Anonymous vs. Fraudulent Internet Speech

But even though the foundation of First Amendment rights has prevailed through the centuries, the anonymity and potentially unlimited mass audience of Internet speech poses difficulties for application of traditional doctrines governing speech ' whether political or not, and, it stands to reason, most instances of speech on the Internet are not political in nature.

In particular, traditional speech-protection doctrines take into account the potential value of speech to the public at large, wherein the regulation of speech must be balanced with the potential of harm such speech may bring. It is not acceptable, as we know, to engage in imminent-danger speech: One cannot permissibly shout “Fire!”, for instance, in a crowded movie theater.

For Internet speech, which, of course, cannot stand the same test as in the example cited immediately above, the balancing must take into account the possible value of widespread instantaneous public information of speech to the public at large.

e-Commerce enterprises, although, granted, not typically in the realm of dispensing political speech, nonetheless often have channels and forums through which people ' from consumers to politicians to disgruntled members of particular segments of the popular electorate ' can express themselves. It is because of this that e-commerce counsel should stay up-to-date and versed in First Amendment issues, far and wide. Once words are spoken, or printed and broadcast, the cat, as it were, is out of the bag, and can wreak considerable havoc.

Different Forums

Let us consider some scenarios.

In anonymous Internet speech, as is not the case in instances of traditional speech, an audience ' usually by design on the part of the speaker ' does not know who the speaker is or where the speaker is, and, again, by design, cannot observe the speaker's demeanor, because the nature of the gathering is a publicly accessible Internet forum (an Internet site), which may not feature images or other displays of body language and other forms of demeanor. Additionally, the audience is as hidden and as anonymous as is the speaker, and so the reaction of the content reviewer ' the audience ' can be gauged only by the reactions seen in Internet postings either on the posting site or on a social-networking site that links to the posting site.

Politics, as we know, makes strange partners, and strong repercussions. Recent unrest in Syria, for example, caused one or more members of the American Syrian community ' a third of a world away ' to post unlawful content on the Internet regarding other members of the American Syrian community. In particular, after an American medical doctor of Syrian descent invited a representative of the Syrian government to speak in the United States, a website was prepared and hosted by another American of Syrian descent that portrayed the doctor as a facilitator of terrorism. It stated that, “I support ' Terrorism against the United States ' Suicide bomber ' slaughter of innocent children ' rape of men and women as torture ' killing sprees ' (and) international war crimes.”

The site, which had a photo of the doctor, his home phone number, his cell phone number, office phone number and other personal data, appeared to have been prepared by the doctor himself. The domain name of the site was the doctor's name. The site was entitled: “Dr. (doctor's first name) (doctor's last name) MD Official Website.”

Fairly Bright Line

The state of the law on defamatory statements, traditional and via the Internet, is relatively clear. A defendant engages in tortuous behavior if he or she knowingly makes a statement, and the statement is such that a reasonable person would foresee that it would be interpreted in context by reasonable members of the audience as a serious expression of intent to harm another.

With respect to an offense consisting of pure speech, the courts have issued rulings in which a balance the government's interest in protecting individuals with free speech rights under the First Amendment and the rights of the alleged aggrieved has been achieved. The Supreme Court, in Watts v. United States, 394 U.S. 705 (1969), found that speech must be subject to a subjective test (did the speaker specifically intend the statement to unlawfully harm another?) and an objective test (would a reasonable person interpret the statement as an unlawful statement if the reasonable person knew all the facts?).

Also, beyond governmental interests in speech are an individual's speech interests. Defamation, including slander (for Internet transitory statements such as by Skype) and libel (for published words such as on Facebook), is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual or an entity a negative image in the eyes of a public that perceives the message. This can be also any disparaging statement made by one person about another, which is communicated or published, whether true or false, and depending on state laws, to someone other than the person defamed.

