Re: 5/26/00 - Legal Issues in the Anonymous Speech Case
Legal Issues in the
Anonymous Speech Case
In its amicus brief to the Circuit Court of the 11th Judicial Circuit (Miami-Dade County), the ACLU seeks to address important issues raised by defamation cases, such as this one, brought against people who have anonymously posted information on the Internet. Because the ACLU maintains a strong interest in defending citizens' fundamental civil liberties from unconstitutional and unwarranted governmental intrusion, the ACLU asserts here that the Court must carefully accommodate both the state's interest in protecting citizens from defamatory communications on the Internet and the Defendants' First Amendment rights to speak anonymously. While it is widely acknowledged that the First Amendment protects anonymous speech in various contexts throughout society, the ACLU maintains that anonymous speech on the Internet deserves similar protection. Therefore, it is the ACLU's position that the plaintiff's subpoenas in this case should not be enforced because the First Amendment protects the defendants' right to anonymously post factual information about a public company on the Internet.
Freedom of Speech
The First Amendment protects anonymous speech in both literary and political contexts. Many famous literary figures including Mark Twain and Benjamin Franklin wrote under the cover of a pseudonym. As the United States Supreme Court has noted, groups of Americans (including the author of the Federalist Papers) throughout history who have been persecuted have only been able to criticize oppressive practices and laws either anonymously or not at all. Additionally, as the High Court has explained, an author's decision to remain anonymous is a critical aspect of the freedom of speech protected by the First Amendment.
Recognizing the value of anonymity on the Internet, several federal district courts throughout the country, and at least one federal circuit court of appeal, have found that state laws that attempt to prohibit anonymous and pseudonymous communications over the Internet violate the free speech protections of the First Amendment. Furthermore, because the Internet serves to transform the First Amendment "marketplace of ideas" from ideal to reality, many legal scholars have joined the ACLU in advocating for protection of anonymity on the Internet. Because Internet bulletin boards provide an opportunity for those who disagree with a particular message to immediately post a responsive message either disagreeing with or correcting the prior message, a fundamental aspect of the free speech principle is inherent in using the Internet. Simply put, the best answer to speech with which we disagree is more speech.
The plaintiff in this case, for example, could have easily gone onto the bulletin board where the allegedly false statements were originally posted and simply responded by correcting what he believed to be inaccurate information. The ACLU maintains that the existence of this "self-help remedy" suggests that courts must exercise caution in evaluating a plaintiff's allegations that a defamatory posting caused him harm because unlike other mediums of communication, the Internet provides an immediate right to reply to any potentially defamatory statement. Thus, the ACLU asserts that if speakers were to face liability for casual remarks made on Internet bulletin boards, they are likely to refrain from speaking entirely or to avoid any speech that might risk liability. In short, the possibility of chilling vigorous public discussion on the Internet by virtue of hasty court action could quickly become reality.
Procedural Due Process
One of the most elementary principles of procedural due process is the right to notice and the opportunity to be heard. Here, there is no evidence that any of the Internet posters named in Mr. Hvide's complaint and in the subpoenas to Yahoo! and AOL, other than "justthefactsjack," ever received notice of the lawsuit or the subpoenas. If these posters receive no notice, and either Yahoo! or AOL choose to fully comply with the subpoenas, then the posters will have no opportunity whatsoever to object to the disclosure of their identities. This lack of notice would not only implicate the defendants' procedural due process rights, but it would irrevocably violate their First Amendment rights to communicate anonymously on the Web.
Defamation
Defamation, generally, is the publication of anything injurious to the reputation of another. Defamation which is designed to be read is characterized as libel, while "oral defamation" is commonly called slander. Here, Mr. Hvide alleges that the certain unidentified individuals defamed him by posting false statements about him on the Internet, and he contends that the posting of this information has caused him actual harm.
There are numerous defenses to claims of defamation, including that the defendants' statements are constitutionally privileged statements of opinion. Opinion, in its ordinary sense, refers to statements which are made using loose language or which represent purely subjective expressions of a particular individual's point of view. Courts have frequently found speculative statements similar to those alleged to have been made by the defendant-posters here to fall into the category of protected opinion. It is the ACLU's position that the content and tone of the statements made in this case strongly indicate that they are constitutionally protected. The ACLU has therefore requested that the court resolve any potential defenses the defendants may have to Mr. Hvide's defamation claims before ordering the disclosure of the defendants' identities, should the court find it necessary to address the substance of the plaintiff's claims.
Jurisdictional Concerns
Jurisdiction refers to the legal concept of a particular court's power to properly hear and determine a case. In order for a court to have jurisdiction over a specific case, certain conditions must be satisfied. For example, if a lawsuit is filed in Miami-Dade County Court, as Mr. Hvide's was, there must be some central connection between the events or parties in the lawsuit and events in Miami-Dade County, Florida. If, for example, the events giving rise to the lawsuit occurred in Miami-Dade County, then jurisdiction in a Miami-Dade County Court would be appropriate. Here, however, Mr. Hvide's complaint does not even allege that the defamatory statements, if actually defamatory in nature, were posted by someone in Miami-Dade County, nor does it allege that either Mr. Hvide or any of the defendants reside in Miami-Dade County. Rather, the only apparent basis for jurisdiction in Miami-Dade County seems to be that the Internet bulletin board on which the allegedly defamatory messages were posted is accessible in Miami-Dade County, Florida (along with every other county in the nation's 50 states). The ACLU maintains that the mere posting of information on the Internet, which is accessible globally, is insufficient to establish personal jurisdiction over a defendant. Therefore, the ACLU contends that because the Miami-Dade County Court in which Mr. Hvide's lawsuit was filed is without authority to even hear, let alone decide, his case, and the ACLU on that base urges the court to dismiss the action altogether.
Privacy Interests
In order to have a privacy interest which is protected by the Constitution, an individual must possess some sort of legally recognized expectation of privacy. For example, when someone uses a private phone, or enters a public phone booth but closes the booth's door in order to engage in a private conversation with the individual on the other end of the line, it is widely recognized that such an individual has a valid expectation of privacy protected by the Constitution. In this case, the plaintiff has argued that the defendants have no legitimate expectation of privacy in their identities by virtue of Yahoo!'s "Terms of Service Agreement" (which states that Yahoo! may disclose any information necessary to identify persons who post defamatory comments). The ACLU contends that the plaintiff's position mistakenly assumes that the postings are in fact false and defamatory, which has in no way been established or proven at this point. Secondly, the ACLU argues that the key determination in this regard is whether governmental processes, like the subpoenas at issue here, can be used to hurdle the defendants' right to speak anonymously without any notice or opportunity to be heard, and not whether Internet posters have a legitimate expectation that Yahoo! will protect their identities. Therefore, as noted above, because adequate notice has not been given to the defendants, the ACLU maintains that the subpoenas should not be enforced.
ACLU of Florida 3000 Biscayne Blvd. Suite 215
Miami, FL 33137 (305) 576-2336
General ACLU e-mail: aclufl@aclufl.org
Do not send e-mail about cases to the general ACLU e-mail.
aclufl.org |
