Eastern Shore Freedom Of The Press Case Part II

The Maryland Supreme Court case concerning a local developer and local bloggers is put into perspective by the following article.

In defense of anonymous Web posters

By Marta Mossburg
Examiner Columnist | 3/3/09 5:19 AM

Zebulon J. Brodie, an Eastern Shore businessman, may not enjoy having his Dunkin’ Donuts called “dirty” any more than I like being called a “tool” by anonymous Web posters, but he better get used to it.

The Maryland Court of Appeals ruled last week that newspaper Web sites, blogs and other sites do not have to give up the identities of anonymous posters except under well-defined circumstances.

Good. Call those people cowards or jerks or liars, but their speech should be protected in the same way that all other speech is under the First Amendment.

As the decision from the state’s highest court notes, “anonymity or psuedonymity has been a part of the Internet culture” from its beginning. It has also been a part of U.S. culture from our founding.

Anonymous pamphleteers railed against political leaders in party newspapers, “the Republicans with a scurrility that even modern bloggers rarely achieve,” wrote Myron Magnet in the most recent issue of City Journal.

Democracy depends on people speaking their minds to thrive. And in this era of newspaper closings, forcing Web posters to reveal their identity would effectively shutter the “comments” section on most sites, limiting speech even more.

Imagine a United States where the government or a powerful person or company could demand the personal information of account holders on newspaper sites or Internet providers as in China. It sounds far-fetched, but a Maryland trial judge could have made that situation much more likely.

Many postings do nothing to inform and elevate the populace by most standards – unless you count speculation on celebrity relationships and nasty personal attacks against members of the opposite political party in that category. But perceived quality of work should not be the deciding factor of whether someone’s comments deserve anonymity.

As Supreme Court Justice John Paul Stevens wrote in McIntyre v. Ohio Elections Commission, “Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.”

This does not mean that writers should always be given a free pass, however. As Walter Abbott found out, the First Amendment does not protect threats to criminal action. The Parkville, Md., man was convicted in October of writing an e-mail to Gov. Martin O’Malley that said he would strangle him. Abbot was given a suspended sentence of six months’ in prison and two years’ probation.

But that was not the case here. Brodie, the developer with a Centreville Dunkin’ Donuts, wanted the names of anonymous posters writing on a forum run by Independent Newspapers Inc. He claimed they defamed him in their comments about his restaurant.

The Appeals Court decided that Brodie did not correctly identify the posters who made those comments, negating his claim to their names. But the court went farther by outlining a process judges should follow “to balance First Amendment rights with the right to seek protection for defamation.”

It found that a plaintiff must make a reasonable attempt to notify anonymous posters that they are the subject of a subpoena; give the posters time to respond; transcribe the comments exactly as written by the posters; and show how those comments have defamed him or her. The court also found that judges must balance First Amendment rights against the strength of the evidence against them.

That makes sense. Those tests follow ones made in other courts and standardize how Maryland courts should look at claims instead of dealing with them on a case by case basis.

Next time Brodie and those like him would be better served by marshalling supporters to advocate for his cause instead of using the courts to try to skewer a few random Web posters.

In his case, scrupulously maintaining a clean restaurant would have been the best means to combat accusations a minute portion of the population read in an online chat forum instead of publicizing them through a lawsuit.

While those scrutinized by bloggers and other posters may not like what people write about them, tolerating mean accusations, even false ones, is better than silencing the voices of Marylanders. Truth, like lies, needs voices to spread.

Examiner columnist Marta H. Mossburg lives in Baltimore.