Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“The whole principle [of censorship] is wrong. It's like demanding that grown men live on skim milk because the baby can't have steak.”     Robert A. Heinlein,    The Man Who Sold the Moon

December 9, 2008

Free Speech Or Slander ?

by Doug Mataconis

A case in Maryland is requiring that state’s highest Court to find the line between freedom of speech and business disparagement:

In a First Amendment case with implications for everything from neighborhood e-mail lists to national newspapers, an Eastern Shore businessman argued to Maryland’s highest court yesterday that the host of an online forum should be forced to reveal the identities of people who posted allegedly defamatory comments.

It is the first time the Maryland Court of Appeals has confronted the question of online anonymity, an issue that has surfaced in state and federal courts over the past few years as blogs and other online forums have increasingly become part of the national discourse.

The businessman, Zebulon J. Brodie, contends that he was defamed by comments about his shop, a Dunkin’ Donuts in Centreville, posted on NewsZap.com. The shop was described as one “of the most dirty and unsanitary-looking food-service places I have seen.”

The comment was posted in a 2006 exchange among anonymous posters named CorsicaRiver, RockyRacoonMd and others. Brodie is not certain which poster is responsible for that and other remarks that he claims were defamatory, and he has only their screen names. Brodie is demanding that Independent Newspapers Inc., the company that owns the site, divulge the identities of his critics.

A Circuit Court judge in Queen Anne’s County ordered the company to hand over the information. The company appealed, setting up yesterday’s argument in Annapolis.

(…)

A number of state courts have heard similar cases, and Levy urged the Maryland judges to follow the lead of New Jersey, where in 2001 an appeals court crafted a standard for cases involving subpoenas to identify anonymous Internet speakers. The court required plaintiffs to produce “sufficient evidence” of their cause of action and mandated that judges balance First Amendment rights against the strength of the plaintiffs’ case and the need for identities to be disclosed.

But Poltrack argued that the circuit judge, Thomas G. Ross, conducted a balancing test of his own and concluded that Independent Newspapers was obligated to identify the users sought by Brodie.

Poltrack said that requiring plaintiffs to provide evidence at such an early stage was unfair. “It’s a tremendous and onerous burden,” he told the judges.

It may well be, but the bias should always been in favor of freedom of speech, and anonymity is an important part of the right to speak freely.

In this case, it seems very unclear that an anonymous post that the Plaintiff’s store was “dirty and unsanitary-looking” would not seem to rise to the level necessary for a Plaintiff to be able to pierce the veil of anonymity. At most, it’s an expression of opinion.

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4 Comments

  1. Yet another judge with his head up a horse’s ass, IMO. As a forum/blog admin, what could I provide? An IP address and email address, if the person registered. It would be impossible for us to demand and force users to provide full names and other identifying information.

    If forum/blog admins were forced to obtain this info, most would be forced to shut down. That would eliminate our right to life, liberty and the pursuit of happiness, not to freedom of speech.

    Comment by drivelocity — December 9, 2008 @ 5:52 pm
  2. The burden of proof is on the prosecution.

    How is providing proof at the onset “a tremendous and onerous burden”?

    The RIAA lawsuits are starting to get thrown out without sufficient proof of infringement. I think the benchmark for requiring proof has already been established.

    Comment by Paul — December 10, 2008 @ 12:40 am
  3. That would eliminate our right to life, liberty and the pursuit of happiness, not to freedom of speech.

    You know, my grandfather never experienced the internet, dying as he did in the 1980′s. Yet, he was able to pursue happiness.

    I think you are being a little hyperbolic.

    BTW, publications on the internet probably are more accurately classified as falling under the freedom of the press which means not government licensed journalists but rather the right of people to own and operate printing presses.

    Comment by tarran — December 10, 2008 @ 5:32 am
  4. The “pursuit of happiness” refers to our right to have a lawful business or vocation. If I could not obtain personal information as a forum/blog owner, and could not run my business, the government would be interfering with an inalienable right.

    Comment by drivelocity — December 17, 2008 @ 1:37 pm

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