Anon postings free speech?

December 18, 2012 3:58 PM

I am curious if anonymous postings are protected as free speech.

Our town has an online newspaper that’s run by AOL. Often the topics are pretty mundane and there is little or no posts. However recently a topic came up and ignited a lot of debate. Most of the posters use aliases which is fine but a couple of times the posts have become really offensive. Particularly calling out a person in our town who behaved a little unseemly. I’m curious as to how much of that is protected since it seems that the online paper is largely unmoderated (the posts appear and are pulled if they too inflammatory), unlike a “real” paper where the editor has the discretion to post the letter. Can anonymous posts trigger the same protections as using your real name? Or would they be exempt for some reason? (PS I realize the irony of posting this here without using my real name).

posted by lasamana to law & government (13 answers total)

What protections do you think exist when people use their real names? "Free speech" refers to government interference with speech, not a private editor choosing whether to publish or remove comments. Anonymity is irrelevant in that case. If you're concerned with libel issues, that is another matter entirely.
posted by stopgap at 4:05 PM on December 18, 2012 [12 favorites]

Free speech really only refers to the government intervention with speech. Otherwise you really need to look at the terms and conditions on the site. And some speech is never "protected" - if it's libel or slander or maybe direct threats, etc., so in not sure what protections you are talking about?.
posted by dpx.mfx at 4:05 PM on December 18, 2012

Unless some sort of law enforcement component is involved I don't believe there are any specific protections beyond the garden-variety injunctions agains harassment and incitement to violence, or perhaps some obscenity laws. At least not in the US.
posted by Doleful Creature at 4:06 PM on December 18, 2012

Using one's own name doesn't protect one from being sued for slander or libel. And anonymous posters aren't protected, either, as all sorts of lawsuits show.
posted by Ideefixe at 4:07 PM on December 18, 2012 [2 favorites]

From the United States Courts, a short primer.
posted by Doleful Creature at 4:12 PM on December 18, 2012 [2 favorites]

Posting on a commercial site hosted by your newspaper means that they have some discretion over what comments they will host. You could make a case that your free speech rights were being infringed but it would be difficult and you may not win. Posting your own comments on your own hosted site is much free-er by law. If the government came in and shut you down, you'd have a much more compelling case. If your host who you pay money to for a service, shut you down for the content of your site, your speech, you'd have a compelling case. However, a forum hosted by another entity is not nearly so free.

On preview, there's some intersting stuff in the link from Doleful Creature. Particularly the stuff about students. As a young student journalist who did some silly things like an underground paper and tried to publish articles with "bad" words in them, you don't have nearly the same protections of speech on or using school property as you would off campus. Some of that can seem pretty overreaching and unfortunate.
posted by amanda at 4:31 PM on December 18, 2012

The principle of Reporter's Privilege holds that reporters can't be compelled to reveal anonymous sources. This is a sort of first-amendment protection of anonymity, though it doesn't seem especially applicable to the situation described.
posted by qxntpqbbbqxl at 5:01 PM on December 18, 2012

You cannot be jailed for things you post anonymously, with certain very narrow exceptions (e.g. child porn).

You can be sued for things you post anonymously. The First Amendment doesn't protect your anonymity.
posted by Chocolate Pickle at 5:04 PM on December 18, 2012 [2 favorites]

Putting something anonymously only makes it harder to track who posted it, and therefore presents a two-step hurdle to any legal action. First, how do I figure out who the anonymous person is, and second, how can I establish that the post was written by that person with enough proof that I can use it in some sort of court case?

I have used postings from Craigslist and Facebook to impeach witnesses in criminal court cases. I haven't attempted yet to subpoena either company to retrieve records of the ip addresses of the people putting up those posts, because it hasn't yet been worth the effort. I'm sure it will at some point.

I'm going to have to distinguish what chocolate pickle said a little bit more ... People can take legal action against you for things you write, regardless of whether it is anonymous or not. In general, the first amendment (and similar protections in many state constitutions and regulations) protects you from being criminally liable for the things you say. But there are lots of exceptions, including expressions of imminent harm, writing about topics that have already been protected by some court order, and any number of likely violations of various laws that are still on the books despite the fact that they are probably unconstitutional. (Oregon had a verbal harassment law on the books until 2006, at which point the Court ruled that it was unconstitutional for most practical purposes.)

Your liability civilly for the things you say is a different question, which may or may not involve constitutional protections depending on the issue and the entity in question.
posted by Happydaz at 8:28 PM on December 18, 2012

The Patch's policy is listed on their site. I have never read it, but I know in practice that they will take down comments that are offensive, threatening or that are simply personal attacks. At the top of the home page, there is a link to that Patch's edition's editor. Contact him or her. Since it is a privately owned site, they have no obligation to let someone have their say or can leave up pretty much anything that is not libel or slander.
posted by JohnnyGunn at 10:27 PM on December 18, 2012

Let me put it a different way: You do not have a constitutional right to post anonymously. Your anonymity is not protected by the First Amendment.

However, what you post anonymously has exactly the same protection as it would if you posted non-anonymously.
posted by Chocolate Pickle at 6:47 AM on December 19, 2012 [1 favorite]

This is an issue of what your local newspaper wishes to accomplish with this forum and what its policies are.

My local paper has the usual story comments section. They have a fairly self-explanatory policy for postings, although they don't moderate the site actively but rather primarily reactively (by complaint). A year or so ago they began disallowing all comments on any article involving crime; this forestalls both nasty presumptions and anonymous behavior histories regarding the parties in the story but also flamewars between participants.

Since before the web, though, they have had a feature called "sound off" which basically transcribes anonymous (completely unsigned) voicemail comments about the community. An editor decides what goes in or not, and generally things that would fall under libel law do not, as a matter of course. But a lot goes in and I'll admit it's sometimes interesting and worthwhile. Still, they did research ca. 2009 that showed they were the only paper of their size (~57K) that had such a feature. It was decided to continue it but with slightly stricter inclusion criteria.

Anyway, if things are getting toxic, your paper should probably consider whether it has the staff resources to continue allowing such comments.
posted by dhartung at 1:41 PM on December 19, 2012

Defamation is common on the Internet, and though it may reach the level of libel it's not typically prosecuted. If the Patch (presumable) site is poorly moderated, then be a voice of reason: Trollster, your words about the mayor are over-the-top, perhaps you could chill a little? ReasonableGuy9, thanks for the well thought out analysis, etc. And flag anything libelous.
posted by theora55 at 2:10 PM on December 20, 2012