Combs Spouts Off

In Delaware, at least, anonymous political speech is still protected:

DOVER, Del. – The Delaware Supreme Court rejected a town councilman’s quest to find out who posted obscenity-laden tirades about him on the Internet, saying free speech concerns outweighed the politician’s argument that he was defamed.

The decision Wednesday reversed a lower court ruling ordering an Internet service provider to disclose the identity of four anonymous posters to a blog site operated by Independent Newspapers Inc., publisher of the Delaware State News.

The posted entries, among other things, accused Smyrna councilman Patrick Cahill of “obvious mental deterioration” and used the name “Gahill” to suggest that he is homosexual.

In June, the lower court ruled that Cahill had established a “good faith basis” for contending that he and his wife were victims of defamation, and it affirmed a previous order for Comcast Cable Communications to disclose the bloggers’ identities.

But Chief Justice Myron Steele likened anonymous Internet speech to anonymous political pamphleteering, a practice the U.S. Supreme Court characterized in 1995 as “an honorable tradition of advocacy and dissent.”

An honorable tradition that the Supreme Court unfortunately forgot about when it was considering the implications of McCain-Feingold.

Chief Justice Steele understands that — unlike the old media — blogs and the Internet have a built-in, free, and nearly instantaneous feedback mechanism:

Steele also noted that plaintiffs in such cases can use the Internet to respond to character attacks and “generally set the record straight,” and that, as in Cahill’s case, blogs and chatrooms tend to be vehicles for people to express opinions, not facts.

It’s intellectually fashionable these days to conflate facts with opinions and beliefs, so Steele also noted that there is a distinction between a statement of fact and an opinion, and we’re entitled to whatever opinions we choose:

“Given the context, no reasonable person could have interpreted these statements as being anything other than opinion. … The statements are, therefore, incapable of a defamatory meaning,” he wrote.

Professor Bainbridge has some cogent comments, good excerpts from the decision, and a PDF of the decision itself available for download. It’s worth reading if you’re interested in such matters. Justice Steele recognized that defamation suits against anonymous critics are often brought merely to unmask the critic, a tactic intended to intimidate and silence criticism. To prevent this chilling of speech and discouragement of debate, Bainbridge notes, the majority set a high burden for plaintiffs:

The court finally decided that “before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion.” In other words, the plaintiff “must submit sufficient evidence to establish a prima facie case for each essential element of the claim in question” before being allowed to discover the identity of the blogger in question. In the case of public political figures, the burden of surviving a summary judgment motion in defamation cases is so stringent that public figures are highly unlikely to be able to unmask their anonymous critics.

As far as I can tell, this is a major win for bloggers and the First Amendment.

The ruling affects only Delaware, of course. And this is the first time a state supreme court has ruled to protect the anonymity of bloggers. But it’s nevertheless very important. At some point, various state and federal campaign finance laws will be used to attempt to crush the rights of anonymous political speech and of expressing one’s opinions freely. It’s likely that bloggers and new media will be in the center of that conflict. And the points made in this ruling are likely to be cited by the defenders of free speech.

Therefore, I’m surprised at how little attention this got last week (the ruling was Oct. 5). I missed Bainbridge’s post (haven’t dropped by his place in a while). A Google Blog search didn’t turn up any other "big name" blogs commenting on this ruling. Of course, Instapundit could have done one of his "This is good news" posts — but who has time to click every single one of those?

A tip o’ the hat to VRB, whose email drew it to my attention.

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