Free speech or cyber-slander?

Chatters claim First Amendment right to anonymity on online bulletin boards

By Ross Kerber, Globe Staff, 2/29/2000


Cyberspace has become less anonymous as companies use libel suits to find and unmask their online critics, but now some cyber-chatters are fighting back.

The chatters claim a First Amendment right to post messages on electronic bulletin boards using pseudonyms. They have scored some success in challenging attempts to pry loose their identities from Internet service providers.

The legal battle may alter the balance of power on the Web as chatters try to extend a tradition, dating back to the Federalist Papers of 1787, which respects unsigned opinions.

Yet never before has anonymity applied to an arena as broad as the Internet, where commercial interests are swamping the network's libertarian roots.

In the past year, public figures and companies such as Raytheon Co. and Stone & Webster Inc. have gone to court to clamp down on bulletin boards featuring detailed talk about their conduct, chat they allege often veers beyond opinion into libel, slander, or the disclosure of inside information. The suits also are embarrassing for Internet companies such as Yahoo Inc. and America Online, which advertise themselves as forums for free speech.

Now legal experts think a series of ongoing lawsuits may create some guidance for how much anonymity users really should expect when using fictitious screen names.

One of the broadest cases is pending in a Florida state court, where a former shipping executive wants to know who wrote certain e-mails that he says cost him his job.

Some of the authors deny wrongdoing and say they have the right to speak their minds on public message boards.

''This is a test of the capacity of ordinary people to make full use of the Internet,'' said Lyrissa Lidsky, a University of Florida law school professor who helped write a friend-of-the-court brief filed in the case by the American Civil Liberties Union.

Too many claims of online libel are really just attempts to squelch dissent, says the ACLU, which suggests courts should postpone discovery motions in these cases unless plaintiffs can prove that messages actually were defamatory or malicious.

But the plaintiff's attorneys, Bruce Fischman and David Harris, say such changes would make it too hard to win.

''I think if you go into court, you're entitled to know who you're suing,'' Fischman said. ''It goes to your strategy and it goes to whether you think you'll be able to settle.'' Only those who post irresponsible or malicious comments on the Web should fear having their names revealed, he said, a position he feels is in keeping with the First Amendment.

A hearing on the case is scheduled for May, and the outcome could have a deep impact on the tone of chat online, said Fred Schauer, a First Amendment specialist at Harvard.

If it becomes easier for plaintiffs to learn online users' identities, Schauer said, e-mail writers might take more care in their statements. But overall Internet use also could decline if users fear their off-the-cuff statements could come back to haunt them.

''This is a policy decision,'' Schauer said. ''We have to figure out how to balance the volume [of words carried on the Internet] with its potential to transmit a lot of very specific information, some of which may not be true.''

The Florida case was brought by Erik Hvide, former chief executive of Hvide Marine Inc. He sued eight anonymous chatters after leaving the top job last summer for what the company at the time described as ''personal reasons.'' The company later declared bankruptcy.

But in a Feb. 18 court filing, Hvide says he was fired because of ''malicious and intolerable defamatory statements'' made on a Yahoo message board by a group of chatters known only by screen names such as ''justthefactsjack'' and ''THE 1 Quiz.''

His complaint cites messages like one written by somebody known as ''THE 1 Quiz,'' who wrote that if the company kept Erik Hvide employed, the ''directors are or could be at the minimum exposing themselves to being Guilty of Negligence, Failure to supervise, malfeasance and a Total Disregard for the Shareholder.'' Such comments unfairly ''imputed a crime or moral delinquency,'' states Hvide's complaint.

Hvide wants unspecified damages from the chatters and seeks to learn their real identities from Internet service companies, demands with which the companies have routinely complied in the past. But this time, Yahoo and America Online are holding off pending the outcome of motions to quash the subpoenas by several of the John Does.

The motions were filed by Fort Lauderdale attorney Christopher Leigh, who argues the chat was well within bounds for a publicly traded company and its top executive. ''This Court should not permit the judicial branch to become a clearinghouse for lawsuits filed only with the most frivolous pretense'' in order to expose critics, Leigh wrote in a filing.

In the past, courts rarely have allowed defendants to remain anonymous except in cases involving minors or sexual abuse. But courts also have recognized certain forms of anonymous speech.

The ACLU cites a 1995 decision in which the US Supreme Court ruled unconstitutional an Ohio law that prohibited anonymous literature in political campaigns. ''Under our constitution, anonymous pamphleteering is not a pernicious, fraudulent practice but an honorable tradition of advocacy and dissent,'' wrote a majority of justices. They noted cases throughout American history when people have felt threatened for speaking the truth, and have omitted their names from publications.

''Anonymity is a shield from the tyranny of the majority,'' the court wrote.

Some say that means citizens should have broad latitude to post anonymous comments on the Internet as well. ''Having the freedom to be wrong, in a public place, is important and should be encouraged,'' said Megan Gray, a Los Angeles lawyer specializing in Internet issues.

A similar argument has found traction in Pittsburgh, where a person known as ''grantst99,'' presumably after the city's Grant Street, so far has blocked a subpoena sought by a judge, Joan Melvin, as part of a defamation suit. Melvin, a Pennsylvania Superior Court judge, alleges a Web site maintained by the defendant included the false charge she lobbied on behalf of another judicial appointee, an act that could violate state ethics codes.

Vic Walczak, grantst99's lawyer, said the charge is accurate and that Melvin should have to prove otherwise before obtaining the writer's identity. ''Initially, the court has an obligation to apply some scrutiny to ensure that it's not just a frivolous case designed to out the Webmaster,'' Walczak said.

Yet Walczak and his allies may face an uphill battle. In Columbus, Ohio, a judge this month ruled against a person who tried to block a subpoena issued by Stone & Webster Inc. to track down one of the people it says defamed the company or disclosed inside information. (The action stems from a lawsuit Stone & Webster brought in Boston's Suffolk Superior Court last year, which remains pending.) One of these people, a CompuServe user, argued he had a right to remain nameless, though it isn't clear exactly which disputed messages this person authored.

But on Feb. 7, Judge Alvin C. Travis denied the motion because the user had ''no reasonable expectation of privacy'' under agreements with CompuServe, which has since identified the user to Stone & Webster. The chatter does not appear to be an employee of Stone & Webster, said its attorney, William Zucker, who adds the company has not decided whether to seek damages.

The suit was still worthwhile, Zucker said, in part because it seems to have discouraged the further disclosure of sensitive materials online. ''Companies, even when they're undergoing times of stress, have an obligation to protect'' confidential material, Zucker said. ''This isn't a vendetta.''


This story ran on page C1 of the Boston Globe on 2/29/2000.
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