The upshot of this case is that courts tend to take First Amendment protection of anonymous speech pretty seriously. The question here was not necessarily whether the anonymous writer was a “professional” or “just a blogger,” but whether or not the plaintiffs had any hope of winning a defamation claim if the writer’s identity was revealed. And since the post in question was made up entirely of opinions, not statements of fact, then they probably wouldn’t be able to prove whether the statements were true or false.
“Anonymous speech has always had a special protection under the First Amendment, and therefore the plaintiff has to show they’ve got a concrete claim, that’s going to stand up, before the courts will give them access to the identity of the speaker,” says Sandra Baron, executive director of the Media Law Resource Center. “So in that regard, since it’s a lot harder to be an anonymous speaker in The New York Times than it is in a blog post, arguably, the online speakers who choose to be anonymous have greater protection.”
But, she adds, anonymity does not immunize a writer, either. And just how concrete a claim the plaintiff has to prove before the judge will agree to break that anonymity varies from state to state, jurisdiction to jurisdiction. “Some people think they can never be found out, and that’s often not the case,” says Baron. “The online space is not a law-free environment.”
The case before the Texas Supreme Court, like Shuler’s case, involves a “takedown” order for an online publication. In an online post of JD Journal, a legal publication, Andrew Harrison Barnes had accused an Austin attorney, Robert Kinney, of bribery. Kinney sued Barnes for defamation and asked the court for an injunction to make Barnes take down the post, which Kinney said was false. The judge in the original trial ruled in favor of Barnes, saying that even if it was false, a permanent injunction was too broad, and would deny Barnes’ First Amendment rights. After several appeals, the case has now made its way to the Texas Supreme Court, where Kinney is arguing that the state’s defamation laws are outdated.
As the Texas Tribune reported from a January 9 hearing, Kinney’s attorney argued that “the internet has created new forms of speech and that the case calls for the re-examination of Texas common law,” because when defamation can be proven, the offending post should have to be unpublished from the Web. Barnes’ attorney argued that this followed the “slippery slope” line of logic, “that if the court ruled that the remarks be removed, it could create a precedent of ‘prior restraint’ on speech.” There are predictions that this case could go all the way to the US Supreme Court.
Plaintiffs in defamation cases, obviously, often want the judge to include takedown orders in the damages they’re awarded if they win; they also often want to try to ensure that the offenders won’t strike again with more lies in the future. But judges are always very careful about these types of injunctions, which can easily become too broad. As a result, Hermes and Baron agree, takedown orders are relatively rare.
“But I’m not sure we won’t see more [takedown orders], particularly depending on which way some of these early cases go, like this one in Texas,” says Baron. “There’s a lot of room for legal growth in this area.”
She adds that it almost surprises sometimes her how little litigation like this there actually has been in the court system, considering how much speech there is out there on the internet. “When you think about the sort of ethos of free speech we have in this country, that allows so much to go up online, without intervention,” she says, “it’s pretty astonishing.”
Regardless, it can’t hurt to be prepared. If you write online—whatever you call yourself—it’s good to know your rights. Guides written by the Electronic Frontier Foundation and the Reporters Committee for Freedom of the Press are both a great place to start.