Intimidation Speech Is Prohibited

In addition to outlawing defamatory speech, the Supreme Court found in Virginia v. Black, 538 U.S. 343 (2003), that speech that resulted in intimidation was prohibited. The Black case considered a statute that prohibited burning a cross with the intent to intimidate another person. More recently, statutes associated with cyber bullying have also made intimidation speech unlawful.

Defamatory speech, like cross-burning and cyber bullying, are content-based proscription of speech. Each poses limitations of First Amendment activity; however, context matters. For the purposes of Internet speech, context is a function of the posting entity. Specifically, the context for Internet communication includes:

• The nature of the chat room or discussion board on which the statement was posted;
• The size and composition of audience that generally monitors that chat room;
• The frequency of repeat players in the chat room;
• The public image of the site; and
• Prior content.

Injured plaintiffs may benefit from legal and equitable remedies. While prior restraint of Internet speech is generally disallowed, most other relief is available.

No Prior Restraint on Publications

Most interpretations of the First Amendment have found a clear intent to prohibit prior restraints on publications. The Supreme Court held on two separate occasions that injunctions preventing the exercise of speech should be viewed very skeptically (see, Near v. Minnesota, 283 U.S. 697 (1931) and New York Times v. United States, 403 U.S. 713 (1971)). The Supreme Court also found that such injunctions carry a presumption of unconstitutionality.

Near v. Minnesota

In Near v. Minnesota, the Supreme Court considered an injunction issued by Minnesota courts against The Saturday Press. After finding that several published Saturday Press articles were malicious, scandalous or defamatory, the state courts enjoined the paper from making future publications. The Supreme Court concluded that after-publication punishment was a preferable remedy than was restraining speech.

New York Times v. United States

In New York Times v. United States, the United States wanted to stop the publication by The New York Times of the stolen Pentagon Papers that included details of the war in Vietnam. The government argued that the publication was a threat to national security. The court concluded that a prior restraint on publication of excerpts from the Pentagon Papers violated the First Amendment.

Reno v. ACLU

In Reno v. ACLU, 521 U.S. 844 (1997), the court found that Internet speech restrictions merit the same level of scrutiny as traditional speech. In particular, the unanimous Reno court ruled that the Internet is a free-speech zone, deserving of at least as much First Amendment protection as that afforded to books, newspapers and magazines.

Prior Restraint By Individuals

While government entities are nearly precluded from prior restraints on speech, individual private action is not. A plaintiff who wishes to preclude another from continuing publishing Internet content need prove only four claims to a court:

• The plaintiff must show that the defendant communicated a defamatory statement;
• The plaintiff must show that the statement was published or communicated to at least one other person besides the plaintiff;
• The plaintiff must show that the communication was about the plaintiff and that another party receiving the communication could identify the plaintiff as the subject of the defamatory message; and
• The plaintiff must show that the communication injured the plaintiff's reputation.

Action Against Internet Publishers

Additionally, parties who have been harmed by Internet speech may take action against the Internet publishers. However, other than interpleading the Internet speech publisher into the defamatory action, an injured party should consider sending a takedown request based on the terms-of-use agreement set forth by the Internet speech publisher.

For example, the terms-of-use agreement applicable to the website that hosted the defamatory content associated with the American medical doctor of Syrian descent who invited a representative of the Syrian government to speak in the United States, noted above, prohibited defamation. When the defamed doctor brought this matter to the owner of the hosting entity, the defamatory material was taken down.

Conclusion

Posters to and publishers of Internet content, especially when such comment constitutes speech against individuals, should take care to restrain themselves from making actionable defamatory statements, when the content is not political speech or part of a debate concerning the public.

Whether the posts are in chat rooms of widely accessible websites or on customer-forum pages of e-commerce enterprises' websites, counsel should review what is acceptable and unacceptable speech content with the owners and operators of the websites. In these cases, reputation and profit could hang in the balance, and in these cases, a word could be worth millions ' or not.

The Information Age hasn't much changed a bedrock but evolving principle of American liberty and jurisprudence: The right of citizens to protected speech, particularly political speech.

And, as we have known for millennia, sometimes anonymous speech is the most politic type of speech, particularly in politics.

