Anonymous Versus Fraudulent Internet Speech

The challenges of applying traditional doctrines of speech protection to a new medium

By Jonathan Bick Bick is of counsel at Brach Eichler LLC in Roseland. He is also an adjunct professor at Pace and Rutgers law schools, and the author of 101 Things You Need to Know About Internet Law (Random House 2000).

New Jersey Law Journal September 12, 2012

Anonymous Internet speech, like traditional Internet speech, is protected. The anonymity and potentially unlimited mass audience of Internet speech, however, poses difficulties for application of traditional doctrines governing speech. In particular, traditional speech protection doctrines take into account the potential value to the public at large, wherein the regulation of speech must be balanced with the potential for harm. For Internet speech, the balancing must take into account the possible value of widespread, instantaneous public information.

With regard to anonymous Internet speech, unlike traditional speech, the audience does not know who the speaker is or where the speaker is, and cannot observe the speaker's demeanor, since the nature of the gathering is a publicly accessible Internet forum (an Internet site). Additionally, the audience is as hidden and anonymous as the speaker, thus the reaction of the content reviewer can only be gauged by the reaction reflected in Internet postings, either on the posting site or on a social networking site that links to the posting site.??

Some Internet speech is also political speech, which is among the most highly protected forms of speech, whether traditional or on the Internet.

Recently, events in Syria caused one or more members of the American Syrian community to post unlawful content on the Internet regarding other members of the American Syrian community. In particular, after an American medical doctor of Syrian descent invited a representative of the Syrian government to speak in the United States, a website was prepared and hosted by another American of Syrian descent which portrayed the doctor as a facilitator of terrorism. It stated that "I support … Terrorism against the United States … Suicide bomber … slaughter of innocent children?? ... rape of men and women as torture … killing sprees … (and) international war crimes."

The site had a photo of the doctor, his home phone number, his cell and office phone numbers and other personal data, and it had appeared to have been prepared by the American doctor. The domain name of the site was the doctor's name followed by ".com." The site was entitled "Dr. (doctor's first name) (doctor's last name) MD Official Website."

The state of the law on defamatory statements both traditional and via the Internet is relatively clear. A defendant engages in tortious behavior if he or she knowingly makes a statement, and the statement is such that a reasonable person would foresee that it would be interpreted in context by reasonable members of the audience as a serious expression of intent to harm another.

With respect to offenses consisting of pure speech, the courts have issued rulings attempting to balance the government's interest in protecting individuals with free speech rights under the First Amendment. The Supreme Court, in Watts v. United States, 394 U.S. 705 (1969), found that speech must be subjected to two tests: a subjective test (whether the speaker specifically intended the statement to unlawfully harm another); and an objective test (whether a reasonable person would interpret the statement as an unlawful statement if he knew all the facts).

Beyond governmental interests in speech are an individual's speech interests. Defamation, including slander (for Internet transitory statements, such as by Skype) and libel (for published words, such as on Facebook), is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual or an entity a negative image. This can be also any disparaging statement made by one person about another, which is communicated or published, whether true or false, depending on legal state, to someone other than the person defamed.

In addition to outlawing defamatory speech, the Supreme Court found in Virginia v. Black, 538 U.S. 343 (2003), that speech which resulted in intimidation was prohibited. The Black case considered a statute that prohibited burning a cross with the intent to intimidate another person. More recently, statutes associated with cyber-bullying have also made intimidation speech unlawful.??

Proscription of defamatory speech, like cross-burning and cyber-bullying, is content-based. Each poses limitations for First Amendment activity. However, context also matters. For the purposes of Internet speech, context is a function of the posting entity.??Specifically, context includes the nature of the chat room or discussion board on which the statement was posted, the size and composition of audience that generally monitors that chat room, the frequency of repeat players on the chat room, the public image of the site and prior content.

Injured plaintiffs may benefit from both legal and equitable remedies. While prior restraint of Internet speech is generally disallowed, most other relief is available.

Most interpretations of the First Amendment have found a clear intent to prohibit prior restraints on publications. The Supreme Court held on two separate occasions that injunctions preventing the exercise of speech should be viewed very skeptically (see Near v. Minnesota, 283 U.S. 697 (1931); and New York Times v. United States, 403 U.S. 713 (1971)). The Supreme Court also found that such injunctions carry a presumption of unconstitutionality.

In Near v. Minnesota, the Supreme Court considered an injunction issued by Minnesota courts against The Saturday Press. After finding that several articles published in The Saturday Press were malicious, scandalous or defamatory, the state courts enjoined future publications. The Supreme Court concluded that after-publication punishment was the preferable remedy to restraining speech.

In New York Times v. United States, the United States wanted to stop the publication of stolen Pentagon papers by The New York Times. The government argued that the publication was a threat to national security. The court concluded that a prior restraint on publication of excerpts from the Pentagon Papers violated the First Amendment.

In Reno v. ACLU, 521 U.S. 844 (1997), the court found that Internet speech restrictions merit the same level of scrutiny as traditional speech. In particular, the unanimous Reno court ruled that the Internet is a free-speech zone, deserving of at least as much First Amendment protection as that afforded to books, newspapers and magazines.

While government entities are nearly precluded from prior restraints on speech, individual private action is not. A plaintiff who wishes to preclude another from continuing publishing Internet content need only prove four claims to a court. First, the plaintiff must show that the defendant communicated a defamatory statement. Second, the plaintiff must show that the statement was published or communicated to at least one other person besides the plaintiff. Third, the plaintiff must show that the communication was about the plaintiff and that another party receiving the communication could identify the plaintiff as the subject of the defamatory message. Fourth, the plaintiff must show that the communication injured the plaintiff's reputation.

Additionally, parties who have been harmed by Internet speech may take action against the Internet publishers. However, other than interpleading the Internet speech publisher into the defamatory action, an injured party should consider sending a takedown request based upon the terms of use agreement set forth by the Internet speech publisher.

For example, the terms of use agreement applicable to the website that hosted the defamatory content associated with the American medical doctor of Syrian descent, who invited a representative of the Syrian government to speak in the United States, noted above, prohibited defamation. When the defamed doctor brought this matter to the owner of the hosting entity, the defamatory material was taken down.