An ongoing nationwide battle against offending online comments has taken on a political tinge in Idaho, where a local Republican party official is suing a commenter on a newspaper website and trying to force the newspaper, the Idaho Spokesman-Review, to turn over the commenter’s information, as well as the information of two other commenters who replied.
Tina Jacobson, chair of the 71-member Kootenai Republican County Central Committee filed a defamation lawsuit against one of the Spokesman-Review‘s commenters in April, seeking $10,000 in damages.
The lawsuit stems from a comment the lengthily-pseudonymed commenter posted on February 14 on a blog entry on the Idaho Spokesman-Review website featuring a photo of Jacobson and other Republican officials.
Although the post didn’t have anything to do with the issue in particular, “Almostinnocentbystander” questioned whether $10,000 that was allegedly missing from the Kootenai County Republican Central Committee could be “stuffed inside Tina’s blouse,” as the Spokesman-Review recalled the statements.
The original blog and the comments have since been deleted, and the Spokesman-Review noted that it had banned the commenter, who sent an apology note: “I apologize for and retract my derogatory and unsubstantiated commentary regarding Tina Jacobson.”
But in order to actually press the claim, she needs the commenter’s identity, as well as those of two others who posted replies to the original comment, which Jacobson’s attorney argued were witnesses to the alleged defamation.
And so, Jacobson’s attorney appeared in district court in Coeur D’Alene late last week, facing off against an attorney for the Spokesman-Review.
“You can’t call someone a thief and expect to get away with it,” said C. Matthew Andersen, the aggrieved Republican chair’s counsel, according to the Spokesman-Review.
As the newspaper’s attorney Duane Swinton countered, as quoted The Associated Press: “We’re here for the rights of people to speak anonymously on the Internet…We’re here as an advocate for First Amendment rights.”
The judge’s ruling on whether or not to quash Jacobson’s subpoena against the newspaper is expected soon. But the case has taken on national significance as the latest test of the limits of anonymous speech in the electronic age.
“As far back as 1784, Thomas Jefferson wrote anonymous letters published in various newspapers,” wrote attorney Brian D. Spitz from Ohio, in an email to TPM. He continued:
“John Adams, Ben Franklin, both repeatedly had anonymous letters published in newspapers. Anonymous publications have always been a strong foundation for the open exchange of ideas in the United States. I think that publications that want more interaction with their end-users will continue to allow anonymity. But, that anonymity is not a license to post unlawful comments without any possible legal consequence. Back then, if our founders’ identities were revealed, they would have been hung. Now, posters are only sued.
Spitz has more experience than most when it comes to navigating the uncharted legal waters of anonymous online commentary. He represented Shirley Strickland Saffold, an Ohio judge who sued The Cleveland Plain Dealer for $50 million back in April 2010 after an editor with the paper disclosed that an email address she used was attached to an online pseudonym that made comments questioning the mental health of a relative of a newspaper reporter, as well as opined on Saffold’s own case.
Saffold, who denied leaving the comments and said they were the work of her 23-year-old daughter, accused the newspaper of violating its contract to keep online commenters’ identifying information confidential. Saffold was removed from a high-profile serial killer case as a consequence of the controversy, and eventually dismissed the lawsuit against the newspaper and settled out-of-court with a company that helped manage the newspaper’s website.
“The distinction in these cases is who is being sued and what is the role of the website provider,” Spitz told TPM. “In the Saffold case, the suit revolved around the website hosts’ voluntary disclosure of supposedly anonymous identities contrary to the terms of the privacy policy and conditions of use, which was the basis of a breach of contract claim against the website hosts.”
“Beyond the involvement of a political leader, I’m not seeing anything particularly novel here,” wrote Kashmir Hill, a technology reporter and online privacy expert at Forbes, who has various similar lawsuits in the past three years, in an email to TPM.
Indeed, it’s worth putting the Idaho case into context. There have been at least three additional cases of nationwide interests where online commenters or the websites that host them were sued for their content.
Just at the end of April, a couple in Texas won a $13 million judgement from formerly anonymous commenters on the local discussion forum website Topix, which was forced to disclose their identities by a court after they left comments accusing the couple of sexual assault (Topix, notorious for its noxious online discussion, still maintains anonymity as a cardinal value, its CEO previously told TPM).
A New York judge in October 2010 ordered Google, parent company of YouTube, also known for its vile commentary, to turn over the names of those who made disparaging comments on a video featuring a then-graduate student of Columbia Business School.
And in May 2010, an interim local Louisiana official filed a lawsuit against online against anonymous commenters on NOLA.com, the website of The Times-Picayune newspaper, although he later dropped the lawsuit.
Two years later, in May of 2012, two New York state lawmakers began advocating a bill that could ban anonymous online speech, only to be met with a barrage of criticism (they later clarified the bill was only meant to target “factual concerns”).
Still, the Idaho case may turn out to be a seminal one when it comes to deciding the future of trolling online.
“Given the involvement of a public figure, the court may be less likely to out the anonymous speaker,” Hill told TPM.
“In the end, I’m curious to see if there is even a pot at the end of this rainbow,” wrote Spitz. “If the Court grants Jacobson’s motion to compel, there could be provided another false identity supported by a throw-away email address sent from a Wi-Fi connection at Starbucks.”
