Wronged businessman asks appeals court
to shred anonymity on web

By ELLIS BERGER Sun-Sentinel
Web-posted: 10:23 p.m. Sep. 20, 2000

MIAMI -- 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 Internet.

"It's 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 in 1989.

"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 criticism.

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 content.

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 eberger@sun-sentinel.com or 305-810-5004.