Indeed, anonymous Internet speech, like traditional Internet speech, is protected. In fact, political speech ' whether it is expressed orally or in print, through such traditional media as newspapers or television ' and political speech expressed through the medium of the Internet are among the most highly protected forms of speech.

But even though the foundation of First Amendment rights has prevailed through the centuries, the anonymity and potentially unlimited mass audience of Internet speech poses difficulties for application of traditional doctrines governing speech ' whether political or not, and, it stands to reason, most instances of speech on the Internet are not political in nature.

In particular, traditional speech-protection doctrines take into account the potential value of speech to the public at large, wherein the regulation of speech must be balanced with the potential of harm such speech may bring. It is not acceptable, as we know, to engage in imminent-danger speech: One cannot permissibly shout “Fire!”, for instance, in a crowded movie theater.

For Internet speech, which, of course, cannot stand the same test as in the example cited immediately above, the balancing must take into account the possible value of widespread instantaneous public information of speech to the public at large.

e-Commerce enterprises, although, granted, not typically in the realm of dispensing political speech, nonetheless often have channels and forums through which people ' from consumers to politicians to disgruntled members of particular segments of the popular electorate ' can express themselves. It is because of this that e-commerce counsel should stay up-to-date and versed in First Amendment issues, far and wide. Once words are spoken, or printed and broadcast, the cat, as it were, is out of the bag, and can wreak considerable havoc.

Different Forums

Let us consider some scenarios.

In anonymous Internet speech, as is not the case in instances of traditional speech, an audience ' usually by design on the part of the speaker ' does not know who the speaker is or where the speaker is, and, again, by design, cannot observe the speaker's demeanor, because the nature of the gathering is a publicly accessible Internet forum (an Internet site), which may not feature images or other displays of body language and other forms of demeanor. Additionally, the audience is as hidden and as anonymous as is the speaker, and so the reaction of the content reviewer ' the audience ' can be gauged only by the reactions seen in Internet postings either on the posting site or on a social-networking site that links to the posting site.

Politics, as we know, makes strange partners, and strong repercussions. Recent unrest in Syria, for example, caused one or more members of the American Syrian community ' a third of a world away ' to post unlawful content on the Internet regarding other members of the American Syrian community. In particular, after an American medical doctor of Syrian descent invited a representative of the Syrian government to speak in the United States, a website was prepared and hosted by another American of Syrian descent that portrayed the doctor as a facilitator of terrorism. It stated that, “I support ' Terrorism against the United States ' Suicide bomber ' slaughter of innocent children ' rape of men and women as torture ' killing sprees ' (and) international war crimes.”

The site, which had a photo of the doctor, his home phone number, his cell phone number, office phone number and other personal data, appeared to have been prepared by the doctor himself. The domain name of the site was the doctor's name. The site was entitled: “Dr. (doctor's first name) (doctor's last name) MD Official Website.”

Fairly Bright Line

The state of the law on defamatory statements, traditional and via the Internet, is relatively clear. A defendant engages in tortuous behavior if he or she knowingly makes a statement, and the statement is such that a reasonable person would foresee that it would be interpreted in context by reasonable members of the audience as a serious expression of intent to harm another.

With respect to an offense consisting of pure speech, the courts have issued rulings in which a balance the government's interest in protecting individuals with free speech rights under the First Amendment and the rights of the alleged aggrieved has been achieved. The Supreme Court, in Watts v. United States , 394 U.S. 705 (1969), found that speech must be subject to a subjective test (did the speaker specifically intend the statement to unlawfully harm another?) and an objective test (would a reasonable person interpret the statement as an unlawful statement if the reasonable person knew all the facts?).

Also, beyond governmental interests in speech are an individual's speech interests. Defamation, including slander (for Internet transitory statements such as by Skype) and libel (for published words such as on Facebook), is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual or an entity a negative image in the eyes of a public that perceives the message. This can be also any disparaging statement made by one person about another, which is communicated or published, whether true or false, and depending on state laws, to someone other than the person defamed.

