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Mud Slingers Win In Delaware


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Internet anonymity is to be prized even when the remarks made are pretty nasty, says the Delaware Supreme Court. New York Times columnist Tom Zeller Jr. discusses the case:


Anonymous Mud-Slinging Wins a Round


Published: October 10, 2005

IN the freewheeling, often obscene babble of Internet discourse, the insults flung by an anonymous poster to a Delaware Web log last year - comments that would eventually land at the center of a state court decision celebrated by First Amendment and Internet privacy advocates last week - were pretty tame.


"Cahill has devoted all of his energy to being a divisive impediment to any kind of cooperative movement," wrote someone using the nickname "Proud Citizen" on a blog dedicated to issues in the north-central towns of Smyrna and Clayton. Cahill is Patrick Cahill, a councilman in Smyrna.


"Anyone who has spent any amount of time with Cahill would be keenly aware of such character flaws," Proud Citizen continued, "not to mention an obvious mental deterioration."


A day later, the anonymous antagonist took the stinging tone even further, suggesting that Mr. Cahill "is as paranoid as everyone in the town thinks he is."


The chatter on the Smyrna/Clayton Web log last week suggested that the comments weren't the worst of what was said about Mr. Cahill - as well as his wife - and that the blog-sniping was actually spillover from a raging family feud between the Cahills and the kinfolk of Smyrna's mayor, Mark G. Schaffer. (See newszapforums.com/forum47 for hints of the Hatfield-McCoy back story.)


But to the rest of the world, the matter was a victory for free speech and, perhaps more fundamentally, that altered state of being that makes the Internet so powerful, so liberating and so dangerous: anonymity.


In a nutshell, Mr. and Mrs. Cahill, in mounting a defamation suit, managed to obtain the Internet protocol address for Proud Citizen, and sought to compel Comcast, the cable company that had provided the address, to unmask the opinionated poster behind it. Comcast notified its customer of the pending action, and Proud Citizen promptly filed a motion to block the outing.


A lower court sided with the Cahills, but on appeal, the Delaware Supreme Court sided with John Doe No. 1, a k a Proud Citizen, stating that plaintiffs in such cases ought to face high hurdles before being granted the right to strip the anonymity from Internet posters - even cranky, insulting ones.


"We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously," the court said. "The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all."


The implication, of course, is that a rich and diverse commentary is fundamental to a healthy democracy, and to their credit, courts have generally tended to recognize that the Internet, for all its rough edges, is arguably one of the best things to happen to democracy since the preamble itself.


"Despite the protection provided by the First Amendment, unconventional speakers are often limited in their ability" to reach the masses, wrote Federal District Judge Lowell A. Reed, Jr. in 1999, in a case that struck down the Child Online Protection Act as being too restrictive of free speech. "In the medium of cyberspace, however, anyone can build a soap box out of Web pages and speak her mind in the virtual village green to an audience larger and more diverse than any the Framers could have imagined."


It's a fair assumption, of course, that fewer people would build digital soap boxes if they were forced to abandon "dogbyte12," "naturalman1975" and "NeuroticBlonde" - three handles grabbed at random from the political blogs DailyKos and FreeRepublic - and use their real names.


"There are some conversations that are undeniably improved when the rule going in is that you have to stand behind what you say and have to wear a name tag when you do it," said Jonathan Zittrain, who holds the chair in Internet governance and regulation at Oxford University and is a co-founder of the Berkman Center for Internet and Society at Harvard Law School. "But that's certainly not all conversations. People might be prepared to ethically stand behind what they say, but might be in a position that they can't afford to lose their house over it. Speech shouldn't just be for people with lawyers."


In other words, without robust protections for anonymity, which the Supreme Court called "a shield from the tyranny of the majority" in the 1995 case McIntyre v. Ohio Elections Commission, just the threat of lawsuits would have a chilling effect on free speech. And it is worth noting, too, that the Delaware court reaffirmed the notion that however distasteful - even stupid - one might find the "speech" on Internet blogs and bulletin boards, at least some of it belongs to an "honorable tradition of advocacy and dissent."


It's a line of thinking that sagely connects the "Proud Citizen" of modern-day Smyrna to Alexander Hamilton, John Jay and James Madison, who in 1787 and 1788 all took to the newspapers under the pseudonym Publius, urging New Yorkers to ratify the Constitution.


A worthier exercise, perhaps, than suggesting anonymously that a small-town councilman suffers from "mental deterioration," but the larger principle is the same.


The group Reporters Without Borders noted in its new "Handbook for Bloggers and Cyberdissidents" that there are plenty of places - Iran, China, Vietnam - where pseudonymous political bloggers are routinely tracked down and imprisoned. And while there are numerous techniques, from anonymous proxies to encryption, that Internet users anywhere can use to cloak their I.P. addresses, and by extension their identities, few things are foolproof.


Which makes the decision of the Delaware court, and so many others like it, that much more important.


Such decisions recognize that the Internet's default shadow of anonymity can provide refuge for thieves and cons and pedophiles, that it elicits the worst of human impulses to impugn and gawk, to steal or spy or stalk. And yet it is worth protecting.


"The right to remain anonymous may be abused when it shields fraudulent conduct," the Delaware court said, quoting the Supreme Court's decision in the McIntyre case. "But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse."

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