Cybersmear: Telecommunication's 200-Year-Old Riddle

By Chiger, Stephen J. | Communications and the Law, June 2002 | Go to article overview

Cybersmear: Telecommunication's 200-Year-Old Riddle


Chiger, Stephen J., Communications and the Law


 
   If men were angels, no government would be necessary. 
 
   --Anonymous (1) 
 
   Rumor has it DSL.net axed 80 jmore [sic] people. Word is the rest of the 
   company will be around only for another month or so. If you're using 
   DSL.net, I'd recommend you switch over quick.... 
 
   --Anonymous (2) 

"Speak loudly, but carry a big retainer." It's a strange mantra but perhaps also a vital one as Internet users navigate their new, undiscovered country. The Internet isn't lawless, but the white picket fences aren't up yet either--users still expose themselves to quite a bit of risk when they exercise their First Amendment rights online.

One fascinating--and still unresolved--aspect of Internet speech regulation is the issue of "cybersmear"--the online publication of defamatory remarks by anonymous speakers. These statements, particularly when made in financial chat rooms, can have a damning effect on a company's profits. In response, a number of corporations have begun suing anonymous posters to recover damages, stop the postings, or simply fight back.

Because the Internet is not a blind system of computers--even the most anonymous-seeming information often can be traced--a substantive issue arises regarding whether and how an Internet service provider (ISP) can be forced by subpoena to provide the identities of these chat-room posters. Given a national tradition of anonymous speech, U.S. courts now must balance the First Amendment rights to anonymity with a company's rights to recover libel damages. By examining historical protections for anonymous speech and the case law that surrounds cybersmear suits, we can understand both the urgency with which a governing legal standard must be set and an outline for how that can be done. From the Federalist Papers to F**ckedCompany.com, the Internet has given us a riddle 200 years in the making.

A BRIEF HISTORY OF ANONYMITY: SCOPE AND PRECEDENT

Many people might say the right to speak anonymously is as American as apple pie. The Federalist Papers, which publicly baptized America's infant constitution, were published under the pseudonym "Publius." A few years earlier, Thomas Paine signed his first copies of Common Sense "An Englishman." The 1735 acquittal of John Peter Zenger, a newspaper publisher who was arrested for printing anonymous attacks on the governor of the New York colony, has been seen as one of the fundamental moments in the development of a free press. (3) Today, without protections for anonymous speech, many of the most profound news stories would never reach the public. Anonymity is a way for officials to leak often-invaluable information and for whistle-blowers to pass along news tips without fear of direct reprisals. (4) To wit, anonymity has often been the oil in our political engine--and so long as the engine runs relatively well, many are loath to tinker with it.

The Supreme Court has given underpinning to this history, often citing some of the above examples in its decisions. Talley v. California--decided when the Internet was but a faint twinkle--has served as the landmark case regarding the right to publish information anonymously. (5) Here, the Court struck down a Los Angeles law barring anonymous handbills, defined as "any hand-bill, dodger, commercial advertising circular, folder, booklet, letter, card, pamphlet, sheet, poster, sticker, banner, notice or other written, printed or painted matter calculated to attract attention of the public." (6) In the majority opinion, Justice Black wrote: "There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression.... Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind." (7)

The case addressed a fairly traditional publication vehicle, as did its 1995 successor, McIntyre v. …

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