Anonymous Commenters On Trial

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By Trace Sharp

The issue of anonymous commenters on news web sites has hit the courtroom in Knoxville. The issue has brought up a lot of discussion on and off line about the right to remain anonymous.

Katie Allison Granju and I agree on this subject.

The online comments on media web sites – including the anonymous ones –  are simply another form of public conversation. They are no different from the conversations taking place each day at the local diner, and on talk radio, and between street preachers and the passersby who engage in loud, public arguments with them. The only difference is that in this case, the defense attorneys for these notorious suspects happen to have heard the conversation taking place in two particular online spaces. However, if the attorneys don’t understand that the same sorts of public conversations regarding them and their clients are also taking place in all kinds of other physical and virtual locations – from church pulpits to Twitter to online message boards unaffiliated with a newspaper or TV station – then they are simply deluding themselves.

I have a right to express myself publicly – in writing or verbally – unless I step into one of the very narrow legal limitations on free speech (libel, slander, conspiracy to commit a crime, etc). And I have no obligation to identify myself before speaking up. Where I say what I have to say is not a factor in whether I get to say it. I can loudly bloviate about it while sitting at the bar at my favorite pub. I can publish my views on the case on my anonymous blog. I can post it under my “handle” on Twitter or a local message board. I can call Rush Limbaugh and say it over the airwaves, or I can write it on a banner and hang it on the front of my house. I can also post it in the comments on my local newspaper website. The platform is not a factor in whether what I say is constitutionally protected or not.

She’s right. Love or hate what someone is saying, they have the right to say what they want to say.

A deeper element to this issue, of course, is now the court system is getting involved in online communities and how this will play out. The case in point is connected to a terrible murder in 2007. The defense attorney are arguing that their client won’t have a fair trial as he has already been demonized in comments.

I call foul on this one but the case is not surprising that the judicial system has been asked to get involved. This is what defense attorneys do, plain and simple.

Let’s head to the First Amendment Center to see what the Supreme Court has to say about anonymous comments.

Unmasking anonymous bloggers
The Supreme Court has made clear that anonymous speech deserves First Amendment protection. In Talley v. California, the Court wrote: “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.” Several Founding Fathers published historic political articles anonymously. James Madison, John Jay and Alexander Hamilton wrote the 85 essays in The Federalist Papers under the pen name “Publius.”

Individuals who post messages anonymously, criticizing companies, bosses, public officials and others, often make valid criticisms. Other times their speech could contain damaging false statements of fact that cross the line into defamation. Online libel remains a risk for those who blog, as it does for any writer or reporter in any medium.

The question becomes, how does the legal system protect the First Amendment-based right to anonymous speech while still affording a remedy to individuals whose reputations have been trashed unfairly online?

This story isn’t going to go away. Blogging and online news is still relatively new and at times misunderstood. I do believe that anonymous commenters serve a purpose in escalating the conversation.

I may not always like what they have to say, but I will defend their right to say it. If anyone is online at this period of time, they really need to be following what is going on regarding their rights in the judicial process because it just might effect all of us in the long term.

As Michael Silence noted: This is a defense attorney’s ploy. Let’s hope it doesn’t blow up in the face of free speech.

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  1. Frank S. said February 28, 2009 | Permalink

    I’m totally against suppressing anonymous comments on newspaper websites.

    But I still think they’re the internet equivalent of a cesspool and I stopped swimming in the muck long ago.

  2. Trace Sharp said February 28, 2009 | Permalink

    Frank, I don’t engage either. You and I are on the same page on that one. But I defend other people’s right to remain anonymous if they choose to.
    I think it’s always daunting when the courts get involved.

  3. Anonymous said February 28, 2009 | Permalink

    anonymous = cesspool = muck ?
    Tough words from someone who won’t display his last name.

  4. Scott Adcox said February 28, 2009 | Permalink

    Hmm…I don’t think someone leaving their first name, a link to a website, and a valid email address on a comment really qualifies as “anonymous”.

    Even if Frank had left no name and an invalid email address, comments can easily be traced by their source IP, so if someone isn’t smart or careful enough to cover their tracks it’s not hard to figure out who left the comment if they’ve commented before.

    Sometimes you can just tell by the tone of the message. 😛

  5. Frank S. said February 28, 2009 | Permalink

    “Anonymous” called me anonymous?

    That’s rich.

  6. Dave Barnes said February 28, 2009 | Permalink


    What part of sarcasm did you fail to note in my earlier comment?


  7. Frank S. said February 28, 2009 | Permalink

    Obviously all of it.

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  1. lacyswife (Denese) on February 28, 2009

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