A brief note about the First Amendment

I haven’t tracked down a link, but some of you have probably seen this one.
A blogger, writing anonymously/pseudonymously, posted something about someone else (by name) that at least appears to be slander–that is, stating (possible) falsehoods in a manner likely to damage the other person, with reckless disregard for the truth.
Note the difference between opinion (“So-and-so is an awful person”–not generally actionable) and falsehoods (“So-and-so takes bribes”–actionable, albeit not the issue in this case).
The person slandered is suing–and demanded the blogger’s name from their host. And got it.
So far so good…until some people started screaming about the First Amendment and the long tradition of anonymity.

The First Amendment is not at issue*SEE “Clarification”*

The First Amendment prevents prior restraint against speech (except in very narrow cases).
It does not and should not assure that speech never has consequences.
There’s a huge difference between being free to say any fool thing you want–and being able to do so without ever facing consequences. Otherwise, there could be no libel & slander laws. I, for one, wouldn’t really want that–although I appreciate that U.S. libel & slander laws tend to work in favor of speakers rather than those spoken about. (Not true in many other jurisdictions.)
Assured anonymity under all circumstances means speech without consequences. Not automatically a good thing, Tom Paine or no Tom Paine.
Am I wrong? Should the identity of a blogger be protected even when the blogger uses that shield to engage in illegal activities?


The subhead “The First Amendment is not at issue” was a shorthand way of saying, “If Person X has defamed Person Y in a manner that’s legally actionable, and Person X is hiding behind anonymity, the First Amendment should not protect Person X’s anonymity.”
I did not intend to say that the First Amendment was never a factor in libel & slander cases. I certainly did not intend to say that prior restraint is 100% of the First Amendment. I did–and do–say that the First Amendment does not assure that speech never has consequences.
This was a quick post, posted because I do care about free speech (heck, I was at UC Berkeley from 1962-1979, as a student and staff member), I do believe anonymity has many legitimate uses, and it bothers me to see what I regard as a misuse of First Amendment claims–such as what I saw as a claim that the First Amendment should always assure anonymity.
The speed with which the post was written resulted in a too-terse subhead. My apologies.

11 Responses to “A brief note about the First Amendment”

  1. Snarly Old Fart says:

    Slander and libel ain’t what they used to be.
    Consider the credit report industry of today. Fifty years ago, if somebody wrongly called you a deadbeat aloud in public, you could sue him for slander. If he put it in print he could be arrested for libel.
    Today the credit report industry can tell the most outrageous lies about you, over the phone, and over the Internet (across state lines and national boundaries) but by law cannot be punished for it.

  2. Adela says:

    I was of the old tradition if you can’t stand by your words then don’t say them that is until I had to deal with stalking and harassment.
    Anonymity has a purpose but it does get abused so it is a depends on the circumstances case by case matter for me now. Illegal activities though is a clear no you get to face the music deal.

  3. Adela: And I believe there are a number of circumstances where pseudonymity or anonymity make sense, including those you mention. It’s as you say in your last sentence. I think we’re in full agreement.

  4. My reading of what was disclosed in the newspaper report is that this was pretty clearly non-factual expression of opinion, and not an actionable assertion of fact.
    FYI, we are discussing this over at Greg Laden’s Blog:
    BTW, you are completely, utterly, gobsmackingly fucking wrong in your claim of the irrelevance of the First Amendment to the common law of defamation.

  5. Joe says:

    Walt – I think a couple things should be cleared up here (I figure you probably agree, but as a lawyer, if I took your use of First Amendment jargon at face value, you would have a very, very draconian view of the First Amendment.)
    The no prior restraint rule is a small fraction of the First Amendment – especially after WW1. If we were dealing just with it and narrow exceptions, the government could punish people for accurately criticizing the President. The only rule would be that they couldn’t require you to have a government license to speak.
    Secondly, anonymity has a very cherished history in American First Amendment law. Leave Common Sense aside – the doctrine first emerged because Klan dominated states passed laws requiring the NAACP to publish their membership lists.
    But there are lots of other good reasons. You might not want your political views coming up on google because of the possibility they’ll offend your boss/clients/future employers/neighbors. There are a fair number of e-divas who like to try and stifle debate online with baseless threats of lawsuits – anonymity makes that harder. (I remember a campaign among one political group on a message board I used to visit to google bomb people’s real names with out-of-context quotes, for instance).
    So it is something to be taken seriously. I don’t know the specifics of the case you’re talking about, but courts generally require you to be able to prove that you’ve got a good libel case before you can get the person’s name. This isn’t to say anonymity it some diety that is always paramount, but it is important.

