Limits of free speech in the online age were upheld this week, when a district court judge in Idaho ruled that a local newspaper, the Spokesman-Review would have to turn over the identity of an anonymous commenter who has been sued for defamation by a local Republican Party official.
“While individuals are entitled to the right of anonymous free speech, this right is clearly limited when abused,” wrote Judge John Patrick Lester in the ruling, handed down in Coeur d’Alene on Tuesday.
In so deciding, the judge also disagreed with the argument made by the Spokesman-Review’s attorneys that the anonymous comment was protected by so-called “reporter’s privilege,” a legal doctrine that gives journalists constitutional protection from being forced to turn over confidential sources. The court found that the journalist operating the newspaper blog on which the comment was posted, Huckleberries Online, wasn’t acting as a reporter at the time, nor using the commenters as sources for information in his own reporting.
Now the newspaper has 14 days with which to appeal or turn over the identity of the anonymous commenter, who posted on Huckleberries Online in February under the pseudonym “almostinnocentbystander.”
But the court did uphold the newspaper’s argument that it shouldn’t also have to disclose the identities of two other commenters who posted in response to “almostinnocentbystander.”
The attorney for the plaintiff, Tina Jacobson, chair of the Kootenai County Republican Party, had also filed a subpoena for the identities of the subsequent two commenters, who posted under the pseudonyms “Phaedrus” and “OutofStateTater,” arguing that they were witnesses to the alleged defamation.
Reached by phone, attorneys for both Jacobson and The Spokesman-Review downplayed the national significance of the case, saying that the outcome was in keeping with Idaho state law and previous national legal precedent. However, both agreed that the ruling should cause online commenters in general to think more deeply before posting accusatory statements online.
“There has never been a constitutional right to defame someone, whether you do it to their face, in a newspaper, or anonymously online,” said C. Matthew Andersen, Jacobson’s attorney, in an interview with TPM.
Specifically “almostinnocentbystander” posted a comment asking whether $10,000 allegedly missing from the Kootenai County Republican Party Central Committee might be “stuffed inside Tina’s blouse,” which Andersen argued was defamation through an accusation of embezzlement.
Attorneys for the newspaper, including Duane Swinton, countered that the statements were protected and weren’t defamatory to begin with.
“We didn’t agree with the conclusion that statements didn’t fall under the realm of opinion and fanciful speculation,” Swinton told TPM.
Swinton argued that because Jacobson was a public figure, she had a higher standard of proving defamation than a private citizen.
But the judge said that Jacobson had indeed met this burden, showing that the comment was made with “actual malice,” and with “knowledge of reckless falsity or disregard to the truth,” because the commenter, “almostinnocentbystander,” later recanted his comment and apologized for it, evidencing that it wasn’t true.
Plus, Jacobson went through the trouble of getting the Kootenai County Republican Central Committee’s budget audited by independent third-parties, who found that no such money was missing, according to Andersen.
Andersen also told TPM that that the alleged defamatory comment also impacted Jacobson’s day job, as a comptroller for a small but lucrative Coeur d’Alene business, as well as causing her embarrassment among the small, tightly-knit community, population 43,805.
“She had to go sit down with her employer and explain the circumstances of the case,” said Andersen. “In our part of the world being accused of embezzlement online is a very big deal. This is a small community. Everybody knows everybody. She had to explain it church groups, civic groups. It spread through the community like wildfire.”
Swinton, attorney for The Spokesman-Review conceded that the judge’s test that a prima facie , or obvious case of defamation, had indeed occurred, was satisfied. However, he said that the newspaper’s editors and counsel still hadn’t made up their minds whether or not to appeal the decision on another grounds.
Swinton also said that the newspaper had been in contact with “almostinnocentbystander” and that person “has been aware of everything from day one,” regarding the court case. However, the issue of whether or not the commenter actually committed defamation will be handled in a separate lawsuit filed by Andersen on behalf of Jacobson in April. It was in the course of pursuing that lawsuit that Andersen subpoenaed The Spokesman-Review for the names of the three commenters.
“That person will have to decide what they’re going to do,” Swinton told TPM.
Swinton said that he still believed that the entire reason that Jacobson sought the commenter’s identity in the first place was because both of an interparty fight occurring within local Republican Party.