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Hipchecking anonymous speech

This article first appeared in the St. Louis Beacon, Oct. 16, 2009 - The protection of anonymous speech in politics has a long tradition dating back to the Revolutionary War. But the Founding Fathers couldn't have imagined the anonymous speech that surfaced during last spring's municipal election in Buffalo Grove Village, near Chicago.

"Hipcheck16" posted an anonymous online comment about the teenage son of Buffalo Grove Village Trustee Lisa Stone. Stone thought the comment was "deeply disturbing" and defamatory. She went to court to find out the identify of the blogger, who has also hired a lawyer to maintain his secrecy.

The anonymity of bloggers on the Internet is surfacing as an increasingly important legal issue. State prosecutors in Madison County, Ill., went to court to obtain the names of readers who had posted comments to the Alton Telegraph and seemed to have information about a murder. Federal prosecutors in Las Vegas sought the names of bloggers to the Las Vegas Review-Journal who boasted of cheating on their taxes and seemed to threaten members of a jury who had convicted a tax evader. And a model in New York went to court to find out who had called her a "skank" in her blog.

In the Alton and New York cases, courts have ruled that the identity of the bloggers had to be revealed. In Las Vegas, the paper turned over identities of bloggers after the government agreed to limit its request to two names rather than the hundred it originally sought.

Just before last April's election in Buffalo Grove Village, the local paper, the Daily Herald, published a story on how nasty the campaign had been. Just after Stone won the election, Hipcheck16 posted a comment on the story criticizing Stone. Her 15-year-old son came to her aid in cyberspace, prompting Hipcheck16 to post the comment in question. The comment is not public; the Daily Herald removed it from the site. But Stone told the Tribune, "It was shocking. An adult doesn't talk to a child like this. It's vile."

Stone's lawyer went to court to obtain the identity of the blogger as a prelude to a possible defamation suit. A Cook County judge ordered the Daily Hearld to reveal the identity of Hipcheck16. The newspaper provided the Internet address, saying that there was no identifying information connected to it. Stone then sought to have Comcast, the Internet service provider, turn over the name. Comcast refused at first, but turned over the name on the judge's order. The judge did not release the name to Stone.

Comcast contacted Hipcheck16, who has hired a lawyer to keep his name from being made public. Arguments are scheduled for Nov. 9.

The ACLU of Illinois says that the case has broad implications for anonymous speech. Ed Yohnka of the ACLU likened the speech to anonymous political pamphlets distributed by Ben Franklin and Thomas Paine. "We sometimes get frightened by the technology and try to use it to limit speech," he told the Tribune.

The Tribune also quoted Notre Dame law professor Patricia Bellia, who said that judges tend to rule in favor of anonymous speech.

It is true that the U.S. Supreme Court has protected anonymous political speech, ruling more than a decade ago that states could not prohibit anonymous speech in political campaigns. In addition, many states have shield laws that allow news organizations to protect confidential sources of information.

But where anonymous bloggers to the Internet appear to have information about a crime or appear to be committing one themselves or have made defamatory claims, judges have been willing to force Internet providers to disclose the bloggers' names. A judge turned aside the Alton Telegraph's attempt to use Illinois' shield law to protect it from having to reveal the identity of two bloggers who seemed knowledgeable about a murder, although the judge did not force the paper to reveal the names of three other bloggers.

The judge in the Alton case noted that there is an important difference between an anonymous blogger and anonymous source - the source has asked the paper for confidentiality, while the blogger has not.

Federal law protects the news organization or Internet service provider from being sued for the content of third-party comments posted to their websites. But the bloggers themselves can be prosecuted or sued.

Read more

To read the Chicago Tribune story on the Buffalo Grove case, click here .

For the Law Scoop item on the model suing to find name of blogger who called her a "skank," click here . - 

For the Law Scoop item on the Las Vegas Review-Journal and Alton Telegraph cases, click here . 

To read the McIntyre Supreme Court decision protecting anonymous political speech, click here .

For a blog on Alton and Las Vegas cases, click here .

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.

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