Sunday, December 24, 2000

Are anonymous opinions protected by 1st Amendment?

Internet 'free speech' draws fire, ire

By John Eckberg
The Cincinnati Enquirer

        Freedom of speech, or freedom to defame?

        That's one question in a raging dispute over whether a person can anonymously say something nasty about someone else on the Internet — and get away with it.

        The dispute involves AK Steel executive John G. Hritz and allegedly damaging remarks about him posted by an Internet user known only as Jane Doe.

        He claims the comments were “threatening, libelous and disparaging.” Jane Doe's lawyers say they're covered by the First Amendment guarantee of free speech.

        As Internet chat rooms explode in popularity, the case has implications far beyond the Butler County court where it began five months ago. It's one of a growing number of cases nationwide that seek to limit what can and cannot be posted on bulletin boards on the Web.

        “This is an emerging area of law,” says Paul Schwartz, professor of law at Brooklyn Law School and an internationally recognized expert on Internet privacy issues. “This case is a dream law-school hypothetical.”

        Professor Schwartz, co-author of the 1996 book Data Privacy Law, says American courts have long recognized the right to anonymous speech. A state cannot, for instance, force people who are handing out election leaflets to wear name tags.

        “The question is this: Where is the boundary in this collision between the First Amendment and privacy (on the Internet)?” he says. “It's something that's going to have to be worked out by the courts.”

Critical comments
        Mr. Hritz (pronounced Ritz) is an executive vice president and general counsel of Middletown-based AK Steel Corp. who found himself the subject of a chat room discussion in June.

        Among a handful of notices on the Yahoo! Inc. chat-room board pertaining to AK Steel, an anonymous user typed: “Mr. Hritz would litigate the time of day. OOOPS - I will be in court.“

        The writer also claimed he “would be meeting up with Hritz in the future - which is the best part, one of the few times he doesn't know what's coming. I will treat Mr. Hritz like he treats everybody else - like dirt.”

        The author of the remarks, called Jane Doe by Mr. Hritz's lawyer, also wrote on the chat bulletin board:

        “I disagree with Mr. Hritz's methods but will soon be experiencing them. He is a known factor - Mr. Hritz knows one way to fight - to the death - I am looking forward to it. All hell will be breaking loose.”

        But not all of Jane Doe's comments were critical.

        “Mr. Hritz is very intelligent and very well schooled,” one posting read. “I admire his preservance (sic) in gaining knowledge. He should be commended for his efforts.”

        Within a month, Jane Doe was, indeed, involved in litigation. Mr. Hritz had retained Frost Brown Todd lawyer David C. Horn.

        Mr. Horn obtained a subpoena from Butler County Common Pleas Court Judge Michael Sage, who ordered Yahoo!, a company with 166 million cyber-visitors each month, to name the e-guest who had criticized Mr. Hritz.

        Although Mr. Hritz hasn't filed a lawsuit, the subpoena to learn Jane Doe's identity was a first step along that path, says Paul Levy, Jane Doe's lawyer and a member of Public Citizen Litigation Group, a public-interest law firm based in Washington, D.C.

        Mr. Levy is trying to persuade a federal judge in Cincinnati to take over the case and to quash the subpoena.

        Mr. Levy says the case is a good example of how law has not kept pace with the Web and why courts must protect individual identities of people who post messages from the privacy of their basements, living rooms, offices and kitchens.

        “Many people expect that, in certain forms, they can speak anonymously,” Mr. Levy says. “They create screen names in chat rooms or online where they can express themselves without having an identity known.

        “They don't want to be tracked online and have their privacy invaded.”

        Neither Mr. Hritz nor Mr. Horn, who left his law firm and is now employed by AK Steel's legal division, responded to requests for interviews for this story. AK Steel is not involved directly in the case, and officials there declined comment as well.

        In court papers, however, Mr. Hritz says he needs to know who posted the messages so he can pursue “legal claims,” because the messages “continue to cause injury and damage.”

Cases multiplying
        No individual or agency keeps track of exactly how many cyber-privacy cases are pending nationwide. Yet no one denies that the number is growing as the Internet extends its reach into almost every facet of American life.

        In Loudoun County Circuit Court in Leesburg, Va., where America Online is headquartered, 390 search warrants to unmask anonymous posters have been filed this year. Only 171 were filed in 1998, according to Gary Clemens, clerk of Loudoun Coun ty Circuit Court.

