Julie Hilden, an attorney with a special interest in First Amendment law, recently took the New York courts somewhat to task for their lax standard in the case involving Rosemary Port and Liskula Cohen. She writes, in part:
But could any reasonable person have read this material and truly believed, with any degree of confidence, that Cohen was literally psychotic, or truly a liar? Or, would they have read it in the way that that the blogger ultimately urged the court to read it – as an out-of-control, spewing rant expressing nothing but anger and dislike? I think the answer is the latter.
Hilden also takes Google to task:
Just as disappointing as the court’s conclusion, here, was the cowardly, fence-sitting stance that Google took in the case.
Apparently, Google is attempting to please both sides here – expressing compassion for bullying bloggers’ targets, and also for blogger “privacy.” But only one side has the Constitution behind it. And what bloggers are asking for is not really privacy; it is the right to speak candidly, without fear, and without punishment.
In my view, Google should not be sitting on the fence regarding this issue. The U.S. Supreme Court has made very clear, in McIntyre v. Ohio Elections Comm’n, that anonymous speech is protected, at least to some extent, by the First Amendment. As I discussed in a prior column, there are certainly state interests – such as national security – that might justify penetrating anonymity, but surely it should not be invaded at the drop of a hat. There is also uncertainty as to how far the right to speak anonymously extends outside political contexts (such as McIntyre’s). However, I think the Court is unlikely to wholly reject (thought it may water down) the right to anonymous speech in contexts outside politics.
Read Hilden’s full column on FindLaw.