Intimidation Speech Is Prohibited

In addition to outlawing defamatory speech, the Supreme Court found in Virginia v. Black, 538 U.S. 343 (2003), that speech that resulted in intimidation was prohibited. The Black case considered a statute that prohibited burning a cross with the intent to intimidate another person. More recently, statutes associated with cyber bullying have also made intimidation speech unlawful.

Defamatory speech, like cross-burning and cyber bullying, are content-based proscription of speech. Each poses limitations of First Amendment activity; however, context matters. For the purposes of Internet speech, context is a function of the posting entity. Specifically, the context for Internet communication includes:

• The nature of the chat room or discussion board on which the statement was posted;
• The size and composition of audience that generally monitors that chat room;
• The frequency of repeat players in the chat room;
• The public image of the site; and
• Prior content.

Injured plaintiffs may benefit from legal and equitable remedies. While prior restraint of Internet speech is generally disallowed, most other relief is available.

No Prior Restraint on Publications

Most interpretations of the First Amendment have found a clear intent to prohibit prior restraints on publications. The Supreme Court held on two separate occasions that injunctions preventing the exercise of speech should be viewed very skeptically ( see , Near v. Minnesota , 283 U.S. 697 (1931) and New York Times v. United States , 403 U.S. 713 (1971)). The Supreme Court also found that such injunctions carry a presumption of unconstitutionality.

Near v. Minnesota

In Near v. Minnesota, the Supreme Court considered an injunction issued by Minnesota courts against The Saturday Press. After finding that several published Saturday Press articles were malicious, scandalous or defamatory, the state courts enjoined the paper from making future publications. The Supreme Court concluded that after-publication punishment was a preferable remedy than was restraining speech.

New York Times v. United States

In New York Times v. United States, the United States wanted to stop the publication by The New York Times of the stolen Pentagon Papers that included details of the war in Vietnam. The government argued that the publication was a threat to national security. The court concluded that a prior restraint on publication of excerpts from the Pentagon Papers violated the First Amendment.

Reno v. ACLU

In Reno v. ACLU , 521 U.S. 844 (1997), the court found that Internet speech restrictions merit the same level of scrutiny as traditional speech. In particular, the unanimous Reno court ruled that the Internet is a free-speech zone, deserving of at least as much First Amendment protection as that afforded to books, newspapers and magazines.

Prior Restraint By Individuals

While government entities are nearly precluded from prior restraints on speech, individual private action is not. A plaintiff who wishes to preclude another from continuing publishing Internet content need prove only four claims to a court:

• The plaintiff must show that the defendant communicated a defamatory statement;
• The plaintiff must show that the statement was published or communicated to at least one other person besides the plaintiff;
• The plaintiff must show that the communication was about the plaintiff and that another party receiving the communication could identify the plaintiff as the subject of the defamatory message; and
• The plaintiff must show that the communication injured the plaintiff's reputation.

Action Against Internet Publishers

Additionally, parties who have been harmed by Internet speech may take action against the Internet publishers. However, other than interpleading the Internet speech publisher into the defamatory action, an injured party should consider sending a takedown request based on the terms-of-use agreement set forth by the Internet speech publisher.

For example, the terms-of-use agreement applicable to the website that hosted the defamatory content associated with the American medical doctor of Syrian descent who invited a representative of the Syrian government to speak in the United States, noted above, prohibited defamation. When the defamed doctor brought this matter to the owner of the hosting entity, the defamatory material was taken down.

Conclusion

Posters to and publishers of Internet content, especially when such comment constitutes speech against individuals, should take care to restrain themselves from making actionable defamatory statements, when the content is not political speech or part of a debate concerning the public.

Whether the posts are in chat rooms of widely accessible websites or on customer-forum pages of e-commerce enterprises' websites, counsel should review what is acceptable and unacceptable speech content with the owners and operators of the websites. In these cases, reputation and profit could hang in the balance, and in these cases, a word could be worth millions ' or not.