  6. Joe: Yes, I oversimplified, and I know that no prior restraint is only part of the First Amendment. (Hey, I’m a member of Americans United, and that issue is First Amendment also…) And, in case it wasn’t clear, I believe anonymity has its place.
    But I’ll stick with my assertion: The First Amendment does not mean that speech never has consequences. And if there’s strong evidence of libel or slander, it’s unreasonable to hide behind anonymity–and if the First Amendment prevented that, it would also seem to preclude libel or slander prosecution in general. Of course, IANAL.
    The person before that: Your reading and what appears on that post are not the same as my reading from another report, which quoted specifically factual claims. Your “BTW” paragraph is of a tone I’m aware seems popular among some SB bloggers. I’ll leave it for now–but with the note that I feel perfectly justified in deleting comments for offensive language. (This one’s my blog.) Particularly when the language adds neither content nor force to the statement.
    And since my claim is that the First Amendment does not assure that speech never has consequences, I’ll stand by my claim. If there has ever been a libel or slander judgment or law that wasn’t struck down by the Supreme Court, then I’ll confidently stand by the claim that the First Amendment does not guarantee that speech never has consequences.

  7. Comment #7 was deleted. If someone wants to show how I’m completely wrong in claiming that the First Amendment does not preclude legitimate lawsuits for defamation (or what I actually said, that the First Amendment does not guarantee that speech never has consequences), using appropriate language, I would of course let such comments stand. I’d welcome them: I’d love to see the case for the First Amendment precluding all legal actions related to speech or assuring that anonymous attacks are protected under all circumstances.
    Content-free and profanity-laden character attacks, not so much. Not at all, for that matter. Yes, this is my blog. Yes, I am entitled to maintain a tone of civility. (For a while, I thought it was “oh, it’s another SB blogger, I’ll cut some slack”–but that’s not the case.) You–author of the deleted comment–have your own blog. I don’t tell you how to run your blog or what language to use there; you don’t get to tell me how to run mine or what language to allow here.
    I just looked at the unedited post again. Yes, I only cited one narrow slice of what the First Amendment does. But what I was saying–that the First Amendment should not protect anonymous speech under all circumstances and should not be a way to avoid consequences of defamation: So far, I have yet to hear any response to that. (Readers may note that I agree with pretty much everything Joe says.)

  8. The First Amendment is not at issue
    The First Amendment prevents prior restraint against speech (except in very narrow cases).

    Dude, this is what you wrote in your original post. It is completely, totally, 100% wrong. As Joe the Lawyer pointed out, the First Amendment is at issue in *every* defamation suit, and prior restraint is only one narrow aspect of First Amendment jurisprudence.
    (Sorry about the foul language, holmes; as you say, this *is* your blog.)

  9. Except that I never said “the First Amendment is never at issue in defamation proceedings.”
    Yes, the subhead was too short and could be misleading. What I am arguing is that using the First Amendment as a basis for objecting, when someone’s anonymity is undone because of legally actionable speech, is unreasonable. That is: “When someone defames someone else behind a mask of anonymity, the First Amendment is not at issue”–it is not the deciding factor in whether the defamer can be unmasked. IANAL, but I believe that to be true.
    However, you’ve raised a good point, and I’ll annotate the post.
    Still: Saying “The First Amendment prevents prior restraint against speech” is not 100% wrong. “(except in very narrow cases)” (the exceptions to prior restraint) is not 100% wrong…

  10. taffe says:

    Part of the problem with your initial “too short” version and your correction following the comments of Joe and Comrade PhysioProf is that the distinction is between an interesting/novel/provocative post and a “meh” post. Your initial version was an interesting (if incorrect) take on the story. The corrected version is now basically dog-bites-man. *Everybody* understands the “Can’t yell ‘fire’ in a crowded theater” principle. The principle that individual rights to trample the rights of *other* citizens are *not* enshrined in the Constitutional law books.
    This makes it look as if your original motivation was simply to take potshots at anonymous/pseudonymous commentary rather than to react to interesting or novel issues raised by this case of name-calling in NY.

  11. I’m delighted to have judges of the “meh”-ness of my posts, particularly offhand ones.
    I was not taking potshots at anonymous or pseudonymous commentary. I was taking potshots at those who claim that any revelation of an anonymous writer’s identity infringes on the First Amendment–or, if you prefer, at the idea that anonymity or pseudonymity is Constitutionally inviolate. Not a major point, and for all of the comments, it was “a brief note”–an offhand post. “Meh” strikes me as an acceptable grade…