Commentary

Do Shield Laws Protect Web Commenters?

Richard Price was indicted in Illinois last year for first-degree murder for allegedly killing a 5-year-old boy. When The Alton Telegraph wrote about the case, the article drew comments by anonymous users who accused Price of drug use and of abusing other children.

Law enforcement officials attempted to subpoena the identities of five of the commenters, but the newspaper opposed the request on the ground that the Illinois shield law allows the paper to keep the identities of sources confidential.

Now, a judge in Madison County has orderedThe Alton Telegraph to reveal the identity of two of the commenters.

The judge, Richard Tognarelli, found that "purplebutterfly" and "mrssully" appeared to have information that could be relevant to the homicide case. He denied the request to unmask three other anonymous commenters because their remarks didn't indicate knowledge of essential information.

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Critically, Tognarelli ruled that it's not clear whether the state's shield law, which lets journalists protect confidential sources under some circumstances, also allows newspapers to preserve commenters' anonymity. He pointed out that the commenters didn't seem to have provided information that contributed to the story -- which weighs against them being considered "sources."

"None of the comments were written until after the article was published," he said in a written decision. "The unsolicited, public nature of the online comments suggests that those comments do not fall within the scope of the Shield Law," he added.

But he also hedged his bets, ruling that the commenters fall within an exception to general principle that journalists can protect their sources. The Illinois law allows courts to order disclosure in certain conditions -- such as when the sources have vital information that can't be obtained through other means. In this case, "purplebutterfly" and "mrssully" seemed to know about Price's alleged history of violence.

Some other judges, including one in Montana, have ruled that commenters should be protected by state shield laws.

But Tognarelli is probably right that the law is ambiguous. Consider, one reason for shield laws is that they allow journalists to honor promises to keep sources' identities confidential. Without those types of assurances, some people wouldn't agree to talk to reporters, meaning that critical information might never come to light. Journalists typically make no similar promises to commenters.

On the other hand, anonymous commenters can offer information that becomes the basis for future stories, as the Citizen Media Law Project's Sam Bayard argues.

Even if a state shield law doesn't protect commenters, the First Amendment guarantees Web users the right to speak anonymously -- though that, too, isn't absolute. In other cases, judges have ordered that anonymous commenters be notified about subpoenas so they can object (via counsel) to being unmasked. It doesn't appear that the commenters were given that opportunity here.

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