A court case could squash the rights of those who wish to remain anonymous.
Add this to your list of squishy social-science conundrums: Do you have a right to yell "fraud" in a crowded chat room? A court in South Florida might have an answer to that question after hearing a defamation case filed by former marine executive Eric Hvide against an undetermined number of online chat room participants. First, however, the court must identify the defendants.
Hvide (pronounced v-day) was CEO, president, and chairman of the board of Hvide Marine, the family business. He was fired last summer and in February slapped a defamation suit on unknown parties who, on a Yahoo! discussion board in the months before he was fired, called into question Hvide's management abilities. Commentary ranged from simple name-calling to veiled accusations of illegal behavior.
In cases like this, plaintiffs' attorneys usually secure subpoenas directing ISPs to cough up the true identities of pseudonymous discussion board members, and ISPs have willingly complied. But in this case word reached the defendants before Yahoo! furnished the names to the Florida courts. Discussion members were thus able to hire their own legal guns, who filed a motion to quash the subpoena. The defendants argue that anonymous criticism should be protected and that Hvide's suit amounts to nothing more than another corporate attempt to muzzle critics. Indeed, the ACLU has rallied to defend the discussion-board John Does, arguing that the tradition of anonymous American discourse, which stretches back to the publication of the Federalist Papers, should hold sway in the age of the Internet. Legal wrangling over the case may determine the legal limits of electronic anonymous discourse.
Hitting the boards
"There's a real tension here," says Lyrissa Lidsky, a professor of law at the University of Florida. Lidsky has signed on as cooperating counsel to the ACLU. "The right to speak anonymously can be abused. But the benefits of anonymous speech are tremendous, and we are seeing more and more citizens feeling free to engage in a wide range of discussion and to partake in novel ideas."
Companies are increasingly turning to the courts to prevent chat-room mudslinging. Lidsky began tracking the phenomenon a year ago for a law review article and saw the frequency of John Doe defamation cases mushroom. There's even a club on Yahoo! now for John Doe defendants. "The companies themselves are starting to see the message boards as a significant source of information about their company," Lidsky says.
Corporate America is also closely following the Florida case. "Public companies are very concerned with having their reputations tarnished by anonymous posters. With the push of a button, an anonymous poster can destroy millions of dollars of good will," says Bruce Fischman, counsel to the plaintiff and president of Miami law firm Fischman, Harvey & Dutton.
The case affords the Florida court a chance to address a particular and significant question: Should plaintiffs in defamation cases have to prove the merit of their claim before ISPs are forced to hand over chat-participant identifications? Many aspects of this case could turn on that question, says Christopher Leigh, an attorney representing some of the John Does. One of Leigh's clients is said to have called the plaintiff "a flying turd." "I'm not going to allow you to seek out the identity of this person because they called you a flying turd. That is frivolous," Leigh says.
Perhaps we can draw insights from a 200-year-old political correspondence. Published in New England newspapers during the 1787-1788 debate over the recently drafted U.S. Constitution, the Federalist Papers argued for ratification. Although the 85 essays were famously signed "Publius," it was known even then that the authors were Alexander Hamilton, James Madison, and John Jay. Many maintain the authors chose to remain anonymous to protect themselves against prosecution (Hvide's attorneys hold this view). But Paul Finkelman, a professor of law at the University of Tulsa, argues the authors were adhering to an intellectual fashion of the time that placed the power of ideas above the status, race, or personality of the speaker. "Unlike today, where we venerate celebrity, everybody venerated the ideas themselves," he says.
Still, the John Does in the Hvide case were engaged in discussion of economics and business, not pure politics. The courts will decide whether there exists a significant difference.
Lidsky, for one, insists upon the gravity of the issues being considered. "I do think that the Internet has the potential to revolutionize public discourse," she says. "Do we want to squelch that discourse because of perceived public harms, or do you want to let that discourse run?" Rick Overton (firstname.lastname@example.org) is a contributing writer for Business 2.0.