Tennessee Court Case Shows Limits of Anonymous Blogging

In recent months, we’ve seen multiple court decisions refine what is and is not considered acceptable speech online. In August, the Liskula Cohen v. Google case played out in front of a national audience, teaching us that calling someone a “lying, whoring skank” on a blog was not anonymous protected speech. Now, thanks to a Tennessee court decision, we can add “arsonist” and “drug addict” to that list as well.

Recently, a Tennessee judge denied an anonymous blogger’s request to dismiss their case and quashed a subpoena to reveal their identity. The case (Swartz v. Does) came about because of a website called Stop Swartz. The website, which featured critical comments about Donald and Terry Keller Swartz, two prominent citizens of Old Hickory, Tennessee, was apparently created to expose the Swartzes as bad neighbors. By itself, that may not seem so bad, but the blog also accused the Swartzes of being arsonists, drug addicts, and real estate fraudsters. Seems like a bit of an overreaction to me, but I happen to like all of my neighbors.

From Ars Technica:

The Swartz’s subpoenaed Google to reveal who was behind the Stop Swartz blog—a common tactic in cases like this. While many other anonymous bloggers don’t show up in court, John Doe #1 filed a motion to quash the subpoena. In March 2009, the court denied Doe’s motion but granted a temporary Protective Order to keep him or her anonymous until further review.

Doe then filed a motion to have the case dismissed. At that time, Doe tried to argue that the Swartzes had failed to prove that he was a real person who could be sued in a state court, that Section 230 of the Communications Decency Act would protect him against liability of any comments made by his readers, and that the First Amendment protected users’ rights to criticize public figures.

The CDA claim might have meant something if the blog itself didn’t induce readers to start spying on the Swartzes and report back—if users (and only users) had merely posted the comments on their own with no invitation, it would practically be an open and shut case.

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Ultimately, the court said that the Swartzes have the right to discover Doe’s identity…If Doe actually gets unmasked, it could set a precedent for future cases regarding anonymous speech.

As we explained in our analysis of the Liskula Cohen case, “the First Amendment has never been a license to speak without consequences.” The Stop Swartz blog, which is no longer active, is a prime example of the kind of anonymus speech that is not constitutionally protected. If the blogger were offering opinion, he or she might have been able to continue running the site indefinitely. When you make unsubstantiated criminal allegations against someone, however, you’re most likely going to be found guilty of defamation. If a judge decides that an anonymous commentator is liable for defamation, a blog host (in this case Google) can be legally compelled to provide their identity.

As the law catches up with Internet technology, rulings like this will play an important part in defining what is and is not protected speech online. Hopefully, since people will know the consequences of their actions, this will create an envrionment where peope are more respectful of one another online. In the meantime, however, you must take proactive measures to protect your reputation online. If you don’t know how, just drop us a line. We’re always happy to help.