Re: 5/26/00 - Overview of the Anonymous Speech Case
Overview of the
Anonymous Speech Case
"It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail. The pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive." -- Red Lion Broadcasting Co. v. FCC (United States Supreme Court 1969).
"Surfing the Internet" has rapidly become a favorite activity of many Americans. As more people continue to browse the World Wide Web, expressing their personal views and opinions on-line, many of the same questions surrounding the limits on freedom of speech and privacy rights which have been applied to other media are now beginning to occur with regard to cyberspace. More significantly, as technology advances at warp speed, so too must the law in order to protec freedom of speech and expression and keep pace with the many legal predicaments now arising on the Internet.
In contrast to mass media outlets such as television or radio, the Internet provides ordinary citizens with low-cost access to a form of communication which can literally reach millions of people around the globe in an instant. On the Internet, any person can can speak directly to an audience that is much larger and more diverse than any congregation our founding fathers could have ever envisioned when drafting the Constitution. Not only does the Internet foster open debate on a wide variety of issues on all aspects of politics to religion, but the fact that many on-line "speakers" identify themselves by "screen name" alone forces the listening audience to evaluate a speaker's ideas based solely on content. Furthermore, because the United States Supreme Court has continually protected and affirmed a constitutional right to speak anonymously, a heightened level of protection must be afforded to anonymous speech on the Internet.
One way the Internet provides a variety of contextual discussions is via different types of content-based "bulletin boards." Many bulletin boards discuss politics, religion or broad financial and business issues, and some boards are even devoted to the discussion of one particular company. Yahoo! Inc., for example, maintains a multitude of different bulletin boards on its Internet website, including many message boards about publicly held companies in the United States?such as Hvide Marine. The discussion on these boards often centers around factual information relating to the company and its management, and additional topics of discussion also frequently include speculation about a company's stock performance, as well as little-known trivia relating to the company.
Anyone who has access to the Internet may enter these bulletin boards, read the messages that have been posted there, and post a message of his or her own. Most bulletin boards, whether appearing on Yahoo!'s website or the hundreds of thousands of others available on the Web, utilize a standard operating procedure: Prior to being granted permission to post a message on a particular board, individual "speakers" are required to select a "screen name" by which that individual's messages will be identified. Then, each message that is posted on a board identifies the person "speaking" by the self-given screen name. Therefore, anyone entering an Internet bulletin board on Yahoo!, or elsewhere on the Web, can identify themselves by any name that one could possibly create or imagine. However, people who post messages on Internet bulletin boards under the cover of a self-designated screen name are not necessarily protected from having their true identity revealed?regardless of whether they would prefer to remain completely anonymous. This is because Internet Service Providers (ISPs) such as America Online (AOL), and web-companies such as Yahoo!, possess the technological capability to track "anonymous" postings back to some identifying characteristic such as one's name or e-mail address?even if this information was never personally disclosed in the course of registering for or logging into the board. Consequently, determining the true identity of someone who has "covertly" posted a message on an Internet bulletin board is in reality not as difficult as a typical "web surfer" may first believe.
Hvide v. Does 1-8 is a case alleging that defamatory messages about Hvide Marine's President and Chief Executive Officer were posted on a bulletin board similar to those described above. It is not specifically known whether the messages were posted on a Yahoo! board or some other board. The lawsuit was filed in September 1999 in Miami-Dade County Court against a number of unidentified individuals (John Does). In the lawsuit, Eric Hvide [pronounced vee-dah] alleges that John Does 1-8, and three individuals identified by their "screen names" only, posted numerous false and defamatory statements about him, including statements indicating that Hvide was unfit to work at his place of business. Mr. Hvide contends in his suit that while he does not know the actual identities of the people who posted the allegedly defamatory messages about him, these messages have caused him legally actionable harm?in part that he was fired as a result of the allegedly false postings?and he is now seeking compensatory and punitive damages.
After filing his complaint, Mr. Hvide served a number of subpoenas directed to Yahoo! and AOL which sought information from these companies pertaining to the true identities of a number of different "screen names," including the screen name "justthefactsjack." Soon thereafter, a person who alleges that he used the screen name "justthefactsjack" filed a motion to have the subpoena pertaining to him vacated. Both Yahoo! and AOL chose not to turn over any of the information sought in the subpoenas pending the outcome of this motion. It is not known whether any of the people who allegedly used the screen names listed in the various subpoenas, other than "justthefactsjack," ever received notice or were aware of those subpoenas.
Because of the unique and novel issues of law presented by suits for defamation against anonymous Internet posters, the ACLU has now filed an amicus brief in the Hvide case. In the brief, the ACLU urges the court to closely weigh the interest in protecting citizens from defamatory communications on the Internet against the defendants' First Amendment right to speak anonymously. The ACLU maintains that the unique features of the Internet indicate that defamation law should be applied cautiously to Internet communications because the mere threat of being held liable for defamation may seriously discourage or chill Internet users from engaging in the type of candid discussions which make the Internet such a valuable forum to begin with.
The ACLU's brief contends that Mr. Hvide's complaint is so deficient as to require the court to reject any attempt to breach the anonymity of the Internet posters. The brief further maintains that, should a facially sufficient Complaint be filed, the court would be best served to undertake certain procedural measures in order to protect the defendants' rights. First, to protect the defendants' rights to procedural due process, the ACLU maintains that the court should refuse to enforce any subpoena that would reveal the defendants' identities until each defendant has received notice of the complaint and the subpoena. Second, the ACLU argues that the court should structure the procedure of the case so as to balance the plaintiff's right to proceed with his lawsuit against the defendants' right to communicate in an anonymous manner. Finally, the ACLU proposes that the court require the plaintiff to prove actual, financial damages as a result of the allegedly defamatory statements about Mr. Hvide before breaching the defendants' right to anonymity.
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