Unmasking Of Blogger Needn't Doom First Amendment

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One year ago, an acquaintance of model Liskula Cohen created a blog whose sole purpose appeared to be insulting her. The blog, Skanks In NYC, had five entries, all of which maligned Cohen. The entries also had photos of her in provocative poses. Those photos, combined with the captions and copy like, "I would have to say that the first place award for 'Skankiest in NYC' would have to go to Liskula Gentile Cohen," spurred New York County Judge Joan Madden to conclude that the "thrust of the blog is that [Cohen] is a promiscuous women."

Therefore, Madden ruled, Cohen is entitled to sue the blogger for defamation. But Cohen first needed to know the blogger's name, so Madden ordered Google (which hosted the now-defunct blog) to reveal all identifying information.

While there's been talk about this ruling spelling some sort of doom for freewheeling blog culture, it's important to realize that Madden isn't out on a limb with this decision. Critically, Madden didn't rule that just using the word "skank" is libelous. The opinion referred specifically to the use of the word combined with the provocative photos. Madden didn't say that any one word or photo alone might constitute libel, but said that when the blog is viewed as a whole it might be defamatory.

Madden also didn't rule that Cohen was actually defamed. That's still up to a jury, should the matter get that far. Jurors might well conclude that Cohen is making a big deal over nothing and that few people would have ever seen the blog were it not for Cohen's lawsuit.

In ordering that the blogger be identified, Madden followed the standards used by many other courts. For years, people have attempted to unmask anonymous bloggers and Web commenters. Many judges who have considered the issue have concluded that Web authors are entitled to preserve their anonymity unless there's good reason to think they might lose a libel trial.

In Maryland, for instance -- in a case admittedly less tabloid-worthy than Cohen's -- an appellate court recently ruled a local Dunkin' Donuts owner wasn't entitled to unmask a Web commenter who wrote that the store was "one of the most dirty and unsanitary-looking food-service places I have seen." That's because the owner didn't file his claim until after the statute of limitations for libel had expired. Therefore, the court held, the owner had no realistic chance of winning a defamation case.

A jury might ultimately decide that Cohen wasn't defamed. But even free speech advocates like the Citizen's Media Law Project aren't criticizing Madden's decision. As far back as January, Sam Bayard, assistant director of the organization, said he thought this decision was a "hard call" -- an opinion he repeated earlier this week. In fact, after viewing the entire blog in January, he told MediaPost that he thought a judge might order the blogger be unmasked. "We're beginning to think that a judge might be reluctant to rule as a matter of law that these statements aren't capable of a defamatory meaning," he said at the time.

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0 comments on "Unmasking Of Blogger Needn't Doom First Amendment".

1. Michael Roberts Anonymous Blogger bounty hunter
   

   commented on: August 22, 2009 at 7:21 a.m.

   This is actually excellent news for victims of the vicious Internet smear campaigns waged by anonymous bloggers who are very difficult to identify. I hope that this New York president will be adopted in other jurisdictions, it is a long overdue injection of common sense into the technology that the legal system can't seem to keep up with.

   If the jury agrees with the author, that the order will be vindicated and pay the price that is associated with so-called free speech. If the jury decides with the authors comments, then the plaintiff will pay the price.

   No speech is free, there is always a cost. In instances where anonymous free speech is justified for the purposes of whistleblowing for alerting a community to the presence of a sexual predator is a good thing. But when it is used to spread lies and vicious rumors, or for that matter truths to just do not need to be told, that it is a bad thing.

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