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Calling for Harm to the First Amendment

If censorship were legal and not repugnant to everything I believe in, this editorial by former Judge Michael Chionopoulos would be the first thing I would wipe from the marketplace of ideas. In all fairness, the editorial is so poorly composed that I do not think it is the author’s fault. The lack of cohesion in the article suggests that the editor must have cut out large swaths of the original piece — making the author look bad in the process.

Whether it is the author or the editor who is at fault, the article spreads the worst kind of misinformation about the First Amendment. If it goes without rebuttal, it could cause terrible violence to our profound national commitment to free expression. The article, titled First Amendment rights in the blogosphere, would be more appropriately titled “A Call to Repeal the First Amendment.

Since censorship is neither legal nor desirable, I will combat this article’s ideas with those of my own. That is how the marketplace of idea works.

Essentially, the article’s point is that anonymous speech on the internet should not be permitted because it permits defamation without consequences. Therefore, nobody should be able to speak anonymously on the internet.


Chionopoulos begins his misinformation with some well-placed melodrama.

Blogging can be a helpful tool or a dangerous tool; just like a hand gun, it is only as dangerous as the intent of the person possessing it.

Ah yes, speech is just like a hand gun. Last I checked, nobody ever died from speech on a blog. My intent is to defend the Constitution from ignorance. Nevertheless, in the process, I am forced to discredit the author. Somehow I believe that his health and safety will remain intact — no matter how accurate my written bullets may be.

The article follows with a correct statement about the First Amendment (one of the few in this written jenkem).

Any law promulgated by Congress, States or political sub-entities must not violate the author’s First Amendment right to free speech. There are exceptions, such as when a compelling governmental interest is at stake.

Unfortunately, the legal reasoning quickly unravels:

Blogging, particularly about topics that do not involve national security, probably does not meet that stringent requirement. The most likely role that government could play is seeking to limit that which is said.

This is an issue that our national Congress, State governments nor local governments are likely to tread upon. It simply creates too much fertile ground for political fodder.

Since a “blog-attack” is not likely to be prohibited by law or regulation any time soon, the avenue of civil redress for defamation remains the only avenue for a victim to pluck from the blogosphere harmful, untrue statements.

Most states provide for truth to be an absolute defense to defamation.

Is this an April Fool’s edition that got sent out on the wrong day? Governments are not likely to “tread upon” this issue because the First Amendment prohibits it. As far as “most states” are concerned — truth is an absolute defense to defamation everywhere that the Stars and Stripes may fly.

The author compares defamation to yelling “fire” in a crowded theater — a common rhetorical device used by those who dislike free speech. If you yell “fire” in a crowded theater, it causes an immediate reaction that has a potential to cause actual physical harm to others. The “fire” analogy is misplaced. Like inciting a riot, it is conduct, not speech.

The author also says: “Clearly, Congress meant to separate an individual right of free speech from free speech of the press.”

I’d imagine that if “Congress” (or perhaps the framers) intended to separate the right of free speech from the freedom of the press, they wouldn’t have lumped them in to a single Amendment.

I’m sorry, nit-picking at this article distracts from attacking the real point: Anonymous blogging should be illegal.

[W]ith respect to a blog-attack, justice really is for sale because the courthouse doors are slammed shut in the face of a pauper plaintiff.

Absent the means of electronic sleuthing experts, expensive constitutional lawyers, filing fees and undoubted appellate costs justice will elude the victim.

What truly makes this rambling incoherent dreck dangerous is that if you read this without an informed mind, you might actually start to buy into it.

Nevertheless, I have yet to find someone who claimed to be the “victim” of internet defamation who couldn’t find a lawyer shady enough to take their case. The far more common scenario is the defamation defendant who finds himself at the business-end of an unethical, unfounded, and unsupportable lawsuit — referred to as a SLAPP suit. The plaintiff’s mission in those cases is to destroy and silence the speaker. They often succeed even when the plaintiff’s case is unsupportable because if you think that “internet sleuths” are expensive, try defamation defense lawyers.

Even when the innocent speaker “wins” his case, he often walks away with bankruptcy-inducing legal expenses. There is usually no down-side to filing a baseless defamation action, since most judges lack the coglioni to impose sanctions and award fees to defendants when appropriate. Frivolous lawsuits are still damaging, even when you win.

