The First Amendment lives! (At least in Delaware.)

This strikes me as not only the right legal result, but a good result for bloggers:

In a decision hailed by free-speech advocates, the Delaware Supreme Court on Wednesday reversed a lower court decision requiring an Internet service provider to disclose the identity of an anonymous blogger who targeted a local elected official.

In a 34-page opinion, the justices said a Superior Court judge should have required Smyrna town councilman Patrick Cahill to make a stronger case that he and his wife, Julia, had been defamed before ordering Comcast Cable Communications to disclose the identities of four anonymous posters to a blog site operated by Independent Newspapers Inc., publisher of the Delaware State News.

In a series of obscenity-laced tirades, the bloggers, among other things, pointed to Cahill's "obvious mental deterioration," and made several sexual references about him and his wife, including using the name "Gahill" to suggest that Cahill, who has publicly feuded with Smyrna Mayor Mark Schaeffer, is homosexual.

First of all, I'm not at all sure that suggesting someone is a homosexual is any more defamatory than suggesting he's a member of a certain race. What I said two years ago still applies:
As to the tortious nature of the conduct, I am not at all sure of the current status of defamation law, and there are public policy considerations underlying what is legally actionable and what is not. If, for example, rumors are spread that a white man is black, he cannot prevail under a defamation theory, because legally, it ought not be defamation to say that someone is black. Or Muslim. Whether the imputation of homosexuality is defamatory these days is open to question, at least in some places.

Should it be?

If the imputation of homosexuality is defamation, then is that not itself an outright admission by the tort system that there is something so dreadful about homosexuality that we will allow you to sue others if they accuse you of it?

In any case, I guess imputing homosexuality is defamatory in Delaware. Because under this theory, the plaintiff demanded the identities of the anonymous bloggers and persuaded the trial court to order the bloggers' host(s) to "unmask" them.

The Supreme Court, however, reversed, holding that a higher standard was required, and that the plaintiff would have to prove defamation:

"Because the trial judge applied a standard insufficiently protective of Doe's First Amendment right to speak anonymously, we reverse that judgment," Chief Justice Myron Steele wrote.

Steele described the Internet as a "unique democratizing medium unlike anything that has come before," and said anonymous speech in blogs and chat rooms in some instances can become the modern equivalent of political pamphleteering. Accordingly, a plaintiff claiming defamation should be required to provide sufficient evidence to overcome a defendant's motion for summary judgment before a court orders the disclosure of a blogger's identity.

"We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously," Steele wrote. "The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all."

I like that language. The First Amendment is alive and well in Delaware. Hell, Delaware's less than an hour away from me; perhaps I should move. (Nah. Despite the ferocity of my anarchic libertarian political views, I'm too personally conservative to do things like slander people willy-nilly.)

Anyway, in order to obtain the identities of anonymous bloggers (at least in Delaware), the Court announced a new standard:

a plaintiff must first try to notify the anonymous poster that he is the subject of subpoena or request for a court to disclose his identity, allowing the poster time to oppose the request. The plaintiff would then have to provide prima facie evidence of defamation strong enough to overcome a summary judgment motion.

"The decision of the Supreme Court helps provide protection for anonymous bloggers and anonymous speakers in general from lawsuits which have little or no merit and are filed solely to intimidate the speaker or suppress the speech," said David Finger, a Wilmington attorney representing John Doe No. 1.

Juan non-Volokh has more, and links to the court's opinion.

I am not much of a fan of libel actions, which I worry will increasingly be used as a cynical tool to silence or intimidate bloggers. (Passions have already been mobilized in certain quarters....)

I hope more states follow Delaware's lead.

posted by Eric on 10.06.05 at 08:21 PM





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Eric likes the Constitution State's Supreme Court's ruling on a First Amendment case a few days ago. (Well, the act... [Read More]
Tracked on October 7, 2005 10:01 AM



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Free speech triumphant. That's good.

Well, I've been called a homosexual ("faggot") even though I'm gynosexual, and I've been called a Jew ("kike") even though I am not of that faith, by teenage punks riding by in their cars and yelling out the window. Says far more about them than about me or anybody else.



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