OP/ED by Benjamin & Aaronson Copyright 2010 Xcitement Magazine
NL-Daniel Aaronson & Jamie Benjamin are two long time friends of mine who also happen to be famous first amendment attorneys. Their newest column on “libel on the internet” seemed very fitting for me to run on LIB.
Many who have attended law schools will be familiar with this scenario. It may be the first day, may be the first week but at some time early on in your law school career, a professor in the front of the room gives a fact situation. It’s bazaar, it’s strange and then he or she asks the question “can Party A sue Party D?”. The professor looks around the classroom, picks someone out and demands an answer. A new law student responds “of course not, because there is no reason why A should have the right to sue D”. The professor immediately yells “wrong”, slams down his or her fists and says remember “any body can sue anyone at any time for any reason. That doesn’t mean that A will collect from D, it just means that A can sue D”.
One such way of being sued is by defaming someone. There are two types of defamation: libel, the written or printed word and slander, the spoken word. The essence of these two forms of torts is that either by the spoken or printed word somebody has been injured. Truth is a defense to both of these types of lawsuits.
Then along came the Internet. A place where anyone has the ability to publish their thoughts and to do it anonymously. It has allowed people to give their opinion, state what they believe is fact, or event to make up the most bold faced lies that they can with the feeling of impunity and that they are protected.
However, that is not the case. In fact, more and more lawsuits are occurring because of what is said or written over the Internet. And as to that anonymity, some Judges have ruled that websites have to release Internet addresses of people who posted on their websites. For years the status of the law has been that the First Amendment freedom of speech protected those who wanted to speak anonymously. Meaning specifically that pamphlets could be produced anonymously on a multitude of subjects. However, given the impact and wide range of the Internet the courts seem to be reeling in that anonymous ability to speak at least when it comes to those who are speaking anonymously on the Internet.
The Internet has changed speech and communications in a way that the law never envisioned. It has changed communications and how people communicate and what they communicate. Anyone can be an author, everyone can be a critic, and everyone can disseminate their views in a matter of seconds. No longer does it take effort and maybe even costs to voice an opinion or to defame someone, now it takes a few strokes of the keyboard and a push of the”send” button.
Further, because those opinions, those defamations, those lies are done from behind the keyboard in a closed room there is the feeling that one is not really responsible for their actions. It allows the hyperbole in the speech to go further than maybe what was intended and it takes a baseless opinion and makes it into fact. Opinion again, is not slander or liable.
Saying someone is lousy at a sport, a profession, is an opinion. Saying someone did a specific harm, or stole something is no longer an opinion, but a specific act that can make it libel or slander if it is not true. Many postings, lie between an opinion and fact and get blurred. Many postings of opinion turn into fact and that fact turns into libel and slander.
The Courts seem to be catching up with the practicalities of the Internet and its ability to allow anonymous slander and libel. The Courts seem to be taking away that anonymity and in numerous cases are requiring the disclosure of the Internet addresses of those who are slandering and libeling. The First Amendment truly protects anonymous speech.
But in actuality it protects anonymous opinion. It does not protect anonymous slander or libel and the Courts seem more and more to be following that trend when it comes to the Internet.