Knowing this, many bloggers choose to speak anonymously when attacking the wealthy or the powerful – and who can blame them?

Anyone more net savvy than Ted Stevens knows internet anonymity can be swiped away with a few well-placed subpoenas — if the plaintiff can show that the speaker has truly wronged them. A Delaware Supreme Court case, Doe v. Cahill, articulates this principle in full.

The Citizen Media Law Project provides an excellent synopsis of this case:

Using the alias “Proud Citizen,” an anonymous commenter posted two statements on the “Smyrna/Clayton Issues Blog,” a website sponsored by the Delaware State News. The statements criticized Patrick Cahill, a City Councilman of Smyrna, saying that Cahill was “paranoid” and had undergone “an obvious mental deterioration,” among other things.

Cahill and his wife filed a John Doe lawsuit in state court in Delaware. Pursuant to a local rule of procedure, they sought and obtained authorization of the court to conduct a pre-service deposition of the operator of the “Smyrna/Clayton Issues Blog.” From the blog operator, the Cahills obtained the IP address associated with the postings. They then obtained a court order to compel Comcast (the owner of the IP address) to identify the poster, and Comcast notified Doe of the discovery request. Doe then filed an emergency motion for a protective order.

Technologically speaking, that was the end of “Proud Citizen’s” anonymity. However, Doe then filed an appeal to the Supreme Court of Delaware. The Court ruled that if a defamation plaintiff wants to unmask an anonymous critic, then he must provide enough evidence to show that he has a valid lawsuit. In other words, if a defamation plaintiff can prove that his case has any merit at all, the plaintiff can get the defendant’s information — otherwise, no dice.

Applying this standard, the court held that compelled disclosure of the defendant’s identity was improper because no reasonable person would understand the statements at issue to be asserting facts about Cahill. (source)

This case is only binding in Delaware, but it is the seminal case to which many other courts have pointed when confronted with this very issue. If you have a non-frivolous case, you will be able to track down your defamer. If not, you don’t belong in court anyhow.

The problem with our defamation laws is not that they are too weak — but that they are abused by greedy and unscrupulous corporations and wealthy individuals in order to squelch criticism and dissent. When a speaker has to defend himself in court, whether the plaintiff wins or loses, the defendant suffers economic harm. Pick through these postings. If this article’s perspective were adopted, SLAPP suits would be much easier to bring, and free speech would freeze over. Authoritarian government officials and well-heeled and abusive corporations and individual would have no problem squashing dissent and criticism – especially while our judiciary fails to apply Rule 11 (or Fla. Stat. 57.105) as it should.

On the other hand, anonymous speech is a time honored tradition in a free society, and is often the lifeblood of core political speech. [T]he First Amendment protects an individual’s right to speak anonymously. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”).

Why do you think that is?

Consider the fact that without anonymous speech, there would likely be no United States of America. Neither Alexander Hamilton nor Benjamin Franklin affixed their names to their missives that fed the fires of the Revolution. If they had, they likely would have perished in the hangman’s noose, or in King George’s dungeons. The Federalists and Anti-Federalists alike were forthcoming in their political debates because they were shielded by their pseudonymity.

Today, political dissidents, corporate whistle-blowers, and other guardians of liberty are shielded by their anonymous nature. Without the ability to speak anonymously, the marketplace of ideas would feel a chilling wind blow through it, and more than a few members would close up shop.

If Mr. Chionopoulos truly wishes to stop harmful speech, he should chide the editors at the News-Press for butchering his editorial.

Note: One may ask why I am so certain that the idiocy in this article is to be blamed on an editor, and not on Mr. Chionopoulos. If you read Mr. Chionopoulos’ blawgs here and here, it is obvious that his writing ability is far beyond that demonstrated in the editorial.

I don’t think that the editor slashed the sense out of the editorial on purpose. Nevertheless, as the internet democratizes communication, I find that the “mainstream media” is increasingly hostile to its non-corporate competition. Thus, it hardly surprises me that an established newspaper would be so tactless in printing such an anti-free speech piece.

Too often, I see corporate media doing everything it can to maintain its slipping monopoly on the channels of communication. I hope that the News-Press isn’t jumping on that bandwagon.

update My friend, Ron Coleman, and I disagree on this issue strongly, but are having a very civilized debate about it here.

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