        Yahoo!, based near San Jose, Calif., faces a similar spate of search warrants. Mr. Levy says Yahoo! has a legal team that does nothing but deal with cases involving privacy issues.

        Contested cases typically come down to civil-rights lawyers and privacy supporters fighting corporations and individuals who see the obscurity of the Internet as a threat to reputations, company stock prices and even corporate secrets.

        Corporate lawyers want to lift the veil of secrecy from some chat-room posters with judicial orders for disclosure. Lawyers like Mr. Levy, however, see the Internet as the final frontier for free speech and believe that postings on the Web should have the same protections as a person muttering on a city sidewalk in Anywhere, USA.

        “Some of these suits brought against anonymous posters are brought based on criticism that ultimately should be treated as opinion,” says Lyrissa Barnett Lidsky, professor of law at the University of Florida College of Law in Gainesville.

        A professor of media law with a specialty in Internet defamation, Ms. Barnett Lidsky, who wrote the article “Silencing John Doe” in the Duke Law Journal earlier this year, says chat rooms can be tempting outlets for venting by employees.

        “Essentially, these cases are brought to shut somebody up,” she says. “It has the effect of silencing critics, especially if they're of modest means and without the money to defend against a libel suit.”

        The threat of a lawsuit also may occur when executives want to uncover and silence employees who are critical of the boss.

        “Employees are in a very precarious position,” Ms. Barnett Lidsky says. “If they uncover them and they're an employee, the company will just fire them. The company typically considers it a form of disloyalty to be criticizing the company on a message board.”

What is "private'?
        Alan Davidson, staff counsel for the Center for Democracy and Technology, a civil-liberties non-profit group based in Washington, D.C., predicts that cases of alleged online defamation will continue to grow until gray areas become black and white.

        “There are lots of workplace issues here,” he says. “Somebody is using a computer to reflect on a workplace. Well, when an employer owns its network, say, a laptop, it has the right to control what's on the computer.”

        Lines blur, however, when the computer is in someone's home. “With the gray line between home and work today, what about people who are using a company computer at home to do Christmas shopping - lines between work and home have blurred,” Mr. Davidson says.

Employers have rights

        He says employers have broad rights regarding computer networks.

        “Most people assume that e-mail or Web traffic is private,” Mr. Davidson says. “But it might not be when it's on the company computer. For a lot of people, the primary way they access the Internet is at work.

        “It's impractical to not have personal conversations through a work computer.”

        Chat rooms also bring in a fortune in advertising dollars for Internet service providers such as Yahoo!, America Online, Raging Bull and Motley Fool.

        The greater the controversy, the more viewer traffic and, therefore, the higher the rates that can be charged, says Bruce D. Fischman, president of the Miami law firm of Fischman, Harvey & Dutton. He has handled dozens of Internet bulletin-board cases and advises companies on how to proceed.

        “It's like (Jerry) Springer's talk show,” Mr. Fischman says. “People tune in to see sensationalism. It drives viewers, drives banners and that drives advertising revenues.”

        A New York investment analyst who covers Yahoo! agrees that the finance division at Yahoo! is a revenue mine for the company.

        “Somewhere between 30 percent to 40 percent of Yahoo's revenues, depending on the quarter and trading activity, comes from Yahoo Finance and that would include the chat message boards,” says Jordan Rohan, a new media industry analyst with Wit Soundview, an investment banking firm based in New York City.

Cyber-smearing can be costly
        Mr. Fischman believes that cyber-smearing cannot be tolerated in a free and open society. The stakes are too high for employees, shareholders and executives at the companies under attack.

        Stock-price manipulators can use message strings to drive down the share price of a company so they can buy at a bargain price, he says. Others might try to create a feeling that a company is a miserable place to work or leak trade-secret information.

        “Competitors are a real problem,” Mr. Fischman says.

        When comments are personal, the impact goes far beyond the scope of the firm.

        “Any lambasting on a personal basis against CEOs or directors can elevate to defamation,” he says. “It affects families, personal lives and reputations.”

        But Mr. Levy counters that because identities are concealed on the Web, what is posted in chat rooms has little or no veracity.

        “The anonymous nature of these chat rooms means people should think twice about believing what they read,” Mr. Levy says. “Some people don't know what they're talking about, and some do. It's "reader beware' on the Internet.”

- Are anonymous opinions protected by 1st Amendment?
Internet increasingly less anonymous


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