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The limits of anonymity: Must news organizations protect the identity of unnamed posters?

This article first appeared in the St. Louis Beacon, June 15, 2009 - When the Las Vegas Review-Journal ran a story last month about an upcoming tax-evasion case, one online commentator wrote, "I have not filed in over 30 years." Other anonymous posters wrote that income taxes are illegal and urged anti-tax protests.

This month, a federal grand jury demanded that the newspaper provide the IP addresses and other information about all of those who commented on the story online, according to news reports. The broad subpoena raises a First Amendment issue that is increasingly common around the country, including in a notable case in Alton.

Courts are grappling with the question of whether an anonymous poster is in the same position as a confidential source. If so, news operations in states with "shield laws" could usually withhold the posters' identities from authorities. If the shield law does not apply to unnamed posters, the news organizations would have to turn over the names. Shield laws, which have been adopted in more than 30 states, allow news organizations to protect confidential sources unless prosecutors have done everything possible to obtain the information and it is essential to the prosecution.

The Alton Telegraph case has attracted attention over the past year as state prosecutors have sought the names of posters to a story on a murder case. Madison County Circuit Judge Richard L. Tognarelli ruled last month that the newspaper had to turn over the IP addresses of two posters but not three others.

Tognarelli dodged the question of whether Illinois' shield law covers unidentified posters. He noted that anonymous posters are in a different position than confidential sources. A reporter must first assure a source of confidentiality before obtaining the information from the source, but anonymous posters offer their information without any assurance of confidentiality from the reporter. The difference is important because shield laws are intended to protect the flow of information from sources to reporters.

Even if the shield law protects anonymous posters, it does not provide an absolute shield. Where prosecutors have done everything they can to obtain crucial information in some other way, they can insist on obtaining the information, whether from a confidential source or anonymous poster. Tognarelli decided that two of the five posters had posted specific enough information that the newspaper had to turn over the IP addresses. In the the other three instances, the information was not specific enough, he wrote.

In the Las Vegas case, First Amendment lawyers argue that the subpoena is too broad to be sustained in courts because there is no clear connection between most of the posts and any criminal violation. However, there is no federal shield law to restrain federal prosecutors. Federal shield bills are moving through Congress.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.