In the wake of the decision forcing Google to reveal the identity of a blogger who allegedly defamed model Liskula Cohen (the court order, our legal analysis, and our initial coverage), there has been a lot of misinformation floating around the Internet. Here are the top 5 myths about the case, followed by a little mythbusting from the ReputationDefender team.
Myth 1: This is the end of anonymity on the Internet (link here)
This case is not the end of anonymous speech on the Internet. This was just one order from a state trial judge in New York City. The decision in this case does not have any legal power over courts outside New York, and it can still be overturned or modified by appellate courts in New York. Bloggers in other states are completely unaffected by this decision, and the decision barely has any effect within New York.
The United States Supreme Court has not weighed in on the subject of anonymous blogging, although there are other U.S. Supreme Court cases about anonymous speech that have generally upheld the right to speak anonymously until other laws are broken.
And, there are still technical means (such as proxy servers and anonymous browsing) that allow completely anonymous speech. It looks like the accused blogger–Rosemary Port–used her real email address when setting up her “Skanks in New York” blog. If the blogger had used a fake email address and a proxy server, she might still be anonymous today.
High-profile celebrity cases like this one get a lot of attention, but rarely set important legal precedent. So far, this case has done no more to make anonymous blogging illegal than the O.J. Simpson case did to make murder legal.
So rest easy, anonymous bloggers. The rules are still the same: don’t break other laws, and your anonymity is still safe. An anonymous blogger can still criticize the President, pontificate about public policy, or just ramble about his day.
Myth 2: Google is on the hook (link here)
Status: MYTH BUSTED
Contrary to some reports, Google is not liable to Liskula Cohen for anything, and is probably not liable to revealed blogger Rosemary Port either.
Liskula Cohen’s lawsuit named Google as a defendant, but all that she wanted from Google was the identity of the blogger behind the “skanksnyc.blogspot.com” blog. As soon as the court ordered Google to reveal the email address of the “skank blogger” (now known to be Rosemary Port, an aquaintance of Cohen and a student at the Fashion Institute of Technology) Google’s role in the case was done. Google doesn’t owe a single dollar to Liskula Cohen. In fact a federal law–Section 230 of the Communications Decency Act of 1996 (“CDA”)–means that Google cannot be held liable for what bloggers say through the Blogger/Blogspot.com service that Google runs, even if The New York Times might be held liable for running the exact same content in its print edition. In short, Section 230 of the CDA immunizes Internet companies from liability for what is published on their sites to a much higher degree than dead-tree print media.
Outted blogger Rosemary Port has now sued Google for $15 million, claiming that Google violated her right to privacy by revealing her identity. To put it simply, Rosemary Port’s lawsuit against Google is a guaranteed loser. Google went to court to defend her identity and did legal everything in its power to stop it from being revealed. Google paid high-power lawyers (probably better ones than Port could afford on a student’s budget) to try and keep Port’s name a secret. But the court ordered Google to release her name anyway. There was nothing more for Google to do at that point; Google cannot ignore a court order.
To put any doubt to rest, the Terms of Service for using Google’s Blogger tools include:
“… You agree that Google may access or disclose your personal information, including the content of your communications, if Google is required to do so in order to comply with any valid legal process or governmental request (such as a search warrant, subpoena, statute, or court order)…”
By signing up to host her blog on Blogspot, Rosemary Port agreed that her identity might be disclosed if a court ordered Google to disclose it. That is exactly what happened. There is not much left for a court to decide here.
Myth 3: The judge trampled on the First Amendment (link here)
Status: MYTH BUSTED
As we have already said once, this is not a big First Amendment case. The First Amendment is important to a free and healthy democracy. And the rights inherent in the First Amendment should be upheld to their highest extent. But the right to speak freely has limits, and libel has always been one of the limits.
Contrary to some assertions, there is a First Amendment issue in the case. Google is a private company and could choose to allow or disallow a blog for any reason. Google’s internal decisions about what kinds of content to publish do not implicate the First Amendment in any way. But the First Amendment does become relevant when the government (through the courts) forces Google to reveal the identity of a speaker. Thus, there is still a need to consider the First Amendment when analyzing this case.
But, the First Amendment analysis need not go very far. The First Amendment has never been a license to speak without consequences. The First Amendment establishes a right to speak without government censorship–and especially establishes the right to speak without having to seek government approval first. Hundreds of years of cases have held that the First Amendment prohibits so-called “prior restraint” (attempts by the government to stop a speaker before he or she has made a statement). But hundreds of years of cases also say that the First Amendment does not mean freedom from consequences: falsely shouting “fire” in a crowded theater is a form of speech that is not protected by the First Amendment. Other forms of speech that have consequences include inciting a riot, revealing classified secrets to the enemy, and libeling or slandering a private figure.
The same goes for anonymity. The First Amendment means that the government may not demand to know the identity of people who blog about politics or distribute leaflets criticizing the administration. But private parties who have been defamed (just like Liskula Cohen believes she has been) have always been able to seek out the person who they think defamed them, so that they can sue in court.
These ideas have always been part of the First Amendment and this case is nothing new on those grounds. The only question is whether model Liskula Cohen showed enough of a likelihood of winning a defamation lawsuit that she deserved to know the identity of the person who attacked her online. The judge in this case–after weighing all of the evidence and reading all of Port’s blog posts about Cohen-decided that Cohen had a good chance of winning and deserved to know the name of her attacker so that she could sue the blogger in court (and so that blogger could have a chance to defend herself).
Courts have been very reluctant to unmask anonymous speakers who write about politics; the Federalist Papers–some of the most important documents debating the Constitution–were written under the pseudonym “Publius.” Even the responses to the Federalist Papers were written under assumed names like “Federal Farmer” and “The Republican,” some of which are still unidentified today.
Myth 4: The Supreme Court said it (link here)
Status: Technically right, but really BUSTED
Well, yes, but that’s not really what people mean. The case was decided by the Supreme Court . . . of Manhattan.
In most states, the “Supreme Court” is the most important court. And the Supreme Court of the United States is the most important court in the country.
But New York is a little different. In New York, the lowest court is called the “Supreme Court.” And each judge on that court is called a “Justice”–the title normally reserved for members of the most important court. But this “Supreme Court” is really a trial court that should be called a “Superior Court” or even a “Municipal Court.” The most important court in New York is called the “New York Court of Appeals” instead.
In chart format:
Most important: The Supreme Court of the United States
Middle: The United States Courts of Appeals
Least important: United States District Courts
Most important: “State Supreme Court”
Middle: “State Court of Appeal”
Least important: “Superior Court” or “Municipal Court”
Most important: “New York Court of Appeals”
Middle: “Appellate Division”
Least important: “Supreme Court”
Myth 5: The blogger already lost (link here)
Status: MYTH BUSTED
The judge did not determine whether the blogger defamed Liskula Cohen. Rosemary Port still has a chance to defend herself against the allegation that she defamed Cohen. Rosemary can hire her own lawyers and tell her side of the story to a jury, just like any other person accused of defamation. The only thing that has happened so far is that a judge has identified Port so that Cohen may file a lawsuit against Port. Normally, that would be the first step in the process, but here Cohen had to go through an extra step because Port was blogging anonymously.
Now, Liskula Cohen can decide if she wants to sue the blogger. And the blogger will have the chance to defend herself in court if Cohen goes ahead with a lawsuit. So far, the judge has said only that Cohen has a chance of winning her lawsuit, not that she is certain to do so. If the lawsuit proceeds, it will be up to a jury to decide if the statements on the “skank” blog add up to defamation. Update: Cohen has dropped her lawsuit against Rosemary Port and decided not to proceed to trial.