physically protect your rights, such as privacy, but there is an extent to which they can protect your right to privacy. I can see it now:
"Yes officer, I was making methanphetamine, but I was doing it in the privacy of my home. You should protect my right to privacy!!"
Where should the line be drawn?
The Federalist Papers were published under a pseudonym.
When US law looks for examples of political speech to reason about, those are some of the strongest examples available.
In practical terms, without the option of speaking anonymously, some people in hostile communities wouldn't be able to speak freely.
My god.. some of the posts in this thread really seem to discount the value of anonymous free speech.
True, it is not a right given to you in ANY country.. but look how important it was to the
founding of the United States.
Ever hear of the Federalists Papers? Do they
teach that in school anymore?!
How about Phil Zimmerman's manifesto? or Ian Clarke's Freenet goals?
Wake up kids.. don't grow up to be a republican.
The concept of taxing labor wages I would imagine, would be about the biggest economic sin to the Founding Fathers.
Well no; since the first income tax was enacted in 1787(9?) and it was challenged and went to the Supreme Court, the court ruled (4 of the members of which were on the constitutional committee so its assumed they knew what it meant) that individual income falls under the excise tax, which the constitution allows the govt to levy.
When you work, you are trading your labor in exchange for money/goods/whatever; you are engaging in trade, and so your income is susceptible to excise/tarrif whatever you want to call it.
If businesses have no right to profit, then niether do individuals - youre creating a difference that isnt there. When you sell your labor in exchange for money, you are conducting business. If you have a right to work for more than room and board (thus making a profit), well so does everyone else.
That's funny!
argumentum ad fallacium: Fallacy of defining a fallacy which allows one to dismiss the argument in question.
While I dont completely agree with the line of reasoning of the GP, I do think he has a point in that in the abstract this does touch on the EU and UN wanting control of the root servers.
Americans are used to being free to do something unless there is a law prohibiting it, while the vast majority in the rest of the world are used to being free to do something once a law has been passed allowing it.
Our constitution is a document which defines the limitations of the authority of govt without enumerating rights, while the UN Declaration on Human Rights and most other constitutions pretty much just enumerate rights and dont really address the limitations of govt authority.
Its like the difference between setting your firewall to allow all, then constantly updating the list of IPs you wont allow vs. setting it to deny all and selectively adding to a list of trusted IPs (the firewall in this case being an individual, the IPs being limitations on individual rights).
So yes, in the abstract, its issues like this that are ~exactly~ the reason why the thought of turning control over to the UN and/or EU is stomach turning.
There is a priciple in law that has been upheld by the supreme court that says that a jury can refuse to convict on the basis that the law is unconstitutional. I'm not sure about "morally wrong" when there is not a constitutional question, but the case that it goes back to was from the colonial period where a person was being tried for distributing seditious pamphlets (against the king) and the jury refused to convict because they thought the law was morally wrong.
Avoid Missing Ball for High Score
Is this real or some cruel joke? Its rare to hear a ruling on rights that makes sence these days. Tuis is one of those occasions..
Give that judge a twinkee!
---- Booth was a patriot ----
Justice Marshall, I must have missed the day at law school where they taught us we had the right under the Constitution to do anything not expressly prohibbited. This so called freedom to speak annonymously is a logical fallacy; the question is whether an intermediary can choose not to disclose one's identity. Generally speaking, they cannot, but the Courts can compell it. Nothing in the Constitution protects you from that.
... will be fired any moment now. Doesn't he know free speech helps terrorists!
If Google really cared they would fix Android Chrome to reflow text, instead of discriminating
You do realize that the precedent in US case law is that the bar for "slander" is much higher for politicians than for regular people? It's almost impossible to slander a politician, and its intentionally that way.
A deep unwavering belief is a sure sign you're missing something...
I hate when I hear people say, "I don't see that in the constitution so it must not be a right"
Whe the Bill of Rights was being debated, many thought it was a bad idea to list rights as no list they could think of would ever be a comprehensive list of a persons inherent and unalienable rights. Unfortunately to get the Constitution ratified it was necessary to include a Bill of Rights, so the Founding Fathers came up with the 9th Amendment, a way to say that these Amendments were in now way the complet list of your protected rights.
Today it seems most people have forgotten this.
Sorry, teleporters just kill you and then make a copy. A perfect, soul-less copy.
I don't even disagree with the court's decision here, but their reasoning -- appealing to the 1st Ammendment -- seems wrong.
In Soviet Washington the swamp drains you.
Ya, but distributing seditious pamphlets against the king is American, patriotic, and good, but distributing seditious pamphlets against the Bush is communist, pinko, gay, and will get you spirited away by the secret police who never have to charge you, and tortured until you confess.
See the difference?
The King = bad, disobey
The Bush = good, obey in all circumstances no matter what
No harshing the chill, man.
No, then the LAW was wrong, if you believe that.
Unless you would care to offer any cogent legal arguement as to why they misused existing legal precident?