Comments on: A brief note about the First Amendment

By: Walt Crawford

Walt Crawford — Sat, 22 Aug 2009 00:02:49 +0000

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…

By: taffe

taffe — Fri, 21 Aug 2009 22:21:11 +0000

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.

By: Walt Crawford

Walt Crawford — Fri, 21 Aug 2009 19:37:05 +0000

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…

By: Comrade PhysioProf

Comrade PhysioProf — Fri, 21 Aug 2009 19:03:43 +0000

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.)

By: Walt Crawford

Walt Crawford — Fri, 21 Aug 2009 18:59:40 +0000

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.)

By: Walt Crawford

Walt Crawford — Fri, 21 Aug 2009 03:00:17 +0000

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.

By: Joe

Joe — Fri, 21 Aug 2009 01:34:09 +0000

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.

By: Comrade PhysioProf

Comrade PhysioProf — Fri, 21 Aug 2009 00:51:59 +0000

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: http://scienceblogs.com/gregladen/2009/08/anonymous_bloggers_id_will_be.php BTW, you are completely, utterly, gobsmackingly fucking wrong in your claim of the irrelevance of the First Amendment to the common law of defamation.

By: Walt Crawford

Walt Crawford — Fri, 21 Aug 2009 00:10:12 +0000

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.

By: Adela

Adela — Fri, 21 Aug 2009 00:04:36 +0000

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.