Anonymous comment? Maybe not. Newspaper ordered to provide info

By Kim Murphy

July 12, 2012 12 AM PT

When entering the comment forum of your typical news website or blog these days, it sometimes seems like a good idea to wear a helmet. Well-crafted insult? Barbed bombast? Bring it on. Often cloaked in the anonymous protection of screen names, readers feel free to unload on one another, and at the world in general, with impunity.

But that protection may be an illusion.

A judge in Coeur d’Alene, Idaho, has ordered the Spokesman-Review newspaper to reveal the identity of a reader who made a disparaging comment about a local politician on one of its news blogs.

The commentator, Almostinnocentbystander, had wondered on the newspaper’s popular Huckleberries Online blog if $10,000 missing from the Kootenai County Republican Party might be stuffed in local GOP chairwoman Tina Jacobson’s blouse, prompting Jacobson to file suit against “John Doe” for defamation.

U.S. District Judge John Patrick Luster in his ruling Tuesday rejected the idea that freewheeling Internet commentators necessarily have the right to hide behind the 1st Amendment — not even under the special privilege that often attaches to newspapers’ anonymous sources.

“While the individuals are entitled to the right of anonymous free speech, this right is clearly limited when abused,” the judge wrote in his order, released in Kootenai County District Court.

Jacobson also has the right to sue the person she believes defamed her, whoever that is, the judge ruled, concluding that “the necessity of Almostinnocentbystander’s identity to the plaintiff’s case outweighs the defendant’s right to anonymous free speech in this case.”

The case isn’t necessarily precedent-setting. Courts in various states have been confronted with similar questions, and most have held that outright defamation isn’t allowed, anonymously or otherwise. What’s murky is the line between clear defamation expressed as fact — “Jane Doe stole $10,000 from the cash drawer on Feb. 12” — and the shadier realm of opinion and the shooting off of mouths.

In arguing against having to disclose Almostinnocentbystander’s identity, the Spokesman-Review argued that nobody looks at off-the-cuff opinions tossed about in blog forums as statements of fact.

“Courts have noted that there is a low barrier to speaking online and that an Internet connection allows individuals to publish their thoughts online, fulfilling a quasi-empowerment theory of unfettered communication on the Internet,” the newspaper argued in a memorandum filed with the court.

“With this empowerment comes freedom from editorial constraints that serve as gatekeepers for more traditional means of disseminating information, resulting in more informal and relaxed communications, bringing with it a recognition that readers give less deference to allegedly defamatory remarks published on online message boards, chat rooms and blogs than to similar remarks made in other contexts.”

A sensitive issue

What started all the hubbub in Coeur d’Alene is that Jacobson is not only a local party official, but a comptroller at a local company, meaning she is likely to be sensitive if someone brings up the word embezzlement.

And sure enough, after Almostinnocentbystander asked: “Is that the missing $10,000 from Kootenai County Central Committee funds actually stuffed inside Tina’s blouse??? Let’s not try to find out,” he or she followed it up with another comment: “A whole boat load of money is missing and Tina won’t let anyone see the books. Doesn’t she make her living as a bookkeeper? Did you just see where Idaho is high on the list for embezzlement? Not that any of that is related or anything…”

Jacobson’s attorney, C. Matthew Andersen, said his client immediately called for an audit of the GOP books, which showed conclusively she hadn’t stashed any money in her blouse or anywhere else. But there was also her job and her position in the community to consider, he said.

“She had to sit down with her employer and assure them she was not a thief, and their business monies were all straight. She had to go to her church and stand in front of her friends and say, ‘I am not a thief,’” he said.

Dave Oliveria, who administers the Huckleberries Online blog, took the comment down a little more than two hours after it appeared.

Still, he and attorneys for the newspaper argued in court papers that the ability to comment anonymously draws in readers and points of view that would be lost if everyone had to ‘fess up to their identities.

“It’s based on a belief that we have freedom of speech in this country, even if it’s anonymous, and people ought to be able to say what they want in whatever fashion,” Spokesman-Review Editor Gary Graham said in a telephone interview.

“Now obviously there is libel law and there is slander law, and there are precedents for the boundaries, but Dave Oliveria feels very strongly that if we were to require all commenters to identify themselves, that he would lose a lot of the community voices who would not feel comfortable having to be publicly identified,” Graham said.

The judge in his decision rejected the idea that the special privilege that often attaches to reporters protecting confidential sources applied in this case, not only because Idaho has no special “shield law,” but because Oliveria was acting not as a reporter but as an administrator of the blog.

As for the other commenters

One of the most interesting issues decided was whether the Spokesman-Review also would have to disclose the identities of two other readers who commented on Almostinnocentbystander’s comment.

“Phaedrus” and “OutofStateTater” didn’t say anything defamatory: “One of them was asking a question, ‘$10,000 missing? Do tell.’ Something of that sort,” Graham said. But Andersen hoped to be able to have the two other commentators identified as potential witnesses in the suit against Almostinnocentbystander when and if it goes forward.

Spokesman-Review attorneys, who prevailed on this point, argued that it was an especially egregious request, especially since the person who originally sought to know Almostinnocentbystander’s identity was another Republican Party official.

“Many times, defamation lawsuits are used as vehicles to force disclosure of the identity of persons who are critical of persons or organizations in power,” the newspaper said in court papers, warning that “nothing would violate the recognized First Amendment right of individuals to speak anonymously more than being ‘outed’ merely because they posted in response to an alleged defamatory statement, without participating in the defamation themselves.”

The Spokesman-Review has 14 days to hand over Almostinnocentbystander’s identity, unless it appeals, which the newspaper said had not been decided.

Phaedrus, meanwhile, elected to post a response on Huckleberries Online.

“So that’s what happened?” the comment said. “I was hoping to have a chance to tell Tina and her attorneys to kiss my bum. Ah well, another day, perhaps.”

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Follow Kim on Twitter @kimmurphy. Email: [email protected]