businessman asks appeals court
to shred anonymity on web
ELLIS BERGER Sun-Sentinel
Web-posted: 10:23 p.m. Sep. 20, 2000
-- In one of the first cases of its kind to reach the appellate level,
three Miami-Dade County judges heard legal arguments Wednesday in a case
with potentially far-reaching implications about anonymous speech on the
easy to understand the marketplace of ideas," said Judge Robert L. Shevin
of the Third District Court of Appeals. "But isn't there a great danger
in the right of someone to speak anonymously in the depth of cyberspace?"
The speech in question was leveled against J. Erik Hvide, former president
and chief executive officer of Fort Lauderdale-based Hvide Marine, a global
marine services company founded by his father, Hans J. Hvide, in 1958.
Hvide, 51, who spent 29 years with the company before stepping down last
year, alleges he was forced out because of defamatory messages posted
by disgruntled stockholders, current or former employees or some other
mean-spirited critics hiding behind the First Amendment.
He claims his own constitutional rights will be compromised unless he
is able to confront his accusers in court, and he cannot do that without
knowing who they are.
Miami Attorney Bruce D. Fischman argued that the posted messages maliciously
branded Hvide as being corrupt, committing fraud, cheating stockholders,
and even of being "drunk at the wheel" by comparing him to the skipper
of the ill-fated Exxon Valdez that created a massive oil spill in Alaska
"They have a bone to pick with corporate America," Fischman said of the
defendants. "Erik Hvide is not interested in chilling speech. He wants
his day in court to see who's ruined his life."
University of Florida Law Professor Lyrissa Lidsky, who represents between
one and eight clients who are identified in court papers only as "John
Does," said the court needs to strike a balance between protected anonymous
speech and protection from defamation of character for the targets of
The immediate issue is the extent to which the millions of people who
post messages on the Internet can count on their identities being kept
secret. More broadly, the case could help set the standard for free speech
in a rapidly evolving medium.
Circuit Judge Eleanor Schockett was the first to hear the case and ruled
for Hvide in May by ordering American Online and Yahoo! to disclose the
identities of the message posters. Schockett then stayed her own order
to allow the appellate court to decide the central issue raised by the
defendants, that their identities should remain secret unless Hvide is
able to present a reasonable likelihood that he was defamed.
Lidsky, a cooperating attorney with the American Civil Liberties Union
of Florida, agreed that anonymous speech per se is not protection from
defamation, but argued that Hvide has not been specific about which messages
defamed him and has not shown the extent to which he was harmed by their
Short of Hvide being able to make such a case, Lidsky said, Shevin and
the other judges on the panel, David M. Gersten and John G. Fletcher,
should come down on the side of protecting anonymous speech.
"Why is it so important?" asked Gersten, who seemed far more swayed by
the free speech argument than Shevin, while Fletcher posed the fewest
questions and appeared the most neutral.
"Anonymity creates the nature of the Internet" by making possible "uninhibited
robust debate," Lidsky said. "Anonymity should be reserved until you have
a valid complaint."
If any of the "John Does" were sitting among the 20 or so people present
during the half-hour appellate hearing, neither the attorneys nor other
onlookers revealed their identities.
The judges gave no indication about when the panel might decide the issue.
Ellis Berger can be reached at firstname.lastname@example.org or 305-810-5004.