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I don't go to right-wing chat rooms or blogs to see what has been written about me, because I don't feel the need to hear from "ARMED2TEETH" or "NotLeftBehind" about how I have the IQ of a snail and the pedigree of a female dog. But my detractors have a right to their opinion -- a right worth protecting.
When people are cloaked by pseudonymous screen names, nastiness runs amok on the Web's public spaces. Posters let loose intemperate, exaggerated and obscenity-laced diatribes that seem to flow directly from their overheated brains to their typing fingers without any civilizing filter.
But the Web's vulgarity is part of its virtue ? you don't get a challenging ride without loosening the reins.
Of course, not everyone feels this way. There are companies and public figures unhappy with the Wild and Wooly Web. They want to know who their critics are, and they want to shut them up.
Take Patrick Cahill, a councilman in the Delaware town of Smyrna. Last year, someone with the alias "Proud Citizen" posted a message on a blog about local town issues that said Cahill "has devoted all his energy to being a divisive impediment to any kind of cooperative movement." The entry also referred to Cahill's "obvious mental deterioration." Another posting called Cahill "paranoid."
Were the Web truly anonymous, these slings and arrows would just have to be tolerated. The best that Cahill and others being bad-mouthed could do is respond with their own version of the truth. But it turns out that a Web posting is one of the least anonymous modes of communication. It leaves behind electronic bread crumbs that can be traced to the original source.
Enter the lawyers.
Cahill and his wife sued Proud Citizen for defamation and obtained an order for the Internet service provider to disclose his identity. Proud Citizen, who was alerted by his ISP to the order, sought to quash it, since providing his name would violate his right to anonymously criticize a public official.
Our tradition of anonymous political speech goes back to our founding. Publius was the pseudonym chosen by founders James Madison, Alexander Hamilton and John Jay in penning the Federalist Papers to generate support for the new Constitution. Madison and Hamilton used the noms de guerre Helvidius and Pacificus in debating President Washington's declaration of neutrality in the war between the British and the French.
The U.S. Supreme Court has repeatedly said that individuals don't have to come forward and face possible retribution as a price for adding their voice to the marketplace.
So where is the right balance? There are legitimate Web-based defamation cases, and victims should be able to pursue them. But unmasking bloggers has become its own subspecialty for business lawyers, giving deep-pocket companies a way to intimidate their critics.
"The mere filing of the John Doe action will probably slow the postings," wrote lawyers Jay Eisenhofer and Sidney Liebesman in a business law journal in 2000. The article was educating attorneys on ways to compel discovery of a poster's identity when confidential, false or defamatory material appears on a message board.
This becomes dangerous to freedom when courts become the unwitting handmaidens of those seeking to unearth the identities of whistleblowers, unhappy employees or disgruntled customers or constituents. If free speech means anything, it means people shouldn't need a lawyer on retainer to exercise their rights.
The Delaware Supreme Court thought so, too.
In a unanimous decision earlier this month, the court ruled against the Cahills, saying that before a court orders an anonymous blogger's identity revealed, the defamation case has to be virtually proved. The court erected a high barrier against disclosure to encourage broad participation in our public dialogue, even if hyperbole and vulgar insults are part of the deal.
The Cahills had failed to make out a defamation case, according to the court, because Proud Citizen was stating his opinion, not making medical diagnoses. "Blogs and chat rooms tend to be vehicles for expression of opinions," the court said. "By their very nature, they are not a source of facts or data upon which a reasonable person would rely."
The freewheeling Web should be as much as possible a lawyer-free zone. Few things have been as democratizing as giving everyone with a connection to the Internet the ability to publish thoughts for a world audience. But for this to continue, we need the courts to stand for freedom, holding at bay the lawyers and their insulted clients.
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