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GUEST COMMENTARY: Legal community working to find solution for anonymous bloggers

Friday, March 25, 2011 | 12:00 a.m. CDT

Ever get so mad at those anonymous online bloggers and Web posters that you stamp your feet and declare something ought to be done about it?

A few weeks ago at the 20th annual Georgia Bar Media & Judiciary Conference held at the State Bar of Georgia headquarters, I had the opportunity to share advance copies of the Reynolds Courts & Media Law Journal with meeting attendees.

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During informal water cooler conversations about anonymous bloggers, lawyers reacted just like judges, celebrities and regular responsible folks: They don’t like it one bit but haven’t quite thought of a solution.

Well, quietly, judges and lawyers across the country are coming up with some answers. It’s taking some thought and careful crafting from some of the nation’s best legal minds. After all, the U.S. Supreme Court has found that Americans have the right under the First Amendment to speak anonymously. What we don’t have, however, is the right to commit libel.

Think of it as the social media update of Justice Oliver Wendell Holmes’ famous admonition that “your right to swing your fist ends where my nose begins.”

But how do we decide when to unmask these anonymous speakers, and what protections ought to be in place to avoid simply using the courts as tools to harass people who say things we don’t like?

This vexing problem, among others, is examined in the inaugural issue of Courts & Media Law Journal. The Donald W. Reynolds National Center for Courts and Media, which publishes the Courts & Media Law Journal, is a public policy center that explores conflicts between the constitutional right to free speech and the constitutional right to a fair trial.

Thanks to Georgia First Amendment Foundation's Executive Director Hollie Manheimer and Dow Lohnes partner Peter C. Canfield, I was allowed to share the early copies of Courts & Media Law Journal with Georgia lawyers who care deeply about courts and media issues.

I had previously attended events hosted by Manheimer during my nearly six years as executive editor of the Columbus Ledger-Enquirer. I was — and continue to be — impressed with the level of serious study and attention paid to these important constitutional issues by the Georgia bar in general and the Atlanta bar in particular.

That’s one of the reasons I took the Georgia bar exam and recently returned to the practice of law — to be closer to the front lines in the fight for freedom of information, as the print media struggle through their financial troubles.

As a print reporter, I have covered a few big trials.

Every few years, there is a “trial of the century,” during which courts are asked to change venue or grant a new trial to a defendant based on the volume or nature of pretrial publicity. Now, with the advent of social media — where any communication device makes virtually anyone a reporter — these constitutional conflicts will become more complex and difficult to resolve.

I covered the O.J. Simpson case as a young reporter for The Wall Street Journal and wrote one of my all-time favorite stories, which appeared under the headline “OJGDP” (as in O.J. Gross Domestic Product). It is noteworthy that a good deal of the bounty reaped from that case was in the form of increased ad revenues resulting from higher television ratings. But the U.S. Constitution does not forbid profit. Given the current state of the economy, I’d rather like to think the founding fathers wanted the Constitution to encourage profit — the commerce clause, contracts clause and all that.

But the same Constitution also gives defendants like Conrad Murray — who has been charged with involuntary manslaughter in the death of pop superstar Michael Jackson — the right to a fair trial. (I’ll be attending the Murray trial as a courtroom observer, monitoring and writing on free press/fair trial issues).

Because Simpson beat the murder rap, his "Dream Team" was never called upon to appeal to the courts for redress for prejudicial publicity in alleged violation of his rights. Unlike O.J., however, former Enron chief Jeffrey Skilling was convicted in his trial of the century. He appealed.

In the inaugural issue of Courts & Media Law Journal, Wall Street Journal reporter John Emshwiller and Atlanta First Amendment attorney Walter H. Bush of the Carlton Fields law firm team up to delve deeply into the First and Sixth Amendment issues analyzed in the 2010 U.S. Supreme Court decision Skilling v. United States, 130 S.Ct 2896.

First, Bush analyzes the question of denial of Skilling’s motion to change venue. Second, he looks at the motion for a new trial. Both arguments were based on “prejudice” arising out of the volume and nature of trial publicity in the case.

The Bush article asks whether social media has “wrecked” traditional venue law.

We received some wonderful feedback from our first issue, including from U.S. Supreme Court Justice Ruth Bader Ginsburg, who wrote: “I found the articles on Skilling engaging, though, of course, I do not agree with the observation on p. 30, that the court ‘ignored’ the magnitude of the Enron tragedy. The venue question was one on which reasonable minds could (and did) disagree. One can recognize the relevant considerations, yet evaluate them differently. For the majority, the views of the seasoned District Judge, a resident of the community, were key.”

Justice Ginsburg is a graceful, elegant member of the court, and her opinion in Skilling (Bush and I agree) was a deft effort by a skilled jurist struggling through the inherent conflict between our free press and fair trial rights.

Courts & Media Law Journal will be an honest broker of these issues, standing between the courts and the media, and seeking improved relations and understanding between judges and journalists.

