Delaware Court Protects Blogger’s Identity
But Is There a Limit to Permissible Blog Speech?

The New York Times reported yesterday that the Delaware Supreme Court refused to unmask an anonymous blogger accused of defaming a local city council member:

The Delaware Supreme Court ruled Wednesday that if an elected official claims he has been defamed by an anonymous blogger, he cannot use a lawsuit to unmask the writer unless he has substantial evidence to prove his claim.

At issue was a defamation lawsuit filed last year by Patrick Cahill, a councilman in Smyrna, Del. Mr. Cahill said he needed the identity of a blogger who in a September 2004 posting praised the mayor but said Mr. Cahill was divisive and had “an obvious mental deterioration.”

In a second posting, the blogger, named John Doe in the suit, wrote that Mr. Cahill “is as paranoid as everyone in the town thinks he is,” according to court records.

Unfortunately, the Times story provides no context for the original dispute between factions within the Smyrna, DL local council. Also, the Times misses out on the fact that there were several John Does who were sued, not one. This is sure an ugly dispute. Apparently the mayor, Mark Schaffer (who a local journalist alleges may be one of the sued John Does) lives next door to Mr. Cahill, the council member. They started out as neighbors who merely hated each other’s guts. But after the mayor used his office to attempt to prosecute Cahill for various infractions, Cahill ran for council and won. That’s when the vendetta escalated and townspeople took sides. They started posting to the blog/forum.

The Delaware News Journal characterizes the posts:

One example of the postings from the opinion that I can print in a family newspaper goes like this: “Anyone who has spent any amount of time with Cahill would be keenly aware of such character flaws, not to mention an obvious mental deterioration.”

Most of the other postings referred to exaggerated body parts, infidelity and drunkenness.

The same article says this about the identity of one of the John Does:

But the lawyer for John Doe 1, also known by most people in Smyrna as the mayor…

So we have the case of a mayor who began by singling out his neighbor for ill treatment now possibly taking his cause anonymously to this website where he could be even more malicious because his identity was masked. Sounds like an absolute mess and a public official who’s abusing his office for the sake of prosecuting a personal feud. Based on the Times article, I figured this case was a slam dunk and easy law. But it is a much tougher call than the paper makes it out to be. The forum abuse is not garden variety, but serious, mean, defamatory and false.

In case anyone still believes that the mayor/alleged John Doe is white as driven snow, the article notes that the mayor is being sued by his election opponent:

Gene Mullen, who lost the April election by two votes because of some mischievous absentee ballots distributed by the mayor.

This is not a good guy. And the fact that the ACLU and Electronic Frontier Foundation, who I normally consider the good guys, filed friends of the court briefs on his behalf makes me feel queasy. Now, I’m not someone who believes the ACLU should not represent Nazis in protecting their free speech. But please allow me to feel extremely uncomfortable with their clients then and now. I think that EFF does a disservice in its press release by not alluding to the fact that their client, like the Nazis in the Skokie case, is not a paragon of virtue. The way they portray the case, one could infer that he was.

All that being said, there are principles here and I suppose it is generally a good idea to place some high barriers before someone who wishes to unmask anonymous bloggers on the internet. But one critical sentence from the judicial opinions disturbs me:

Blogs and chat rooms tend to be vehicles for the expression of opinions; by they very nature, they are not a source of facts or data upon which a reasonable person would rely.

This may be true of some blogs and it may’ve been true of most blogs several years ago. But it is no longer true and does a disservice to the public’s understanding of what blogs are and their myriad uses for the public good. Even the EFF attorney who wrote their brief in this matter and whose “take” on the case I disagree with in many respects recognizes that this passage is problematic when he writes:

But the court’s view of blogs and blogging is too narrow, and fails to recognize that blogs are increasingly becoming reliable sources. Context remains critical for defamation analysis, but the context will vary widely between blogs.

Tom Zeller, Jr. in a separate NYT story about the case comes a little closer to acknowledging the sleazy nature of John Doe’s (aka Mayor Schaffer) behavior:

…The decision of the Delaware court…recognize[s] 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.”

I suppose much of this is right. The pain of a single individual is not as important as preserving an overarching principle that protects the freedoms of all Americans. But we need to keep in mind that Mayor Schaffer and others on the internet who “elicit the worst of human impulses” do not harm only a single person. They harm hundreds, thousands, tens of thousands with their slander, insults, defamations and lies. Perhaps the good of preserving one’s anonymity on the web still trumps this suffering, but I think it raises the level of importance of the suffering from a single individual to a societal scourge that potentially crushes undeserving individuals and demeans and degrades public discourse. I know this from hard personal experience (read on below).

In light of this and their loss in the courts, I’d suggest the mayor’s opponents redouble their political efforts and get the jerk out of there.

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When does a blogger cross the line?

But let’s get to a much bigger point: where DO you draw the line in deciding what is permissible or impermissible speech in blogs? The free speech advocates at the ACLU and EFF seem to favor no line or a line that moves awfully far to the outer edge in justifying the type of crap alluded to above. But I’d like to ask them: what precisely would impermissible speech look like? What would a blogger have to do or say to cross the line?

Clearly, (and I think even they would agree) if someone threatens your life that would be impermissible. But what about lesser offenses? If you are African-American should they be allowed to call for the extermination of your race? I think here most free speech folks would say they should be allowed to do so. But I’m not so sure.

While we’re talking on this subject, let me bring up some personal testimony to blog abuse. Unfortunately, all too often I receive the type of abuse levelled at Mr. Cahill. It comes from people who detest my political views. The language in these rants ranges from the mundane to the most vile and profane. With WordPress’ blog security features and plugins I’ve now been able to control such hate within my own blog. But I’ve just discovered a blogger who’s ranting about me in his own blog. Well, what’s so bad about that? Actually, nothing. What he says about me is so patently false, hyperbolic and poorly articulated that it would be darkly humorous if it wasn’t so pathetic. No, it’s not his words that bother me.

What bothers me is that he has copied (stolen might be a better term for it) a picture of me and my then 3 year old son from this blog and displayed it at his own in order to ridicule both of us. The thought of my little boy’s image displayed for all those haters who may see it at his site is disturbing. For me this is an issue of copyright infringement. So ACLU and EFF, what do you think about this? Actually, I’ve written an EFF staff attorney about this matter and while he commiserated with me about the foul nature of the attack, he casts doubt on the copyright defense (I do not agree with his argument nor does my own attorney) and says the best approach is to suck it up and walk away.

So to free speech absolutists I ask this question: what if it was YOUR child depicted on such a site. Would you be as calm and serene then?

By the way, my attorney will present the guy’s blogging provider with a takedown order which we hope the blogger will honor.

UPDATE: After sending Blogger.com two demand letters which they ignored, my attorney sent them one saying virutally the same thing and the photo was removed from the site within hours.