This judge’s ruling has implications for all of us who post comments online, and will have a chilling effect on free speech.
Thomas Clouse reports for The Spokesman-Review, July 10, 2012, that an Idaho judge ruled that the Spokesman-Review (S-R) must provide information that could identify an anonymous reader who typed a disparaging online comment about Tina Jacobson, the chairwoman of the Kootenai County Republican Party.
The attorney for Jacobson had subpoenaed information about the identities of three Huckleberries Online readers who commented under assumed names.
Under the name “almostinnocentbystander,” one commenter questioned whether $10,000 reportedly missing from the Kootenai County Central Committee might be “stuffed inside Tina’s blouse.” Two other commenters, “Phaedrus” and “outofstatetater,” then responded to the first commenter with disparaging comments about Jacobson.
The comments were deleted from Huckleberries Online after S-R blogger Dave Oliveria discovered them, but the first post was visible for about 2½ hours.
In late April, Jacobson filed a lawsuit against “John and/or Jane Doe.” Her attorney, C. Matthew Andersen, subpoenaed the names of the commenters so the suit could proceed, and the newspaper responded with a motion to quash that request.
In a hearing last month, Jacobson’s attorney argued that his client’s reputation was hurt by the posts and sought to have the judge order the newspaper to provide identifying information about the people who made the comments.
The newspaper’s attorney, Duane Swinton, argued at the June hearing that the blouse comment “wasn’t nice” but that it was made on a blog site “where people express opinions, sometimes airing outrageous views.”
In his written decision, Judge John Luster pointed out that the U.S. Supreme Court has ruled since 1942 that the First Amendment does not protect defamatory speech. Luster wrote in his decision, “while the individuals are entitled to the right of anonymous free speech, this right is clearly limited when abused.” He ordered the newspaper to give to the plaintiff “any document establishing the identity, e-mail address, and IP (Internet Protocol) addresses of ‘almostinnocentbystander.’”
However, Luster also ruled that the paper would not have to provide similar information for the two readers who commented on the original post, saying they did not abuse their rights to free speech “by making defamatory comments.”
In his ruling, Luster noted that Idaho, unlike many states, has no “shield law” protecting reporters. However, that doesn’t matter because the longtime journalist who oversees the Huckleberries Online blog, Oliveria, wasn’t acting as a reporter, but rather as a “facilitator of commentary and administrator of the blog.” The judge wrote, “it is clear that Mr. Oliveria acted as an administrator of the blog when he removed the subject postings” and there is no indication that the information was intended to be used in a news story or editorial opinion piece.
Andersen, Jacobson’s attorney, said he was pleased by Luster’s ruling. “The ruling is a reaffirmation of the historically long-standing legal rule that there is no constitutional protection for a defaming statement,” Andersen said. “The interesting twist in this is the application of that legal rule to an anonymous Internet commenter. That is the part that is refreshing.”
Gary Graham, editor of The Spokesman-Review, said he was disappointed with Luster’s decision but he has not yet decided whether the newspaper will pursue an appeal.