Returning to the anonymous blogger piece, which I authored, it seems the courts are all over the map on when and under what circumstances to unmask potential libel defendants in public figure cases. I pose a standard that I think is simple and workable: If the plaintiff can prove falsity and material damages, he or she gets the IP address of the anonymous defendant and is allowed to proceed. Otherwise, the case is thrown out of court.

Ben Holden, director of the Donald W. Reynolds National Center for Courts and Media, is a 1989 graduate of Boalt Hall School of Law and a 1985 graduate of the Missouri School of Journalism. He is a former Missourian editor and serves on the advisory board for the Missourian. He has been licensed to practice in California since 1989. He was admitted to the Georgia bar in 2009. E-mail article submissions or comments to: bholden@unr.edu


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Comments

Ricky Gurley March 25, 2011 | 6:37 a.m.

Ben Holden: "If the plaintiff can prove falsity and material damages, he or she gets the IP address of the anonymous defendant and is allowed to proceed."
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I disagree just slightly, Ben. I am almost there with you Ben. But I have a small exception listed below:

"If the plaintiff can prove falsity with malice and material damages, he or she gets the IP address of the anonymous defendant and is allowed to proceed."

I think the plaintiff should also have to show that there was a malicious intent to post libelous information.

I think we need to take into account bloggers that may use parody to "make fun" of certain people that they disagree with, and other similar instances.

So for example if I blogged about this article and I wrote "It seems that after Ben guzzled 10 bottles of Tequila in less than an hour he decided to write this article based on how much sense he makes here in this article".

Well that is false. And somebody somewhere might not let you write an article in their Newspaper because they may think you have a drinking problem. But a reasonable man could clearly see that (1) It is IMPOSSIBLE to drink 10 bottles of Tequila in less than an hour, much less drink those 10 bottles of Tequila in less than an hour and write an article, and (2) I was not trying to say you are a person with a drinking problem as much as I was trying to say you are a person with a writing problem; in my opinion.

As I stated earlier I am almost right there with you, Ben. I just feel that your standard just might need to be relaxed just a wee bit more.

Ricky Gurley.

(Report Comment)
Ellis Smith March 25, 2011 | 7:38 a.m.

Ricky:

I believe the world record is two bottles of Tequila in a full hour, and the individual was completely debilitated.

My opinion of Justice Ginsburg's views on various Constitutional matters* could not be published in this newspaper.

*- Having watched my daughter and then granddaughters play with cut-out paper dolls and their changes of clothing, I call this the "paper doll theory." If you don't like the way the doll was originally dressed, stick on a change of clothing. Only the dressing has importance, not the doll.

(Report Comment)
Ricky Gurley March 25, 2011 | 8:22 a.m.

Ellis,

Then the word "impossible" was very accurate in my reasoning behind why parody and comical remarks made in a blog post that are designed to be funny and not really malicious was accurate? LOL.

Ellis, the fact is that these Justices simply do not know as much about the Constitution or the Law as you and I do. But, I don't want anyone to tell them that, I think we are far better off secretly critiquing them than we are trying to help them out. The results of highly intelligent people like you and I trying to help them out could be catastrophic for these Justices; it could cause our society to be governed by common sense! That was humor, Ellis.

But there may be a morsel of truth in the statement that I just made. I do think it is possible to have such a thorough and intricate knowledge on these legal issues that one understands all of the complexities about these issues better than most people do; but one may also be in danger of getting "hung up" on the complexities so much that they "miss the forest for the trees"; so to speak. Often enough common sense trumps all other kinds of sense....

Ricky Gurley.

(Report Comment)
Ellis Smith March 25, 2011 | 10:03 a.m.

No disagreements here, Ricky.

Tequila does exhibit in some people who drink it an oddity that apparently has nothing to do with alcohol: heart palpitations. Mexican engineers tell me this is due to some chemical present in the plant from which Tequila is distilled: Agave tequilana weber. The effect is transitory, but it's damned weird.

(Report Comment)
Robert Shettles March 31, 2011 | 9:04 a.m.

Don’t change Prop B
I'm pretty sure you are familiar with Proposition B, voted in as law 11/02/2010. In Prop B there is no reference to cows, pigs or any other farm animal - as many say.
Please point out to me what part of Prop B that will put responsible dog breeders out of business. There are no extraordinary measures required in Prob B and responsible breeders already have these measures in place. (Note the word "responsible.")
There are dogs in puppy mills run by irresponsible breeders. The dogs spend their entire lives in cages too small to turn around in.
If you can’t afford to provide adequate food, water, shelter, a minimum of vet care, exercise and human interaction, then get out of the business. Why are you raising animals to be sold as pets? This is America, land of the free - even for dogs.
The proper treatment of these breeder dogs is a simple issue of common decency. That’s all. Please remember that the only thing necessary for bad things to happen is for good people to sit by and do nothing.
Don’t sit by. Call/email your State Rep.

(Report Comment)
Ricky Gurley March 31, 2011 | 10:02 a.m.

Well Robert Shettles; I'd say your post was just a bit off topic on this thread.......

Ricky B. Gurley.

(Report Comment)

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